North, Mansfield and Gilmour JJ
This case concerns the payment of legal costs by the Yindjibarndi native title claimants, arising out of their unsuccessful appeal against the grant of certain mining tenements. The Court held that the Yindjibarndi claimants should pay one-half of FMG Pilbara Pty Ltd’s costs of the appeal. The State of Western Australia did not apply for costs.
The starting point for determining whether and to what extent the claimants should bear FMG’s costs was the Court’s general discretion under s 43 of the Federal Court of Australia Act 1975 (Cth) (the FCA Act) to make such order as to costs as it considers appropriate. That discretion is absolute and unfettered, but must be exercised judicially. The usual rule is that costs would ordinarily follow the event, but special circumstances may justify some other order.
Section 85A of the Native Title Act 1993 (Cth) provides that, unless the Court orders otherwise, each party to a proceeding must bear their own costs. Previous cases established that s 85A removes the expectation that unsuccessful parties will usually pay the successful parties’ costs, but the Court still has discretion under s 43 of the FCA Act. Case law also establishes that s 85A applies not only to first instance decisions made under s 61 Native Title Act 1993, but also to appeals from such decisions and applications for special leave to appeal.
The Court cited Murray v Registrar of National Native Title Tribunal [2003] FCAFC 220 for the proposition that, in respect of proceedings which are not directly caught by the operation of s 85A, that section may nevertheless be relevant to the way in which the Court exercises its discretion about costs. In that case, it was held that in proceedings that consider the interpretation of the Native Title Act 1993, it is appropriate for Courts to ‘follow the spirit’ of s 85A. Murray involved an application to review the Native Title Registrar’s decision to register an Indigenous Land Use Agreement, and the Court cited s 85A in departing from the normal rule and making no order as to costs. Another case, Northern Territory of Australia v Doepel (No 2) [2004] FCA 46, dealt with a review of the Registrar’s decision to place a native title application on the Claims Register. Again, although s 85A was not directly engaged, its spirit informed the Court’s decision as to costs.
By contrast, in Brownley v Western Australia [1999] FCA 1431 and Lardil Peoples v State of Queensland [2001] FCA 414, the Court focused on whether or not s 85A applied in strict terms, and in both cases declined to depart from the usual rule governing the exercise of the discretion under s 43.
The Court did not consider it necessary to determine conclusively whether or not s 85A applied to the present proceedings, namely an appeal under s 169 Native Title Act 1993 (Cth) against a decision of the Tribunal. The Court concluded that whether it was required to apply s 85A directly or whether it would simply apply s 85A’s spirit, the outcome would be the same.
In deciding what order to make, the Court took into account its previous comments about the claimant’s disorganised conduct of the case and some problems in the way their case was presented. Some of the arguments advanced in the appeal were not well founded. On the other hand, the primary issues raised in the appeal were not without merit, and it could not be said that the claimants should have known that their case would not succeed. On balance, the Court considered it appropriate to order the claimants to pay one half of FMG’s costs of the appeal.