FEDERAL COURT OF AUSTRALIA

Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163

FEDERAL COURT OF AUSTRALIA

Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163

CORRIGENDUM

1.    In paragraph 17 of the Reasons for Judgment, in the third sentence, replace “s 133” with “s 233”.

Associate:

Dated:    1 March 2012

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appellant pay one-half of the second respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The Court

1    On 12 August 2011 the Court gave judgment in these two appeals: Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2011] FCAFC 100 (the Full Court decision). It dismissed the appeals from the decision and orders of McKerracher J given on 26 October 2010: Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (the first instance decision). The first instance decision, and the Full Court decision, upheld the decisions of the National Native Title Tribunal (the Tribunal) under s 38(1) of the Native Title Act 1993 (Cth) (the NT Act) that the State of Western Australia may grant two mining leases (the mining leases) to the second respondent FMG Pilbara Pty Ltd (FMG). There were two appeals because the issues concerned separate proposed mining leases in respect of different areas of land over which the appellants had made a claim for the determination of native title under s 61 of the NT Act.

2    The context of the first instance decision and appeal, and the background to it, are set out in the Full Court decision at [7 ff]. Put simply, the appellants on behalf of the Yindjibarndi People were the claimants in an application for the determination of native title under s 61 of the NT Act. The claim was duly registered. It has not yet been determined. By reason of the registration of the claim, the appellants were entitled to receive, and did receive, notice of the proposed grants of the mining leases over parts of the claim area. Because the proposed mining leases were future acts under the NT Act, the appellants and the State of Western Australia and FMG negotiated to see if they could reach agreement about the terms on which the proposed mining leases should be granted, or how those rights might be exercised, having regard to the rights claimed in the determination application. The negotiation was unsuccessful. Under s 38 of the NT Act, on the application of FMG, those issues were therefore referred to the Tribunal for arbitration.

3    As the reasons of the Full Court at [161]-[179] indicate, although the Tribunal in arbitration determined that the proposed mining leases should be granted, the Tribunal preserved a process by which the appellants’ ongoing concerns about the effect of the grants of the mining leases upon the claimed native title rights and interests might be protected in the future.

4    The Full Court reserved the question of costs of the appeals. It gave the parties leave to make submissions on costs. The State of Western Australia has made no application for costs of the appeals. However, FMG has applied for costs of the appeals on an indemnity basis, and alternatively on a party and party basis. The appellant submits that there should be no order as to costs in the circumstances.

The Issue of Principle

5    The submissions exposed one point of principle. It is whether, in respect of the appeals, s 85A of the NT Act applies directly or otherwise to regulate the exercise of the Full Court’s discretion on the question of costs.

6    It is common ground that the Court has a general discretion under s 43 of the Federal Court of Australia Act 1975 (Cth) (the FCA Act) to make such order as to costs as it considers appropriate: see eg Ruddock v Vardarlis (No 2) (2001) 115 FCR 239 at [9]-[11] (Ruddock).

7    The general discretion to award costs is absolute and unfettered, although it must be exercised judicially. As explained in Ruddock, the usual principle is that costs would ordinarily follow the event in the absence of special circumstances justifying some other order.

8    Section 85A of the NT Act provides:

(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.

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 at [54].

See generally Ward v Western Australia (No 2) (1999) 93 FCR 305 and De Rose v State of South Australia (No 3) [2005] FCAFC 137; Finn J referred to these principles in a compendious way in McKenzie v State of South Australia [2006] FCA 891 at [8]. See also Reid v State of South Australia [2007] FCA 1479 at [53] and [54].

10    Section 85A appears in Div 1A of Pt 4 of the NT Act, dealing with determinations of the Federal Court. It is plain that s 85A applies to applications made under Div 1 Pt 3 of the NT Act, including in particular s 61 for the determination of native title or for compensation: see eg Lardil Peoples v State of Queensland (2001) 108 FCR 453 (Lardil Peoples).

