Barker J
In this matter, Barker J considered a costs application brought by the native title compensation applicants (Claimants) against the State of Western Australia (the State). The principal issue for determination was whether, having regard to s 85A(2) of the Native Title Act 1993 (Cth) (NTA), the Court should award to the Claimants the costs of the proceeding on an indemnity basis in relation to the State's change of position.
Facts
When the compensation proceeding was commenced, both the claimants and the State proceeded on a shared understanding that, but for the creation of the Gibson Desert Nature Reserve in 1977 by the State, the claimants and their predecessors would have held exclusive possession native title over that area.
Ultimately, however, in Ward and Others v Western Australia and Another (No 3) (2015) 233 FCR 1; [2015] FCA 658, the Court ruled that a presumed exclusive possession native title had, in effect, been reduced to a non‑exclusive possession native title by the grant of an oil prospecting licence under State mining legislation in 1921.
This tenure was not discovered until May 2014. The State then sought to withdraw their admission that exclusive possession native title had previously existed and the Claimants withdrew their compensation claim. The Claimants therefore sought the costs of the proceedings against the State caused by the withdrawn admissions.
It was claimed that the State had engaged in unreasonable conduct by withdrawing admissions very late in the proceedings, not provided any reasonable explanation for the late discovery of tenure documents or why the discovery was initiated at all, and which resulted in the Claimants being severely prejudiced.
Reasoning
The Court did not consider this was a case where a deliberate forensic strategy was adopted by a party to a native title proceeding which was properly held to be unreasonable within the terms of s 85A(2) and resulted in an indemnity costs order such as Watson v State of Western Australia (No 3) [2014] FCA 127, confirmed on appeal in Oil Basins Limited v Watson [2014] FCAFC 154.
His Honour concluded that the conduct of the State in not carrying out further tenure searches after filing their defence or soon after could properly be characterised as an unreasonable act or omission that should give rise, under s 85A(2) of the NTA (or more generally), to an award of costs. Nor was the late tenure work calculated to undermine the admissions the State had previously made. Finally, the Claimants had the option to adjourn and reconsider but pressed on with their claim.
The Court was not satisfied that a costs orders should be made in the circumstances and the Claimants' interlocutory application was dismissed.