Bropho v State of Western Australia

REASONS FOR JUDGMENT 1 On 13 April 2007 reasons were published in Bropho v State of Western Australia [2007] FCA 519. The Court then ordered that the application be dismissed. It further ordered that costs be reserved. The latter order was made for the purpose of enabling the parties to make submissions in relation to costs. Those submissions have now been received and these reasons address the issue of costs in the proceedings. 2 The applicant submits that:

1. The Court in its judgment at Part D, identified 12 Claims and Issues; subdivided into 37 sub-issues. The Court dealt with the evidence and arguments and made findings in relation to each of those. In respect of the 5th of those issues, the Court identified three sub-issues and made a finding in favour of the applicants in respect of two out of three of those sub-issues, at [443].
2. The Court in Part E, identified 5 Specific Factual Issues. In relation to the first of those issues, the Court identified two sub-issues. In relation to one of those sub-issues, the Court found in favour of the applicants, at [221].
3. It is within the capacity of a taxing officer to apportion a costs order to take into account the issues upon which each party was successful.
4. In the applicant's submission an appropriate costs order would be to the effect that - (1) the respondents pay the applicant's costs in respect to the issues of - (a) whether the Reserves Act resulted in the applicants not enjoying the right of equal treatment before Tribunals administering justice; and (b) whether the Reserves Act was thereby inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) (the RDA) and Art 5(d)(i) of International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966, New York(the Convention); and (c) whether Robert Bropho was an inhabitant of the Reserve; (2) the applicants pay the respondents' costs in relation to the balance of the issues; (3) the costs be taxed. 3 The respondents submit:
5. The matters identified by the applicant (par 4(1)) are not issues on which a costs order should be made against the respondents, or issues on which the applicant should be relieved of paying the respondents' costs.