11    Although the right of appeal from a decision made by the Federal Court under s 61 of the NT Act is sourced from s 24 of the FCA Act, s 85A applies equally, and directly, to appeals, and applications for leave to appeal, of such first instance decisions: see De Rose v State of South Australia (No 3) [2005] FCAFC 137; Davidson v Fesl (No 2) [2005] FCAFC 274; Gumana v Northern Territory of Australia (No 2) [2007] FCAFC 168 and Foster v Que Noy (No 2) [2008] FCAFC 137.

12    In proceedings which are not “proceedings” under the NT Act but nevertheless concern matters arising under the NT Act and its interpretation, s 85A is relevant to the way in which the Court exercises its costs discretion but does not directly apply: Murray v Registrar of National Native Title Tribunal (2003) 132 FCR 402 (Murray).

13    Murray concerned an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to judicially review a decision of the Native Title Registrar to register an Indigenous Land Use Agreement (ILUA). At first instance, it was held that s 85A did not apply directly to the exercise of the costs discretion, because the proceeding was not one which formally arose under the NT Act. However, because the application involved a consideration of the meaning of important provisions of the NT Act concerning the entering into and registration of ILUAs, the Court said it should take into account the legislative intention of the NT Act in relation to matters which raise for consideration its correct interpretation, and where it is appropriate the Court should “follow the spirit” of s 85A(1). Although the application at first instance failed, s 85A was relevant in departing from the ordinary rule that costs follow the event and that there should be no order as to costs. On appeal, where the significance of s 85A became less important as the appeal was without merit, an order for costs was made (at [28]): See also The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] per O’Loughlin J.

14    Similarly, in Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 the Court considered an application under the ADJR Act to review a decision of the Native Title Registrar made under s 190A of the NT Act to place an application for a determination of native title on the Register of Native Title Claims. The case did not involve a “proceeding” to which s 85A directly applied. Having regard to the significance of the issues, and the reasonableness of the conduct, it was ordered that the ordinary rule as to costs apply, and the applicant pay the costs of the application. It was apparent that s 85A was relevant to the costs discretion (at [17]):

It would clearly be remiss to adopt a rule that, where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the ‘spirit’ of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Act, and involved consideration of the particular sections directing how that function was to be conducted. I have therefore included such consideration in the exercise of my discretion.

15    Brownley v State of Western Australia [1999] FCA 1431 concerned an application under the ADJR Act to review a decision of the Tribunal under the then s 38 of the NT Act (that is, prior to the repeal and substitution of the current provisions by the Native Title Amendment Act 1998 (Cth)) to allow a future act to be undertaken). Lee J said at [13]:

It is plain that s 85A is not intended to apply to any proceeding other than a proceeding to which s 80 applies. Having regard to s 79A in the context of Pt 4 as a whole, the Part should be read as setting out the “rules” for proceedings brought pursuant to the jurisdiction conferred on the Court by that Part, included within which “rules” is a “rule” in relation to the costs of such proceedings.

16    Section 80 provides that the provisions of Pt 4 of the NT Act, apply in proceedings “in relation to applications filed in the Federal Court that relate to native title”, reflecting the wording in s 81. His Honour concluded at [19]-[21] that the reference to “proceeding” in s 80 is a reference to a matter in respect of which exclusive jurisdiction is conferred on this Court. Consequently, an order for judicial review sought under the ADJR Act to quash the decision made by the Tribunal as a decision made without statutory power was not an application for an order enforcing a duty imposed on the Tribunal by the NT Act but an application to enforce a duty imposed on the Tribunal by law that it not exceed the authority granted to it by the NT Act. It did not concern the exclusive jurisdiction of the Court under s 81, and therefore s 43 of the FCA Act governed the exercise of the costs discretion.

17    In Lardil Peoples, the Full Court considered whether registered native title claimants could successfully challenge the decision of the State of Queensland to grant an authority to a corporate entity to establish a buoy mooring within the area subject to the appellant’s claim. At first instance, that application was refused. As the decision indicates, the reason why the application was unsuccessful is that the grant of the buoy mooring was not shown to be a future act under s 133 of the NT Act because it did not affect native title by extinguishing native title rights and interests or by being wholly or partly inconsistent with their continued existence, enjoyment or exercise as per s 227. It was not sufficient for the registered native title claimants simply to assert that the proposed future act might affect native title rights and interests, there had to be evidence to suggest that it would in fact do so. The question of costs then fell to be considered. French J at [39] and Dowsett J at [156] considered that the source of the Court’s jurisdiction to hear and determine the proceeding was not pursuant to s 81. The matter came within the “miscellaneous” jurisdiction of the Court under s 213(1), “in relation to matters arising under” the NT Act.

