FEDERAL COURT OF AUSTRALIA

Foster v Que Noy (No 2) [2008] FCAFC 137

PROCEDURE – COSTS – appeal against applications to replace an authorised applicant for a native title determination under s 66B of the Native Title Act 1993 (Cth) – whether within exclusive jurisdiction for the purposes of s 81 and whether s 85A applies

Native Title Act 1993 (Cth) ss 61, 66B, 81, 85A

Foster v Que Noy [2008] FCAFC 56 cited

The Lardil Peoples v State of Queensland (2001) 108 FCR 453 applied

De Rose v State of South Australia (No 3) [2005] FCAFC 137 applied

Davidson v Fesl (No 2) [2005] FCAFC 274 applied

Gumana v Northern Territory of Australia (No 2) [2007] FCAFC 168 applied

Ward v Western Australia (1999) 93 FCR 305 cited

MARJORIE FOSTER v ARTHUR QUE NOY, GABRIEL HAZELBANE, PADDY HUDDLESTON & MARGARET FOSTER

NTD 1 of 2008

MARJORIE FOSTER v KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTON, ARTHUR QUE NOY & MARGARET FOSTER

NTD 2 of 2008

FINN, NORTH AND REEVES JJ

24 JULY 2008

DARWIN

THE COURT ORDERS THAT:

1.                  There be no order as to the costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1.                  There be no order as to the costs of the appeal. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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. 

4                     It is clear, and has for some time now been accepted by Full Courts of this Court, that an application for leave to appeal and/or an appeal from a proceeding within s 81 of the Act attracts the provisions of s 85A no less so than the proceeding at first instance from which leave to appeal is sought, or the appeal is brought:  see De Rose v State of South Australia (No 3) [2005] FCAFC 137 (‘De Rose (No 3)’), Davidson v Fesl (No 2) [2005] FCAFC 274 and Gumana v Northern Territory of Australia (No 2) [2007] FCAFC 168.

5                     In the present appeals the successful respondents seek an order for costs; the appellant’s position is that there should be no such order.  Put shortly, the respondents appear to contend that s 85A does not apply to these appeals.  If that is their position, it clearly is misconceived:  see the above decisions with which we agree. 

6                     The proper approach to be taken in applying s 85A of the Act is now well accepted and need not be repeated here.  It was conveniently outlined by Lee J in Ward v Western Australia (1999) 93 FCR 305 and endorsed by the Full Court in De Rose (No 3) at [8]-[10].  The starting point is that each party to a proceeding will be left to bear his or her own costs unless the Court considers it appropriate in the circumstances to make a costs order.  While we were of the view that there were “obvious difficulties” with aspects of the appellant’s case:  Foster at [18];  we do not see any feature or features in either appeal which would warrant a departure from the starting point to which we have referred.  The respondents have not really sought to establish the contrary.  They have simply noted our above comment and have indicated that they were wholly successful at first instance and on the appeals.  We do not consider that these circumstances warrant the making of a costs order in favour of the respondents in either appeal.  We will make orders accordingly. 

Associate:

Dated:         24 July 2008