THE COURT:
1 These reasons for judgment deal with the issue of costs in relation to the hearing of the separate questions that were determined by the Full Court on 22 May 2023: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (the Full Court Reasons). These reasons should be read together with the Full Court Reasons. We adopt the definitions used in the Full Court Reasons.
2 Pursuant to the orders made on 22 May 2023, the applicant and the Rirratjingu parties filed submissions seeking an order that the Commonwealth pay their costs of, and in relation to, the hearing of the separate questions. The Full Court then made an order giving the Commonwealth leave to file responding submissions and providing that, subject to further order, the issue of costs be determined on the papers. The Commonwealth subsequently filed a submission, together with an affidavit of Gordon Kennedy dated 5 July 2023, which annexes a number of documents setting out the "outcomes" of case management conferences in the proceedings and some correspondence between the parties. The Commonwealth submits, in summary, that each party should bear their or its own costs of, and in relation to, the hearing of the separate questions.
3 While the Court's jurisdiction to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth), s 85A of the Native Title Act 1993 (Cth) 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.
4 It is common ground between the parties that s 85A applies to the present proceeding, including the hearing of the separate questions. Further, it is not suggested by the applicant or the Rirratjingu parties that the Commonwealth engaged in any unreasonable conduct as referred to in s 85A(2).
5 Section 85A has been considered in a number of cases. In Cheedy v Western Australia (No 2) [2011] FCAFC 163; 199 FCR 23, the Full Court stated at [9]:
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 v South Australia [2007] FCA 1479 at [54].
See generally Ward v Western Australia (No 2) (1999) 93 FCR 305 and De Rose v South Australia (No 3) [2005] FCAFC 137. Finn J referred to these principles in a compendious way in McKenzie v South Australia [2006] FCA 891 at [8]. See also Reid v South Australia at [53], [54].
6 The applicant and the Rirratjingu parties accept that the starting point is that each party is to bear their own costs. However, they submit that a number of factors support the making of an award of costs in their favour in relation to the hearing of the separate questions. The applicant relies on the following matters (in summary):
(a) The nature of the separate question hearing was significantly different from that of a typical native title determination or compensation application. It was in the nature of a demurrer raising complex constitutional issues of broader significance than just to the parties to the proceedings.
(b) By reason of the Commonwealth's decision to take a point about the precedential force of Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 and the applicability of s 51(xxxi) of the Constitution to laws made under s 122, the issues raised on the separate questions hearing extended beyond issues relating to native title, to include much broader principles of constitutional power and structure.
(c) The applicant was wholly successful on each of the separate questions and each of the underlying legal issues in dispute, including the broader constitutional issues that were raised.
(d) The separate question hearing involved considerable costs. Due to the breadth and complexity of the issues involved, there were lengthy written submissions filed by the parties and five days devoted to the hearing itself.
(e) Unlike many other native title claimants, the applicant has not received any litigation funding from a native title representative body (or other public funding).
7 The Rirratjingu parties rely on those submissions, subject to the following additions and qualifications:
(a) The Wurridjal argument is one that the Commonwealth could have raised and resolved in various types of proceeding; it just so happens that it raised the issue in a proceeding to which s 85A of the Native Title Act applies. Had the Commonwealth raised the issue in any other type of proceeding, the ordinary position would be that the successful parties would be awarded their costs.
(b) Relatedly, the Commonwealth expressly acknowledged that the Wurridjal argument was a "High Court question" (T16). The same could reasonably have been said about the inherent defeasibility argument. Despite that acknowledgment, the Commonwealth elected not to exercise its right to remove those issues into the High Court: see Judiciary Act 1903 (Cth), s 40(1). Had it done so, s 85A of the Native Title Act - being a provision directed only to the power of the Federal Court - would not have applied to the removed proceeding.
(c) Moreover, the election by the Commonwealth not to exercise its right of removal was made in circumstances where it also acknowledged that it was "likely that [there] will be an appeal" on the Wurrijdal argument (T16). Again, the same could reasonably have been said about the inherent defeasibility argument. In other words, the Commonwealth made its election in circumstances where it knew that a "likely" consequence of that decision was to expose the parties to paying legal fees in two proceedings (one in the Federal Court and one in the High Court).
(d) The Rirratjingu parties' costs are not considerable, including because efforts were made to avoid unnecessary overlap in arguments with other parties. Further, costs were limited by only junior counsel appearing at the hearing.
(e) On the topics on which the Rirratjingu parties made submissions, several were expressly accepted by the Court.
(f) The Rirratjingu parties did not receive any litigation funding or any other public funding (accepting that no such funding was sought).
8 For the reasons that follow, we consider that the appropriate order is that each party bear their or its own costs of, and in relation to, the hearing of the separate questions.
9 It is common ground that the starting point is that each party is to bear their or its own costs of the hearing of the separate questions. We do not consider there to be a proper basis to depart from that starting point. The applicant commenced a substantial claim for compensation under the Native Title Act. It has some novel and far-reaching aspects, some of which the Court referred to in the principal judgment on the separate questions. Given the nature of the claims, it was reasonable to expect that it would be fully tested, and that a process involving separate questions was likely to occur. Indeed, it appears from the document summarising the case management conference of 6 August 2020 that it was the applicant's representatives who proposed that a separate question be heard in the compensation proceeding (albeit narrower than the questions ultimately set down for hearing).
10 While it is true that the hearing of the separate questions involved constitutional issues that could have been raised in a non-Native Title Act case, the fact is that they were raised in a proceeding to which s 85A applies. While it is true that the hearing occupied five days and therefore, it may be inferred, considerable costs were incurred by the applicant, this must be viewed in the context of the costs of the proceeding as a whole, which are likely to be considerable. Further, the fact that the applicant and the Rirratjingu parties did not have public funding in relation to the separate questions does not, in our view, provide a principled basis to depart from the starting point. We also do not consider the other matters relied on by the applicant and the Rirratjingu parties to provide a proper basis to depart from the starting point.
11 Accordingly, we will make an order that each party bear their or its own costs of, and in relation to, the hearing of the separate questions.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Mortimer and Justices Moshinsky and Banks-Smith.