18    Section 213 provides:

Native title to be determined in accordance with this Act

(1)    If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

Matters arising under this Act

(2)    Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.

19    The claim did not involve any assertion of native title rights and interests, nor any relief which could be seen as amounting to requiring a determination of native title for the purposes of s 213(2), even provisionally. Those circumstances are a point of distinction from the present proceedings.

20    On the issue of costs, Dowsett J (with whom French J agreed) decided that s 85A did not apply directly because the proceeding was brought pursuant to s 213(2) of the NT Act, and was therefore not within the exclusive jurisdiction of the Court. His Honour at [153]-[159] said that the application of s 85A was confined to matters arising under the exclusive jurisdiction conferred by s 81 of the NT Act and not matters that relate to native title under s 213(2). He did not specifically refer to s 169 of the NT Act.

21     Dowsett J at [156] after referring to Pt 4 of the NT Act said:

It is difficult to avoid the conclusion that the jurisdiction conferred by Pt 4 is intended to supplement the operation of Pt 3 and that an application which relates to native title is an application made pursuant to that part. That would not include the applications referred to in s 69(2). All other applications referred to in Pt 3 appear to be expressly identified while those to which s 69(2) referred are not. This suggests that ss 69(2) and 213(2) deal with the same matters. I consider that the conferment of jurisdiction pursuant to s 81 is limited to the matters arising under Pt 3 and that s 213(2) confers jurisdiction not otherwise expressly conferred under the NTA.

22    Since the source of the Court’s power was under s 213(2), and there was no attempt to establish native title by the appellant in that case, the discretionary costs provision under s 43 of the FCA Act applied without any direct input by s 85A. Dowsett J then observed at [157]:

If this construction is correct then with one possible exception, it follows that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by s 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See s 213(1). However that exception has no application for present purposes because the appellants have not sought to establish native title.

23    By way of contrast to the decision referred to above, the source of the right of appeal relied on by the appellants at first instance was s 169 of the NT Act. At first instance to the Court, McKerracher J, having regard to the spirit of s 85A of the NT Act, made no order as to the costs of the proceedings. His Honour did not need to decide whether s 169 fell within the Court’s exclusive jurisdiction conveyed by s 81: Cheedy on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2010] FCA 1154. His Honour said at [8]:

Shortly put, while the rule in s 85A NTA does not on the strength of Lardil have direct application, nevertheless, it may be relevant to the exercise of the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA).  It is appropriate in the exercise of s 43 FCA discretion, as it was in Cox, to take into account all relevant matters including the nature of the proceeding, the question of whether important and novel questions are being responsibly pursued and the desirability of resolution of those questions without costs being imposed adversely as a penalty (see Latoudis v Casey (1990) 170 CLR 534 (at 566-567).  These concepts are also discussed by Finn J in Reid v South Australia [2007] FCA 1479 (at [54]). 

24    The legislative context to the present proceeding at first instance and on appeal is Div 3 Pt 2 of the NT Act dealing with future acts. Broadly speaking, s 24AA of Div 3 of Pt 2 of the NT Act says that the provisions concern future acts which affect native title, as defined in ss 227 and 233 of the NT Act. In the case of the future acts being the proposed grants of the mining leases, s 29 obliged the State of Western Australia to give notice of the proposed grant of mining leases to the appellants as the registered native title claimants. Once that was done, the appellants as a native title party (as defined in s 30) became a negotiation party under s 30A and was required to participate in negotiations about the terms upon which the proposed future act should be permitted with a view to reaching agreement on that matter including about the conditions to be complied with by any of the parties. In the absence of agreement, s 35 entitled FMG to seek an arbitral body determination on those matters. The relevant arbitral body was the Tribunal. The Tribunal then, in accordance with ss 38 and 39, was required to make a determination about whether the proposed future acts should be done or should not be done, or if they should be done whether that was subject to conditions to be complied with by any of the parties.

