Foster v Que Noy

REASONS FOR JUDGMENT 1 In Foster v Que Noy [2008] FCAFC 56 ('Foster') this Court dismissed two separate appeals having granted the common applicant, Ms Foster, leave to appeal in both. In each appeal Ms Foster challenged the correctness of a primary judge's decision that she be removed from the position of member of the "applicant" in two native title determination applications made under s 61 of the Native Title Act 1993 (Cth) ('the Act'). The removal in each instance was made by the primary judge on application to the Court under s 66B of the Act. 2 Section 81 of the Act gives this court jurisdiction to hear and determine applications filed in it that relate to native title and the jurisdiction so given is exclusive of the jurisdiction of all other courts except the High Court. It is, in our view, clear that an application to replace an applicant for a claimant application under s 66B is, in the scheme of Pt 3 Div 1 of the Act, one which directly affects the authority of the applicant to deal with a native title determination application referred to in s 61. Accordingly, any application brought under s 66B is within the exclusive jurisdiction of the Court for s 81 purposes: see The Lardil Peoples v State of Queensland (2001) 108 FCR 453 esp at [156] and [68]. As such it is an application to which s 85A of the Actapplies: see The Lardil Peoples above. 3 Section 85A provides: 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.