Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659

FEDERAL COURT OF AUSTRALIA

Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659 ABORIGINALS – NATIVE TITLE – costs – application by State Government for costs order against applicant in respect of steps taken for purposes of preparing for interlocutory hearings to preserve evidence of witnesses – State incurred substantial costs in seeking to comply with court's orders – course ultimately abandoned by applicants – whether applicant group had caused State to incur costs by any 'unreasonable act or omission' – whether costs could be ordered pursuant to s 85A(2), Native Title Act 1993 (Cth) or s 43, Federal Court of Australia Act 1976 (Cth) – meaning of 'any unreasonable act or omission' in s 85A(2), Native Title Act – whether court's power under s 85A(2) confined to circumstances which would warrant order for costs on indemnity basis in ordinary civil litigation Held: Applicationgranted – applicant ordered to pay 50% of State's costs – applicant acted unreasonably – unjust for State to bear those costs WORDS AND PHRASES – "any unreasonable act or omission" Federal Court of Australia Act 1976 (Cth), s 43 Native Title Act 1993 (Cth), ss 61, 85A Workplace Relations Act 1996 (Cth), s 824(2) De Rose v South Australia (No 2) [2005] FCAFC 137 followed McKenzie v South Australia [2006] FCA 891 cited Oshlack v Richmond River Council (1998) 193 CLR 72 followed Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 cited Paras v Public Service Body Head of the Department of Infrastructure (No 3) (2006) 152 FCR 534 referred to Probiotic Limited v The University of Melbourne [2008] FCAFC 5 followed Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 cited Reid v South Australia [2007] FCA 1479 cited The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 referred to Ward v Western Australia (1999) 93 FCR 305 cited Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 cited MONTY PRIOR; GEORGE ALLAN PRYOR; RENARTA PRIOR; CAROL PRIOR-PATTERSON; JEFFREY LENOY ON BEHALF OF THE BIRRI-GUBBA (CAPE UPSTART) PEOPLE v STATE OF QUEENSLAND, BOWEN SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, ALAN GRIGGS AND WILLIAM GEORGE PORTER QUD 6249 OF 1998