Federal Court of Australia

Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 770

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s fees for setting down and hearing the proceeding WAD 37 of 2022, made pursuant to Schedule 1 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth), as set out in the invoice dated 27 September 2024 to the sum of $507,365.00, be waived.

2.    No further orders as to costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1    By interlocutory application filed on 19 June 2025, the applicant in these proceedings seeks a direction pursuant to reg 2.03(1) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) that setting down and hearing fees levied under Schedule 1 of the Regulations in the amount of $507,365 be waived.

2    The applicant is Yindjibarndi Ngurra Aboriginal Corporation RNTBC (YNAC) which has brought proceedings pursuant to s 61 of the Native Title Act 1993 (Cth) as the registered native title body corporate which holds the determined native title rights and interests as trustee for the Yindjibarndi native title holders as determined in Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v State of Western Australia (No 2) [2017] FCA 1299; 366 ALR 467. The first respondent is the State of Western Australia, the second to sixth respondents are a group of companies that I refer to collectively as FMG, being FMG Pilbara Pty Ltd, Pilbara Energy (Generation) Pty Ltd, Pilbara Energy Company Pty Ltd (PEC), The Pilbara Infrastructure Pty Ltd and Pilbara Gas Pipeline Pty Ltd. The seventh respondent is Yamatji Marlpa Aboriginal Corporation (Yamatji Marlpa).

3    The interlocutory application was filed together with supporting affidavits affirmed by Simon Blackshield, the solicitor representing YNAC who has lengthy experience in native title practice and has been employed by YNAC from on or about February 2015, Kaye Warrie and Stanley Warrie, common law Yindjibarndi native title holders as recognised in the determinations of Warrie No 2 and Daniel v State of Western Australia [2005] FCA 536, as upheld by the Full Court in Moses v State of Western Australia [2007] FCAFC 78; 160 FCR 148. Also filed with the interlocutory application were helpful submissions in support prepared by Andrew Mason, of counsel.

4    The other respondents indicated that they did not wish to be heard on the application. Yamatji Marlpa supports the orders sought but also did not seek to be heard. I have determined the application on the papers.

5    The proceedings represent a case of significant public interest. According to counsel, they represent the first application for compensation to be paid pursuant to Division 3 of Part 2 of the Native Title Act and raise a number of novel questions concerning the construction of the future acts regime within that Act. The amount in compensation sought by YNAC is very significant. The public interest in the case was such that at an early stage the Court permitted the proceedings to be live streamed and there is a public version of the court file. The hearing has been conducted over several years, with on-country hearings conducted in the Pilbara as well as in the Perth Registry of the Federal Court.

6    The evidence of Mr Blackshield explains that the proceedings were first set down for hearing by orders made on 14 December 2022 with the lay evidence to be heard in August 2023 (on country), expert evidence in October 2023 and closing submissions in March 2024. Urgent preservation of evidence hearing was subsequently found to be necessary and the matter was listed in March 2023. Alterations to the timetable were subsequently necessary and the expert evidence was instead heard in April 2024 and October 2024, with closing submissions in February 2025.

7    On 14 May 2024, Mr Blackshield received an invoice from the Federal Court of $439,585 for setting down and hearing fees, some 17 months after the matter was set down for hearing. He made an application for a fee exemption within reg 2.05(1)(f) of the Regulations which was rejected. Subsequently, an adjusted invoice was received by Mr Blackshield from the Federal Court for $507,365. He made a further fee-exemption application which was rejected. Mr Blackshield gives evidence that in more than 30 years of native title practice, he is not aware of the court ever imposing setting down or hearing fees on any of his native title clients.

8    Regulation 2.03(1) provides:

A fee in relation to a proceeding in a relevant court is payable as set out in this section, unless the relevant court, or a Judge or relevant Registrar of that court, directs otherwise.

