FEDERAL COURT OF AUSTRALIA

Cheedy v State of Western Australia (No 2) [2011] FCA 305

THE COURT ORDERS THAT:

1.    The appellant pay the costs of the second respondent of each of the two motions dated 20 July 2010 to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    By judgment delivered on 25 November 2010, I dismissed two motions brought by the appellant to stay the judgment of the Court in Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 and the determination of the Native Title Tribunal, the subject of that judgment, pending the outcome of the appeal to the Full Court: Cheedy v State of Western Australia [2010] FCA 1305. I will refer to the appellant, in respect to these motions as the applicant.

2    The second respondent now applies for an order that the applicant pay its costs of the stay applications.

3    The applicant submits that the starting point on the question of costs in native title matters involves consideration of two questions: is the Court exercising exclusive jurisdiction or is it exercising non-exclusive jurisdiction. The first proposition then put by the applicant is that if the Court is exercising exclusive jurisdiction, s 85A of the Native Title Act 1993 (Cth) (“the NTA”) applies. The second proposition is that if the Court is exercising non-exclusive jurisdiction, s 43 of the Federal Court of Australia Act 1976 (Cth) (“the FCA”) applies.

4    This is a false dichotomy. Davidson v Fesl (No 2) [2005] FCAFC 274 at [7] is cited by the applicant as authority for the first proposition. It is not. There, French J (as his Honour was) and Finn J merely stated that the proceedings to which s 85A NTA applies are those in respect of which this Court has jurisdiction pursuant to s 81 of the NTA. Lee J earlier had come to the same conclusion: Brownley v Western Australia (1999) 167 ALR 170 at [21].

5    That his Honour expressed himself there in terms that s 85A only applies to a proceeding involving the exercise of the exclusive jurisdiction of the Federal Court under s 81, does not warrant the extrapolation of a principle contained within the applicants’ first proposition.

6    Rather the starting point is to identify the source of power to award costs in a case such as this. The applicant submits that this involves necessarily a consideration of s 85A NTA. 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.

7    The applicants’ primary submission is that this is the applicable statutory provision. I do not agree. In Lardil Peoples v Queensland (2001) 185 ALR 513, Dowsett J, with whom French J agreed, held that a ‘proceeding’ for the purposes of s 85A NTA is a proceeding within the jurisdiction conferred by s 81 NTA and does not apply to proceedings within the jurisdiction conferred by s 213(2) NTA. However, the applicant submits that the Court in Lardil did not consider the question of whether s 85A might also apply in circumstances where the Court is exercising exclusive jurisdiction under the NTA other than under s 81 such as under s 169(1). I do not think that such a question is open having regard to the construction given to the word ‘proceeding’. It is unnecessary for me to decide that question however, as the foundation for the submission is otherwise misconceived. As I stated in the primary reasons at [14] the appeal before the primary judge was instituted pursuant to the provision of s 169(1) NTA but at [15] that the appeal from that decision came before me pursuant to s 24(1)(a) of the FCA. It is to be remembered that I was and am acting in these matters on appeal as the Full Court pursuant to s 25(2B)(ab) of the FCA exercising appellate jurisdiction. The applicant’s reliance on the provisions of s 169 NTA as a platform for the submission as to the extended reach of s 85A is misconceived. Accordingly, s 85A has no application here. In my opinion, the question of costs of the applicant’s motions falls to be determined under s 43 of the FCA.

8    Where an action concerns native title issues, this Court has taken into consideration the “spirit” of s 85A of the NTA despite the fact that the source of the Court’s jurisdiction falls outside that provision: see, for example, the reasoning of McKerracher J in the present matters below ([2010] FCA 1154) when considering the appeals brought under s 169 of the NTA, outside of Part 4 of the Act. The applicants’ additional submission is that I should follow that course here. Again, I do not agree.

9    The Full Court in Murray v Registrar of the National Native Title Tribunal (2003) 132 FCR 402 approved such an approach for matters involving native title at first instance.

10    However, in Murray, the Full Court drew a distinction between matters at first instance and on appeal and applied the ordinary rule in the appeal that costs should follow the event.

11    Although these motions for stay orders were not appeals, they are made, as I earlier mentioned, in appellate proceedings.

12    There is no reason, in my opinion, why costs ought not follow the result. Accordingly, there will be an order that the appellant pay the costs of the second respondent to be taxed if not agreed.

Associate:

Dated:    1 April 2011