25    It is the determination of the Tribunal as the arbitral body which is then addressed in s 169 of the NT Act. It provides for an appeal on a question of law to the Court from any decision or determination of the Tribunal “in that proceeding”, that is in the “right to negotiate application”. In Brownley, Lee J at [3] specifically noted that the proceeding there was not an appeal on a question of law, provided for under s 169 of the NT Act.

26    By an analogous process of reasoning to that referred to in the cases considered above, if the first instance decision was a decision to which s 85A of the NT Act directly applied in the circumstances, notwithstanding that the jurisdiction for the appeals to this Court is s 24 of the FCA Act, s 85A would equally apply to the appeals. As mentioned above, in the first instance decision, McKerracher J did not formally determine whether s 85A applied directly to the proceeding, as in any event, his Honour considered that applying the spirit of s 85A in the circumstances resulted in there being no order as to costs.

27    The question whether s 85A applies directly to a proceeding brought by way of appeal on a question of law from a decision of the Tribunal under s 169 in Pt 6 Div 5 of the NT Act has not previously been determined. It was adverted to by Gilmour J in Cheedy v State of Western Australia (No 2) [2011] FCA 305 when his Honour dismissed two motions of the appellants to stay the Tribunal decisions pending the hearing and determination of these appeals. As his Honour said at [4], the relevant inquiry is not whether the Court’s jurisdiction is exclusive or non-exclusive. It is to identify whether s 85A, on its proper construction applies directly or otherwise to the particular proceeding.

28    As is apparent from the decision in Lardil Peoples, the applicability of s 85A to a proceeding under s 169 of the NT Act did not specifically arise there. Nevertheless, as Gilmour J apprehended in the decision referred immediately above, the reasoning of Dowsett J (with whom French J agreed on the issue of costs) suggested that s 85A was limited in its direct application to proceedings in which the Court has jurisdiction under s 81 of the NT Act.

29    It is appropriate now to revisit the relevant statutory provisions, more comprehensively.

30    Part 3 of the NT Act deals generally with applications. Section 60A(1) provides an overview of Pt 3. It indicates that Pt 3 has rules for making applications to the Federal Court for native title determinations, revised native title determinations and compensation in Div 1, various other applications to the Federal Court in Div 1A, applications to the Tribunal under the “right to negotiate provisions” in Div 3 of Pt 2 as provided in Div 2, and applications to the Native Title Registrar objecting against registration of certain ILUAs under Div 2A. Section 60A(2) says that the provisions in Pt 3 set out who may make the different kinds of applications, what they must contain and what is to be done when they are made.

31    Division 1 (ss 61-68) deals with applications for native title and for compensation, and related matters. Division 1A (ss 69(1)) deals with other applications to the Federal Court under Div 1A: claim registration applications, applications to remove an agreement from the ILUAs Register, and applications about the transfer of records. Reference to s 69(1) has been made above. Section 69(2) in Div 1A of Pt 3 of the NT Act is of limited significance in elaborating upon the scope and limits of the application of s 85A. It is not a grant of jurisdiction. It says that Div 1A applies to any other application to the Federal Court in relation to a matter arising under the NT Act. The only other section in Div 1A is s 70 which requires compliance with the Federal Court Rules. Division 2 (ss 75-77) deals with applications to the Tribunal on “right to negotiate” matters. That is a reference to the arbitral proceedings before the Tribunal. That process sources the right to appeal to this Court under s 169 on a question of law. Division 2A (ss 77A-77B) deals with applications to the Native Title Registrar on objections against registration of an ILUA. Division 3 (ss 78-79) deals with miscellaneous matters.

