Little v Wajarri Yamaji Aboriginal Corporation RNTBC

1. The first appellant must pay the first respondent's costs of and incidental to the proceeding, fixed in the sum of $5,278. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 These reasons determine the costs of this proceeding, which is an appeal from a Native Title Tribunal decision under s 169 of the Native Title Act 1993 (Cth) (NTA). In Little v Wajarri Yamaji Aboriginal Corporation RNTBC [2024] FCA 778 I dismissed the proceeding on a summary basis. I found that the appellants had failed to identify any error of law in the Tribunal's decision, so that the appeal had no prospects of success. 2 The first respondent, Wajarri Yamaji Aboriginal Corporation RNTBC, seeks its costs of the proceeding against the first appellant, Mr Little, fixed in the sum of $5,278. The second respondent, the State of Western Australia, seeks no order as to costs. Mr Little, who is unrepresented in this Court, did not oppose that costs order when given the opportunity to make submissions, but nor did he consent. It is appropriate to give these brief reasons, especially in light of s 85A of the NTA. 3 That section applies when determining costs in relation to s 169 appeals: Cheedy v Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [43]. (Cheedy did not determine whether s 85A applies directly or whether its 'spirit' applies, but for present purposes that distinction is not important.) The section reads 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. 4 While in a sense s 85A(1) just states the obvious, its function is to remove any ground for anticipating or expecting that costs will follow the event, so that the starting point is that each party is to bear their or its own costs: Ward v Western Australia [1999] FCA 580; (1999) 93 FCR 305 at [32], [35]; Yunupingu v Commonwealth (No 2) [2023] FCAFC 113; (2023) 298 FCR 272 at [5]. However the Court retains a wide discretion, extending beyond s 85A(2), to make orders that a party must pay costs incurred by other parties: Ward at [36]-[37]. 5 For reasons given in my previous decision, Mr Little's application was misconceived. He has put the respondents to costs in defending it which they should not have incurred, and it is just that they receive some recompense for that: see Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121] (Hodgson JA, Mason P and Beazley JA agreeing). It is therefore just that he should pay the first respondent's costs. While I reach that conclusion regardless of whether Mr Little's conduct is characterised as unreasonable, it is correct to say, at least, that the proceeding was instituted without reasonable cause: see, in a different context, Australian Workers' Union v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23; (2013) 232 FCR 428 at [7(3)] (Dowsett, McKerracher and Katzmann JJ). 6 I also agree that $5,278 is a reasonable sum at which to fix the costs. That is the short form amount allowed under item 15.1 of Schedule 3 of the Federal Court Rules 2011 (Cth) for a migration appeal that is dismissed before hearing. That is an appropriate analogy to the present matter. Orders as sought by the first respondent will therefore be made. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.