FEDERAL COURT OF AUSTRALIA Gomeroi People v Attorney-General of New South Wales (No 2) [2016] FCAFC 116 File number: NSD 632 of 2015 Judge: REEVES, BARKER AND BROMBERG JJ Date of judgment: 1 September 2016 Catchwords: COSTS – appeal allowed – whether discretion under s 85A(2) of the Native Title Act 1993 (Cth) should be exercised – whether unreasonable conduct by second respondent – whether costs should follow the event on appeal – no reasons justifying order for costs Legislation: Native Title Act 1993 (Cth) ss 66B, 85A, 85A(1), 85A(2) Cases cited: Cheedy v State of Western Australia (No 2) [2011] FCA 305 Date of hearing: Determined on the papers Date of last submissions: 17 June 2016 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: Mr D Bennett AC QC with Ms L Goodchild Solicitor for the Appellant: Sam Hegney Solicitors Counsel for the Second Respondent: Mr V Hughston SC with Mr C Gregory Solicitor for the Second Respondent: NTSCORP Limited ORDERS NSD 632 of 2015 BETWEEN: GOMEROI PEOPLE Appellant AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGES: REEVES, BARKER AND BROMBERG JJ DATE OF ORDER: 1 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The appellant's application to vary order 3 of the orders made 30 May 2016 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 30 May 2016, the Court allowed an appeal from orders made by the primary judge on 13 May 2015, which orders facilitated the conduct of a claim group meeting of the Gomeroi People (the appellant) by NTSCORP Limited, the second respondent in the appeal. 2 In allowing the appeal, the Court ordered that there be no order as to costs, but granted leave to the parties to apply to vary that order within seven days of its making. 3 The appellant, pursuant to that leave, applied for an order varying the order so that the costs of the appellant in the proceedings (including the appeal) are payable by NTSCORP. 4 For the reasons which follow, the Court is not minded to vary the order initially made. 5 Issues that arise, having regard to the submissions of the appellant and NTSCORP, include: Whether the exercise of the costs discretion is governed by s 85A of the Native Title Act 1993 (Cth) (NTA). If so, whether NTSCORP performed "any unreasonable act" which caused the appellant to incur costs in connection with the institution or conduct of the proceeding, for the purposes of s 85A(2). Whether, in relation to the appeal, this is a case where the usual principle, that costs follow the event, should not apply. 6 Section 85A of the NTA 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. 7 The appellant seeks a variation of the costs order so that NTSCORP not only pays the costs of the appeal, but also the costs of the "proceedings". In this context we understand, by referring to the proceedings, the appellant means to refer to the interlocutory application initially made by NTSCORP to be reinstated as the solicitor on the record in the claimant application. So far as that interlocutory proceeding is concerned, one which the primary judge dismissed apparently without any order being made in respect of costs, s 85A of the NTA would appear generally to apply, in that it arose under the NTA. On the face of it, s 85A(1) applied, so that each party to the proceeding was required to bear their own costs. That probably explains why her Honour did not make any order for costs on the dismissal of the interlocutory application. 8 To the extent that the appellant now seeks to contend that the costs of that proceeding (as well as the appeal) should now be awarded to it, on the basis that there was unreasonable conduct by NTSCORP for the purposes of s 85A(2), we do not agree. 9 The only order that NTSCORP initially sought on its interlocutory application was that it be reinstated as solicitor on the record of the claimant application. It did not seek orders concerning the conduct of a claim group meeting. The orders subsequently made by the primary judge concerning the claim group meeting may be seen, in the circumstances, to have resulted from the initiative of the primary judge, not of NTSCORP. 10 In those circumstances, it is not reasonable to contend, as the appellant does in its submissions, that NTSCORP made a "deliberate and intentional" decision to avoid the process provided by the NTA under s 66B to remove an applicant at a claim group meeting. 11 So far as the costs of the appeal more directly are concerned, while it may be generally accepted that on an appeal from a primary matter arising under the NTA, the ordinary rule that costs should follow the event should apply, as discussed in Cheedy v State of Western Australia (No 2) [2011] FCA 305 at [9] and [10], we do not consider that in the present circumstances that presumption should apply. 12 First, as already noted, the matter that came before this Court on appeal concerned the orders made by the primary judge, which were not applied for by NTSCORP. The primary judge, exercising a discretion that her Honour considered was then available to her, made those orders. That this Court has, by majority on appeal, set aside those orders, should not result, in our view, in a costs order on the appeal being visited on NTSCORP. In that regard, the appeal occurred in an unusual circumstance. 13 Not only was the circumstance of the appeal unusual in that regard, but the question raised, relating indirectly to the entitlement of a claim group to limit the authorisation of an applicant under the NTA, raised a question of some potential significance to the administration of the NTA going beyond the narrow interests of the parties. 14 Those various considerations resulted in the Court initially ordering that there be no order as to costs on the appeal. The Court considers that remains the appropriate order. 15 In those circumstances, the Court would order that the appellant's application to vary the costs order made 30 May 2016, be dismissed. 16 The appropriate order therefore is: (1) The appellant's application to vary order 3 of the orders made 30 May 2016 be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Barker and Bromberg. Associate: Dated: 1 September 2016