Justice Greenwood considered the application to set aside a subpoena issued to the Torres Strait Regional Authority (TSRA) compelling production of an anthropological report and the allocation of costs in relation to this matter. His Honour found that s 85A of the Native Title Act—concerning cost determinations—applies to the application for leave to issue the subpoena, service of the subpoena and the notice of a motion to set aside the subpoena.
The Court found that for the purposes of s 85A, ‘the Court must be satisfied that the conduct of the party was so unreasonable that the other party should obtain the costs of the action’. Not satisfied that the respondent’s conduct was so unreasonable, His Honour held that no basis was demonstrated for making an order as to costs in relation to the TSRA’s notice of motion to set aside the subpoena.
However, costs for compliance with the subpoena were awarded, as the TSRA ‘ought not to be put to expense’ in addressing a matter at the hands of the issuing party. Hence, the respondent was ordered to pay reasonable expenses incurred to the TSRA for compliance with the subpoena.