introduction
1 Following delivery of judgment in Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (Cheedy No 1), I invited the parties to make submissions on costs. The appeal, brought under s 169 of the Native Title Act 1993 (Cth) (NTA) in Cheedy No 1 was dismissed.
2 In making their submissions, the first respondent (the State) raised the question as to whether there may be a difference in approach on the question of costs in two decisions of the Full Court. Specifically, the State points to Lardil Peoples v Queensland (2001) 108 FCR 453, on the one hand and FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141 (Cox) on the other. The second respondent (FMG) submits, also in detailed submissions, that Cox,insofar as it related to costs was in error, not necessarily as to the costs order there made but as to the basis for it.
3 I am not convinced that there is inconsistency between the decisions nor that Cox was in error. None of the parties has referred to the Full Court decision of Murray v Registrar, National Native Title Tribunal (2003) 132 FCR 402. In Murray, the appellant appealed from a decision to uphold the decision of the Registrar of the National Native Title Tribunal to register an indigenous land use agreement. The appeal was dismissed and Murrayunsuccessfully appealed to the Full Court.
4 On the question of costs the Full Court said (at [26]-[28]):
26 The appellant contended that, in the event that the appeal was unsuccessful, no order should be made requiring her to pay the costs of the respondents or any of them. The second and third respondents sought a costs order in their favour in the event that the appeal failed.
27 In considering an application made at first instance by the second respondent for a costs order in its favour, Marshall J observed in Murray at [7]-[9]:
"It is not in dispute that an order for the payment of costs is discretionary and that the discretion must be exercised judicially. It is also not in contest that the ordinary rule is that costs should follow the event and that a successful party should receive its costs unless special circumstances justify some other order; see, for example, Ruddock and Others v Vadarlis (No 2) (2001) 115 FCR 229 at [11], per Black CJ and French J.
The proceeding was not one under the Native Title Act 1993 (Cth) but it did involve a consideration of the meaning of important provisions in that legislation concerning the entering into and the registration of ILUAs. The judgment of 20 December 2002 dealt with issues relevant to the scope and meaning of s 24CD of the Native Title Act, amongst other matters. It was the first one of its kind to do so. If the application had have been one commenced under the Native Title Act, the Court would have been required to consider the provisions of s 85A of that Act. Section 85A provides that:
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.
Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate "to follow the spirit of subs [85A(1)] of the Act"; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16], per O'Loughlin J."
28 In our respectful view, the approach adopted by his Honour, as reflected by the above paragraphs, was entirely appropriate in the circumstances of a first instance proceeding. …
5 The Full Court went on to say, however, that because the appellant chose to pursue an appeal which was without merit, the departure from the ordinary rule that costs should follow the event were of greatly diminished significance.
6 The approach taken in Murrayhas been followed on a number of occasions.
7 In Fesl v Delegate of the Native Title Registrar (No 2) (2008) 173 FCR 176, Logan J under an Administrative Decisions (Judicial Review) Act 1977 (Cth) application for review of a decision of a delegate of the Native Title Registrar to register an Indigenous Land Use Agreement (ILUA), Logan J made no order for costs, taking into account the 'spirit' of s 85A and after a detailed analysis of the relevant considerations (at [13]-[19]) his Honour said:
13 The applicants drew my attention to an unreported decision of Marshall J in Murray v Registrar, National Native Title Tribunal [2003] FCA 45 and to the appellate sequel to that decision, Murray v Registrar, National Native Title Tribunal (2003) 132 FCR 402. Murray's case had a similar background to the present in the sense that it was an unsuccessful application pursuant to the AD(JR) Act for the Court to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an ILUA. At first instance (at [9] and [10]), Marshall J stated:
"9 Although not formally a matter arising under the Native Title Act, the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate "to follow the spirit of subs [85A(1)] of the Act"; see Ngalakan People v Northern Territory [2003] FCA 23 at [16], per O'Loughlin J.
10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray. "
14 In the result, His Honour made no order as to costs, save in respect of what he regarded as the costs of an unreasonable opposition by the applicant to the joinder of an appropriate contradictor party. On appeal, the Full Court (Spender, Branson and North JJ) observed (at [28]) of the passage just quoted, "In our respectful view, the approach adopted by his Honour, as reflected by the above paragraphs, was entirely appropriate in the circumstances of a first instance proceeding". Their Honours took a different view as to the way in which the costs discretion ought to be exercised on the appeal, awarding costs against the unsuccessful appellant.
15 In Northern Territory v Doepel (No 2) [2004] FCA 46, having referred to Murray's case both at first instance and on appeal, Mansfield J observed (at [17]):
"[17] It would clearly be remiss to adopt a rule, that where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the "spirit" of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Act, and involved consideration of the particular sections directing how that function was to be conducted. I have therefore included some consideration in the exercise of my discretion."
I respectfully agree with His Honour's observation.
16 In the circumstances of that case, Mansfield J considered that costs should nonetheless follow the event.
17 QWI drew my attention to another decision of the Full Court, Lardil Peoples v Queensland (2001) 108 FCR 453. Materially in that case, Dowsett J, with whom in this regard French J (as the Chief Justice then was) agreed, had occasion to consider the meaning of the word "proceeding" for the purposes of the s 85A of the Native Title Act. His Honour reached the following provisional conclusion (at [157]):
"If this construction is correct then with one possible exception, it follows that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by s 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See s 213(1). However that exception has no application for present purposes because the appellants have not sought to establish native title."
18 The way the issue arose in that case moved the Court to invite the parties to make submissions in respect of that particular provisional conclusion. Submissions were made but did not result in any change to that conclusion: see Lardil Peoples v Queensland [2001] FCA 464.
19 It is not apparent that the Full Court's judgment in the Lardil Peoples' case was drawn to the attention of either Marshall J or the Full Court in Murray's case. That does not mean, in my opinion, that the two Full Court decisions are irreconcilable. A proceeding under the AD(JR) Act is not a "proceeding" for the purposes of s 85A of the Native Title Act. In Brownley v Western Australia (No 2) (1999) 95 FCR 172, Lee J had reached just such a conclusion (at para 21). More recently, in O'Mara v Minister for Lands (2008) 167 FCR 145, Reeves J reached a like conclusion. That does not mean that it is impermissible, in relation to the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act, to take into account the "spirit" of s 85A. That is what I propose to do and it seems to me that, sitting in the original jurisdiction, I am in any event bound by Murray's case so to do. Taking that consideration into account is influential but certainly not determinative in this particular case.
8 Shortly put, while the rule in s 85A NTA does not on the strength of Lardil have direct application, nevertheless, it may be relevant to the exercise of the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA). It is appropriate in the exercise of s 43 FCA discretion, as it was in Cox, to take into account all relevant matters including the nature of the proceeding, the question of whether important and novel questions are being responsibly pursued and the desirability of resolution of those questions without costs being imposed adversely as a penalty (see Latoudis v Casey (1990) 170 CLR 534 (at 566-567). These concepts are also discussed by Finn J in Reid v South Australia [2007] FCA1479 (at [54]).
9 In my view, the application pursued by the 'appellant' satisfied all such criteria as identified in Murray at first instance and as expressly upheld by the Full Court on appeal.
10 For those reasons, in my view, the appropriate disposition in exercise of the discretion under s 43 FCA, taking into account 'the spirit' of s 85A NTA, is that there be no order as to costs.
11 The appellant raised further arguments which are now unnecessary to consider. Therefore, the order will be:
1. There be no order as to costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.