Bropho v City of Perth

1. The applicant pay the costs of the first respondent of the originating application, including the costs of first respondent's interlocutory application dated 24 June 2016 and any reserved costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 On 8 September 2016 I delivered judgment dismissing the originating application filed by the applicant, Ms Bropho (Bropho v City of Perth [2016] FCA 1098 (Bropho No 1)). Although the City, as there defined, had already made submissions in relation to costs, there had been no response from Ms Bropho, so I ordered that the parties file submissions on costs. 2 These reasons deal with costs. 3 As Ms Bropho submits, the Court has a wide discretion in awarding costs, a discretion which should be exercised judicially. As Ms Bropho acknowledges, the ordinary rule is that costs follow the event and the successful party should receive its costs unless special circumstances justify some other order: Ruddock v Vadarlis (2001) 115 FCR 229 (at [11]). 4 A wide discretion is reflected in s 43(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and Ms Bropho, in particular, refers to s 85A of the Native Title Act 1993 (Cth) (NTA) which provides as follows: 85A Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first mentioned party to pay some or all of those costs. 5 Ms Bropho makes the following submissions in support of a claim that there should be no order as to costs despite the outcome of the proceedings: (a) The Full Court in Lardil Peoples v Queensland (2001) 108 FCR 453 considered the meaning of a 'proceeding' for the purposes of s 85A NTA and found that an action pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) was not a proceeding to which s 85A NTA applied. (Although I noted that the Full Court's 'consideration' of this matter was a tangential reference to another case in passing); (b) In Murray v Registrar, National Native Tribunal (2003) 132 FCR 402 the Full Court held (at [27]-[28]) that, although the proceedings were not centrally concerned with provisions of the NTA, it was appropriate not to award costs (at first instance) as the proceedings dealt with the meaning of important provisions of the NTA, and was a case where it was appropriate to 'follow the spirit of subsection 85A(1) of the Act'; and (c) It is open to the Court, in relation to the exercise of the discretion conferred by s 43 FCA, to take the 'spirit' of s 85A NTA into account. In exercising that discretion, it is appropriate to take into account all relevant matters including the nature of the proceedings, whether important or novel questions are being responsibly pursued and the desirability of resolution of those questions without costs being imposed adversely as a penalty: see Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176 (at [13]-[19]); Northern Territory v Doepel (No 2) [2004] FCA 46 (at [9]-[11] and [15]-[17]); Cheedy v Western Australia (No 2) [2010] FCA 1154 (at [8]). 6 As to Ms Bropho's application, she submits: (a) The proceedings were not pursuant to the AD(JR) Act; (b) The NTA was central to the application, which sought a declaration pursuant to s 211 NTA; (c) The non-extinguishment argument raised, being the validity of the relevant vesting, was novel and potentially important in that numerous portions of land in Western Australia were vested in similar terms; and (d) If successful, Ms Bropho would not have received any personal gain. A successful result would have allowed Ms Bropho to peacefully undertake her role as a female Nyungah elder on Matagarup (Heirisson Island). That role was essentially one of overseeing the smooth running of day to day issues amongst mainly homeless indigenous and non-indigenous people and a drug and alcohol free environment (Bropho No 1 (at [7]-[9])). 7 Taken as a whole, Ms Bropho says, these factors, including the desirability of resolution of these questions without costs being imposed adversely as a penalty, are such that the 'spirit' of s 85A NTA may be taken into account by the Court in the exercise of its discretion. The application satisfies the criteria set out in Lardil Peoples and Murray such as to allow the Court to exercise its discretion in the award of costs on the basis that costs should not be imposed adversely as a penalty. The appropriate disposition of the question of costs in the exercise of the discretion pursuant to s 43 FCA and taking into account the 'spirit' of s 85A NTA, is that there be no order as to costs.