Doyle on behalf of the Iman People #2 v State of Queensland

1. The application by the First Respondent for an order for costs is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 22 December 2016, the Court dismissed the appeal in this matter: Doyle on behalf of the Iman People #2 v State of Queensland [2016] FCAFC 189. The respondent (the State) now applies for a costs order in relation to the appeal. 2 In accordance with the directions of the Court, the parties provided written submissions and the application has been determined on the papers. 3 There was a single issue in the appeal, namely, whether s 8 in the Native Title (Queensland) Act 1993 (Qld) (NTQA) was invalid insofar as it purported to validate, with retrospective effect, the past extinguishment of native title over certain parcels of land in Queensland. The appellants contended that certain grants and conversions of land in Queensland had, to the extent to which they extinguished native title, been invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth) and that the principle emerging from University of Wollongong v Metwally (1984) 158 CLR 447 meant that it had not been open to the Queensland Parliament, by the enactment of s 8, to validate with retrospective effect that which it previously been invalid by reason of s 109 of the Constitution. 4 In rejecting that contention, the Court held that Metwally had the effect that it is not open to the Commonwealth or State Parliaments to avoid retrospectively the operation which s 109 of the Constitution had on an inconsistent State law but did not preclude either Parliament from enacting a law attaching legal significance to events in the past which had been invalid or ineffective at the time they occurred. The Court held that s 8 of the NTQA is valid and operative to attach new legal significance to the acts in the past which had been ineffective to extinguish native title. 5 Section 85A of the Native Title Act 1993 (Cth) (the NT Act) modifies the exercise by the Court of the discretion which would otherwise arise under s 43 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). It provides: 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. 6 In Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [9], the Full Court (North, Mansfield and Gilmour JJ) summarised the effect of the authorities concerning s 85A as follows: (a) section 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the FCA Act; (b) the "unreasonable conduct" of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and s 85A(2) does not control or limit the discretion in s 85A(1); (c) whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; (d) it is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants. 7 The Full Court in Cheedy went on to hold that s 85A applies equally, and directly, to appeals, applications for leave to appeal, and to decisions at first instance. The State accepted that s 85A applies in the present case. 8 It contended, nevertheless, that an order for costs should be made in its favour because: (a) the appellants' argument had been plainly untenable; (b) by instituting and carrying on the appeal, the appellants had acted unreasonably and had caused the State to incur expense. 9 There were aspects of the appellants' conduct of the appeal which are troubling in the present context. We instance the appellants' submission that passages in the joint judgment in The State of Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Act Case) were, if dicta, not "seriously considered dicta" with the implication that they could accordingly be disregarded. That submission was untenable. However, as we noted in the principal judgment, at [45], the appellants did not seek to elaborate any argument in support of the submission and it occupied little time at the hearing of the appeal. 10 We are conscious of the need to avoid the wisdom of hindsight when considering whether arguments on appeal which were unsuccessful should be regarded as untenable. The difficulties in an argument are often clearer in retrospect. In our view, that is this case. A number of authorities, including the Native Title Act Case, indicated that the appellants' argument on the appeal was unlikely to be successful but we are not willing to conclude that it was so untenable that it was unreasonable for the appellants to have pursued it. In assessing the reasonableness of the appellants' conduct, we also take into account the consequences for them of the finding of the primary Judge that native title in the land in question had been extinguished. 11 The State submitted that a passage in Gomeroi People v Attorney-General of New South Wales (No 2) [2016] FCAFC 116 indicated that on an appeal the ordinary rule that costs should follow the event should apply. It is not clear to us that Gomeroi at [11] does stand for that proposition but, even if it does, we see no reason to apply such a principle in the present case. 12 The State did not point to any other circumstances warranting the costs order it seeks. In our opinion, it is appropriate that there be no order as to costs. 13 The application by the State for an order for costs is refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and White.