THE COURT:
1 In McGlade v Native Title Registrar (2017) 340 ALR 419; [2017] FCAFC 10, the Court, in substance, granted the relief sought by the applicant or applicants in each of these proceedings. The question that now falls for determination is whether the applicants should have the benefit of an order for costs. They submit that the State of Western Australia, the second respondent, and the South West Aboriginal Land and Sea Council (SWALSC), the third respondent, in each proceeding should be jointly responsible for their respective costs, including the costs reserved by the High Court.
2 They say they were wholly successful on their claims and the usual rule, that costs follow the event, should apply here. They submit there is no disentitling conduct that would tell against the application of the usual rule.
3 They also refer to s 85A of the Native Title Act 1993 (Cth) (NTA) which alters the usual rule concerning costs and provides that, unless the Court otherwise orders, each party to a proceeding must bear their own costs, which they say has no application here. They observe that the provision applies to "proceedings in relation to applications filed in the Federal Court that relate to native title" (s 80) and that this is not such a proceeding.
4 In this case, the applicants note the proceedings are applications made in the High Court under s 75(v) of the Constitution, and s 39B(1) of the Judiciary Act 1903 (Cth) for writs of prohibition, as well as for declaratory relief. Thus, they submit, s 85A has no application.
5 The applicants further contend that even if s 85A were to be found to apply, costs should follow the event in this case as it is well established that, while s 85A removes the expectation that costs will follow the event, the Court retains a discretion to award costs under s 43 of the Federal Court Act 1976 (Cth).
6 It is submitted that not only is the applicants' success a relevant factor in the exercise of the costs discretion, but that the history of the proceeding is also relevant. In that regard, they say the applicants filed in the original jurisdiction of the High Court and the respondents then sought a remittal to the Federal Court, which was contested by the applicants, and that one of the grounds relied upon by Nettle J in remitting the matter was the submission by SWALSC that there may be some difficulty in agreeing the necessary facts for a special case. As it transpired, the parties did agree a special case. The applicants say that had the proceedings continued in the High Court, they would have been entitled to costs in the ordinary course.
7 The State does not make any submissions as to whether or not costs should be awarded and says it will, in that regard, abide the order of the Court.
8 It says, nonetheless, that in the event any order as to costs is made, there would be no basis to draw any distinction between the active respondents to the proceedings (namely, the State and SWALSC) and any order as to costs should be proportioned equally between them.
9 It also notes that the four proceedings were heard together and all of the applicants were jointly represented, and so if there is an order for costs, it should be an order that the applicants are jointly, not each severally, entitled to their costs.
10 SWALSC submits that there should be no order for costs in the proceedings, for three reasons:
(1) the applicants ignore the spirit of s 85A;
(2) the applicants proceed from a mistake about SWALSC's submissions in the High Court. SWALSC says that, as the transcript reveals, the applicants have confused a submission made by the State with one made by SWALSC; and
(3) in any event, the applicants' submission begs the question whether they would have been entitled to costs in the High Court. Even if the proceedings had remained there and even if they had succeeded, SWALSC would have argued against the usual order for costs for the reasons set out in (1).
11 In that regard, SWALSC says that the fact that there was a significant body of Noongar persons who supported its stance, as evidenced by the resolutions regarding the Indigenous Land Use Agreements (ILUAs) in question, supports the finding that there should be no order as to costs in this case.
12 SWALSC draws attention to:
the public importance of the interpretation of the ILUA provisions;
the fact that the only direct Federal Court authority on the question dealt with in the proceedings favoured the respondents; and
the fact that the agreements were supported by many members of the Noongar community.
13 While accepting that these proceedings undoubtedly raised matters of considerable public importance in the interpretation of the ILUA provisions of the NTA, and that the only authority bearing on the question was a single instance decision that favoured the position of the respondents, and that, on the face of it, many members of the Noongar community supported the position taken by the respondents and SWALSC in particular, the fact is that these proceedings are not directly covered by s 85A of the NTA, as the applicants submit. See Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53; [2015] FCA 630.
14 In the particular circumstances of this case, we see no reason why the usual rule should not apply, so that the successful applicants should not have the benefit of a costs order, including the proceedings in the High Court.
15 The applicants, whether or not they may be considered to be a relatively small group of Noongar people who are aggrieved by the making of the ILUAs, nonetheless took steps to obtain legal advice, commence proceedings in the High Court relying on the terms of s 75(v) of the Constitution and s 39B of the Judiciary Act, and but for their determination in bringing and maintaining the proceedings, would not have been able to vindicate the rights and interests they asserted.
16 In all of the circumstances of this case, there is no sufficient reason to deny the applicants their costs in the proceedings.
17 We would, nonetheless, agree with the substance of the submission made on behalf of the State. In these circumstances, the applicant or applicants in each of the four separate proceedings should not have the benefit of individual costs orders, but acknowledging that costs of preparation may be different in each proceeding, having regard to the differing factual backgrounds, some allowance needs to be made for some separate costs in each proceeding, although modified to reflect the four proceedings were heard together. There should be one costs order covering all four proceedings, broken up as needs be to reflect any distinct costs incurred in preparation.
18 In these circumstances, we would invite the applicants, following conferral with the State and SWALSC, to file a minute of proposed orders that reflects these reasons.
19 In those circumstances, we would make the following order:
(1) The applicants in these four proceedings file a minute of proposed costs orders that reflect these reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and Mortimer.