32    Following Pt 3 is Pt 4 dealing with Determinations of the Federal Court. It refers generally to rules for processing Federal Court applications, and making determinations, relating to native title. It, too, has a series of Divisions dealing with general rules, referring applications for mediation, agreements and unopposed applications, conferences, and orders. Division 1A (ss 80-86) is headed “General”. Section 80 provides:

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

33    Section 81 provides:

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

34    Sections 82, 83 and 83A deal with procedural matters. Section 84 dealing with parties is confined to proceedings in relation to applications to which s 61 applies. By clear implication, other general provisions of Div 1A apply to proceedings other than to applications to which s 61 applies, otherwise that express restriction contained in s 84 would be otiose. Section 84A gives the Commonwealth Minister the right to intervene in a proceeding before the Court in a matter arising under the NT Act. That is unconfined, provided the proceeding is a matter arising under the NT Act. In its terms, it would extend to an appeal under s 169. It is easy to conceive of proposed future acts, the subject of a “right to negotiate” application in which the Commonwealth may wish to intervene. There is no reason to think that that right of intervention should be excluded from the Commonwealth Minister in a proceeding under s 169. The same breadth of scope is apparent in ss 84B and 85 providing for the appointment of agents in a proceeding, and representation before the Court. Section 84C provides for strike out applications in respect of particular proceedings under ss 61, 61A or 62. So too does s 84D concerning possible defects and authorisation in proceedings under s 61.

35    The reference to “a proceeding” in s 85A takes its meaning from ss 80 and 81. From the textual references referred to above, applications that “relate to native title” referred to in s 81 should not be unduly confined to proceedings claiming a determination of native title or compensation under s 61. Where provisions of Div 1A are intended to be so confined, they expressly say so.

36    The specific provisions referred to in ss 84 and 84C (that is ss 61, 61A and 62) are all in Div 1 of Pt 3 dealing with native title and compensation applications. The more general operation of the other provisions in Div 1A must either be confined to the three discrete applications in s 69(1) or have a more broad application.

37    Having regard to their content, there is no apparent policy which would suggest their ambit was confined to applications under s 69(1). Indeed, the contrary is the case. Nor is there any wording which supports such a confined operation. If that were intended, it would have been easy to specifically refer to certain applications under s 69(1) as well as under ss 61, 61A and 62. The statement in s 80 as to the operation of Pt 4 is not confined: it is to apply to proceedings in this Court that “relate to native title”. That is on its face a wide expression. It is in the context of Pt 3 encompassing not just applications to the Court made under Pt 3 Div 1 but also applications to the Court referred to in Div 1A, which includes s 69(2) providing for “any other application” to the Court in relation to a matter arising under the NT Act. Part 3, Div 2 deals with “right to negotiate” arbitral applications before the Tribunal. The reference to such proceedings when addressing “applications” in Pt 3 would suggest that the limited right of appeal from a Tribunal decision on such an application under s 169 would also be in contemplation. Such an appeal would readily and sensibly fall within the compass of s 69(2). It is hard to see that the general words of s 69(2) would not have that ambit. It is also hard to see that the general words of ss 80 and 81, either in that overall context or even standing alone by reference to their text, would not also be so similarly construed.

38    Those matters point to the conclusion that s 85A applies to an application by way of appeal under s 169 of the NT Act. A possible contra-indicator to that conclusion is that s 169(5) separately grants the Court jurisdiction to hear and determine appeals instituted in the Court under s 169. If proper work is to be given to s 169(5) it might be read as conferring a jurisdiction different from that conferred by s 81. The reason why that is not the case, and s 169(5) is not simply surplusage, is that the appeal to the Federal Court under s 169 is within its original jurisdiction. Section 169(5) allows for that appeal in the Court’s original jurisdiction to be heard by a Full Court if that is appropriate. There is an analogue for such an appeal in s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth), under which the “appeal” from a decision of the Administrative Appeals Tribunal may be heard by a single judge or may (and in certain circumstances must) be heard by a Full Court. Accordingly, despite s 169(5), the conclusion based on the considerations referred to above stands. The jurisdiction in s 81, for the purposes of achieving the procedures and exercising the powers in Pt 4 Div 1A, is not diminished by the particular jurisdiction conferred in s 169(5).

