Barker J
In this matter, the Court granted the South West Aboriginal Land and Sea Council (SWALSC) orders for costs against the applicant, Mr Corunna. The case follows Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491 (see related content) in which Barker J summarily dismissed Mr Coruna’s application that he be entitled to separately authorise an ILUA which overlapped with the Noongar claim over Perth and the South West region (the South West Settlement) on the grounds that he had no reasonable prospects of success.
SWALSC and the State of Western Australia (the State) were respondents in both matters. The State made no application for costs.
Questions before the Court
Barker J identified two key issues arising from SWALSC's costs application:
whether s 85A of the Native Title Act 1993 (Cth) (NTA) applied to the proceeding to affect the exercise of the Court’s usual discretion as to costs and, if so, whether Mr Corunna would be ordered to pay costs under s43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act); and
if s 85A does not apply, whether SWALSC was entitled to the costs order it was seeking.
Question 1
Section 43(2) FCA is the Court's statutory power to award costs ‘except as provided by any other act’. Section 85A NTA provides for each party to a native title proceeding to bear his or her own costs and therefore modifies the exercise of the court's costs discretion.
The issue then turned on whether the proceeding commenced by Mr Corunna was a type of “proceeding” to which s 85A referred. His Honour noted at [10] that, … a “proceeding” for the purposes of s 85A will be one which can be characterised as a proceeding in relation to applications filed in the Federal Court that relate to native title.
Barker J considered the expressions ‘in relation to’ and ‘that relate to’ in the NTA, the Federal Court's exclusive native title jurisdiction and the approaches to the application of s 85A taken in The Lardil Peoples v State of Queensland [2001] FCA 414 (Lardil), and Cheedy v Western Australia (No 2) [2011] FCAFC 163.
Barker J concluded, at [48], that under the prevailing authority of Lardil, a ‘proceeding’ for the purposes of s 85A NTA is confined to matters arising within the Court’s exclusive jurisdiction conferred by s 81 NTA.
Mr Corunna argued that, as a member of an unregistered native title claim group, he was entitled under the NTA to separately authorise the relevant ILUA. Barker J found that the application did not fall within the Court’s exclusive jurisdiction and therefore s 85A NTA did not apply.
Question 2
His Honour then turned to the question of whether SWALSC was entitled to a costs order against Mr Corunna under s 43 of the FCA.
Barker J discussed Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 and Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 and emphasised that the Court should have regard to all the relevant circumstances when using its discretion to award costs. In rejecting the argument that Mr Corunna’s proceeding was one in which ‘a “public interest” element should guide the exercise of costs discretion’, His Honour took into consideration:
Mr Corunna did not bring the proceeding as a representative action but in his own name and
the contest between who represents the relevant indigenous 'public interest' in this case.
Additionally, His Honour set out at [65] that by bringing speculative proceedings at an advanced stage of the ILUA registration process, in advance of the statutory objection process, Mr Corunna was bound to case the State and SWALSC to mount a substantial response. Furthermore, Barker J found at [66] that Mr Corunna’s application had not helped to clarify the law. In these circumstances, Barker J ordered Mr Corunna to pay SWALSC’s costs.