Mansfield, Kenny, Rares, Jagot and Mortimer JJ
In this matter, the Full Federal Court considered whether the Banjima People were entitled to be paid their costs of the State’s unsuccessful appeal in Banjima People v State of Western Australia [2015] FCAFC 84. The Court had previously ordered the State to pay the costs of the Banjima People for a different application filed by the State after judgment on the appeal had been published, which the Court considered involved the Banjima People in unreasonable expenditure (see Banjima People v State of Western Australia (No 2) [2015] FCAFC 171).
The Banjima people argued that the State should pay their costs in relation to the appeal on the basis that the State was wholly unsuccessful, the appeal was against a determination of native title, several of the grounds of appeal required the hearing of a large portion of the evidence given at hearing, certain grounds were unmeritorious, one was abandoned at the hearing and one was withdrawn after the Banjima people had filed submissions.
The Court considered the relevant principles on the award of costs set out in the decision of Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163 but were not satisfied that there was sufficient reason to make a costs order against the State. This was because both the State and Banjima People challenged the native title determination, the appeals were heard together, both parties raised grounds in their respective notices of appeal which were abandoned at various times and, while the State was wholly unsuccessful, the Banjima People succeeded on one ground but not the other.
Their Honours considered the Banjima People's submissions only relied upon the fact of the State’s lack of success. Accordingly, there was no principled basis identified by the Banjima People which justifying the making of a costs order in WAD 73 of 2014.
The Court ordered that each party bear their own costs of the appeals.