State of Western Australia v Banjima People

1. Each party pay its own costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The remaining issue in this matter is costs. The Banjima People seek an order that the State pay their costs of the State's appeal which was dismissed (see Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456). The State resists that order. 2 Section 85A of the Native Title Act 1993 (Cth) applies. This section provides that: (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. (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. 3 Consistent with this provision, we ordered the State to pay the costs of the Banjima People of an interlocutory application filed by the State after judgment on the appeal had been published, which we considered involved the Banjima People in unreasonable expenditure (see Banjima People v State of Western Australia (No 2) [2015] FCAFC 171). This application relates only to the substantive appeal. 4 The relevant principles, accepted by the Banjima People and the State, are explained in Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 at [9] as follows: It is now well established that in proceedings to which s 85A applies: (1) s 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; (2) the "unreasonable conduct" of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1); (3) 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; and (4) 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: Reid at [54]. 5 The Banjima People contend that five factors support the exercise of the discretion to make a costs order in their favour. 6 First, the State was wholly unsuccessful on the appeal. 7 Second, the proceeding was an appeal against a native title determination. 8 Third, grounds one, two and three of the State's appeal involved issues of law and fact requiring consideration of a substantial portion of the large body of evidence before the primary judge. 9 Fourth, ground three, which involved factual issues, was unmeritorious (as described at [56], [57] and [77] of [2015] FCAFC 84). 10 Fifth, ground one also lacked merit (as described at [17], [18], [27], [46] and [52] - [53] of [2015] FCAFC 84). 11 In submissions in reply, the Banjima People also noted that the State abandoned ground two at the hearing and withdrew ground five after the Banjima People had already filed submissions in respect of those grounds. 12 We are not satisfied that there is sufficient reason to make any order for costs against the State. 13 While we accept that each of the factors identified is relevant to the exercise of the costs discretion, there is another relevant factor which the submissions for the Banjima People overlook. It is that the State and the Banjima People both challenged the native title determination, the State in WAD 73 of 2014 and the Banjima People in WAD 72 of 2014. The appeals were heard and determined together. Both parties made submissions that the appellate court was in as good a position as the primary judge - a submission we consistently rejected. Both parties raised grounds in their respective notices of appeal which were abandoned at various times. While the State was wholly unsuccessful, the Banjima People succeeded on one ground (ground three) but not the other (ground one). 14 While the State does not seek costs against the Banjima People in WAD 72 of 2014, the fact that there were two appeals, heard and determined together, in which both parties challenged the same native title determination, is relevant to the discretion as to costs. This factor weighs against the making of any costs order despite the success of the Banjima People on one of the grounds of appeal. 15 Once the context of the appeal is recognised, as one in which the State and the Banjima People both challenged the native title determination on multiple grounds, some of which were not pressed and others of which involved an unrealistic view on the part of both parties about the lack of advantage of the primary judge, it is apparent that the submissions for the Banjima People do no more than rely on the fact of the State's lack of success. Accordingly, there is no principled basis identified by the Banjima People which weighs in favour of displacement of the usual position set out in s 85A(1) and justifying the making of a costs order to be made in WAD 73 of 2014. 16 Without such a principled basis being identified, any exercise of discretion in favour of the Banjima People on costs would be inconsistent with the obligation that the discretion be exercised judicially. As explained in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22], this means that the discretion must not be exercised "arbitrarily, capriciously or so as to frustrate the legislative intent". The existence of a principled basis to support the exercise of discretion is necessary. Otherwise undesirable inconsistency will result. As noted in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 541: …a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity. 17 For these reasons, we consider that each party should pay its own costs of proceeding WAD 73 of 2014. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Kenny, Rares, Jagot and Mortimer.