39    In our view the decision whether s 85A applies directly is made not by reference to whether the Court is exercising exclusive or non-exclusive jurisdiction, but rather by reference to the terms of s 85A, its position in the Act and surrounding provisions, and the textual terms of s 169. A similar approach appears to have been taken by French J in Strickland v Native Title Registrar [2000] FCA 10 at [12] in respect of a review under s 190D of the NT Act as then in force. In FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49 at [46], the Full Court (Spender, Sundberg and McKerracher JJ) at [46] applied s 85A in making no order as to costs in an appeal under s 169 of the NT Act concerning the status of a “right to negotiate” decision of the Tribunal. In neither of those decisions was the application of s 85A the subject of detailed consideration.

40    In Akiba v Queensland (2010) 184 FCR 406, Greenwood J applied s 85A directly in deciding the question of costs. That decision involved only the question of costs, as the motion to set aside a subpoena (issued in an application under s 61 of the NT Act) which was a contentious interlocutory issue had been resolved by the withdrawal of the motion, so the direct applicability of s 85A was not in issue.

41    His Honour at [45]-[46] referred to Lardil Peoples in the following way:

In Lardil v Queensland 108 FCR 453, Dowsett J at [156] (French J agreeing at [68]), concluded that the jurisdiction conferred by Pt 4 supplements the operation of Pt 3 and that an application which relates to native title for the purposes of s 81 is an application made pursuant to Pt 3 (as contemplated by s 13(1) or s 50(2)). That, in their Honours’ view, would not include “any other application” referred to in s 69(2) or a “matter arising under the Act” for the purpose of s 213(2). Thus, their Honours considered that the conferment of jurisdiction pursuant to s 81 is limited to matters arising under Pt 3 (that is, as Dowsett J had earlier discussed, the three applications contemplated by s 61(1), namely, an application for a determination of native title; an application for revocation or variation of an approved determination of native title, or a determination of compensation under s 50(2)).

The point of the majority analysis is reflected in the conclusion at [157] that a “proceeding” for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred in relation to matters arising under the Act. Since, in Lardil v Queensland, the Court was exercising the subject matter jurisdiction conferred by s 213(2), s 85A did not apply to those proceedings: [159].

42    That accurately reflects the decision of the Full Court in that case, but it does not directly decide whether an application under s 169 attracts the direct application of s 85A as to costs. The role ascribed to s 69(2) in that case is inconsistent with the line of reasoning adopted above. It is, however, unnecessary to decide whether these appeals from the decision at first instance under s 169 of the NT Act are distinguishable from Lardil Peoples, since that case did not decide the point. Nor can it be considered it should not be followed as it is plainly wrong: see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 ALR 1 at [190]; Transurban City Link Ltd v Allan (1999) 95 FCR 553. That is because it is not necessary on these appeals to determine the issue.

43    Whether s 85A applies directly, or whether the Court applies the spirit of s 85A, the result is the same.

44    In our view, contrary to the submissions of the FMG, this is not a matter where indemnity costs should be ordered. The Court does not think that the appellant, properly advised, should have known there was no chance of success or that the appeals exhibit sufficient special or unusual features as to warrant an order for costs on an indemnity basis. Although the Full Court expressed discontent with the way in which the proceeding was presented (cf Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at [24]), and the disorganisation in the appellants’ conduct (at [79]-[84] and [133]-[146]), the decision of the Full Court does not indicate that the principal issues sought to be ventilated were insignificant or without merit. However, that disorganisation should be reflected to some degree in the order as to costs. So too should be taken into account the fact that the proposals addressed in the Full Court’s reasons at [155]-[160] were largely unmeritorious. Although grounds three and four as originally expressed were abandoned, there were significant issues raised by the appellants on both appeals on the primary grounds. As emerged in the course of contentions, there were significant conditions in the reasons and orders of the Tribunal directed to preserving means by which the appellants may seek to protect their claimed native title rights which did not appear to have been fully apprehended before the appeal.

45     On balance, it is the view of the Court that the appellant in each appeal should pay one-half of the second respondents’ costs of each of the appeals.

Associate:

Dated:    16 December 2011