9    Regulation 2.05(1) provides that certain persons are exempt from paying such fees if, at the time the fee is payable, one or more of the conditions in (a) to (f) apply. It was apparently on the basis that YNAC could not satisfy the requirements in these subsections were met that exemptions from the fees were refused. Those conditions concern whether the applicant for exemption: (a) has been granted legal aid; (b) is the holder of one of several Commonwealth concession cards; (c) is serving a sentence of imprisonment or is otherwise detained in a public institution or in immigration detention; (d) is younger than 18; (e) is receiving youth allowance or Austudy payments (under the Social Security Act 1991 (Cth)) or benefits under the ABSTUDY Scheme; or (f) has received funding for the proceeding under Part 11 of the Native Title Act from a representative body within s 253 of that Act or a person or body to whom funding has been made available under s 203FE of that Act.

10    It is apparent that the discretion conferred in reg 2.03(1) of the Regulations is not fettered by the scope of the particular exemptions identified in reg 2.05. Otherwise, the discretion would be superfluous; Westpac Life Insurance Services Ltd v Estate of the Late Graham Brian Ugle (No 2) [2019] FCA 1445 (Thawley J) at [34]. The discretion operates more broadly, although it of course must be exercised in a manner that is consistent with the policy and purposes of the legislation pursuant to which it has been conferred.

11    In Linke v T T Builders Pty Ltd [2014] FCA 672 at [27]–[28], White J considered the scope of the discretion and considered that they include the following:

(a)    The fees fixed by the Regulations are the fees ordinarily applying, and that an exercise of discretion on proper grounds is required if that position is to be altered. Accordingly, the party applying for the reduction has an evidential and persuasive onus;

(b)    Regard must be had to the objects and purposes apparently sought to be achieved by the imposition of fees;

(c)    The circumstance that the difference in fees payable in respect of FC Court proceedings and proceedings in this Court reflects to some extent the differences in the manner of conduct of the proceedings in the respective Courts;

(d)    The expectation that ordinarily parties having the benefit of the manner of conduct and proceedings in this Court will pay the fees associated with that manner of conduct;

(e)    The circumstances in which the proceedings came to be transferred to this Court and, in particular, whether the transfer occurred involuntarily, or with the consent or acquiescence of the applying party;

(f)    The financial circumstances of the applying party and, in particular, any indications of financial hardship;

(g)    The personal circumstances more generally of the applying party;

(h)    The nature and importance of the underlying proceedings and, in particular, any public interest in having the matter proceed to determination;

(i)    Whether there are related proceedings in this Court involving the same parties in respect of which full fees have been paid or in respect of which relief has been granted.

12    The following matters persuade me that it is appropriate to exercise the discretion pursuant to reg 2.03(1) in favour of directing that the fees are not payable.

13    First, the evidence discloses that Yamatji Marlpa has provided ongoing and substantial financial support to YNAC in the conduct of the proceedings which may satisfy, or is analogous to, the requirement in reg 2.05(f).

14    Secondly, the persons who are likely to benefit from the proceedings are the Yindjibarndi people. The evidence adduced indicates that substantial numbers of those people have a personal income of between $0 and $20,000 a year and that 50% of the population live in assisted housing. YNAC does not have direct access to funds for the payment of the hearing fees and has no ability to fund the proceedings meaning that it depends on third party Aboriginal bodies to assist in the funding. The evidence indicates that the effect of requiring YNAC to pay the fees will be to divert resources of the Yindjibarndi Community and Commercial Limited from payments made for the social well-being of the Yindjibarndi people to the conduct of the proceedings.

15    Thirdly, all parties to the substantive proceedings accept that the compensation claim advanced is a test case of public importance. There can be no doubt that it is in the public interest that the proceedings are concluded.

16    Finally, the evidence of Mr Blackshield is that the applicants in each of Daniel, and Warrie proceedings were not charged hearing fees or setting down fees.

17    Accordingly, I direct that the fees be waived.

Associate:

Dated:    11 July 2025

SCHEDULE OF PARTIES