FEDERAL COURT OF AUSTRALIA Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia (No 2) [2017] FCA 1468 Appeal from: Peterson on behalf of the Wunna Nyiyaparli v State of Western Australia [2016] FCA 1528 File number: WAD 17 of 2017 Judge: MCKERRACHER J Date of judgment: 6 December 2017 Catchwords: COSTS – discretion of Court to award costs in native title proceedings under s 85A Native Title Act 1993 (Cth) – factors relevant to Court's discretion to award costs – whether costs should be fixed or assessed Legislation: Federal Court of Australia Act 1976 (Cth) ss s24(1AA)(b)(i), 43 Native Title Act 1993 (Cth) ss 85A, 85A(1), 85A(2) Federal Court Rules 2001 (Cth) r 40.02(b) Cases cited: Cheedy v Western Australia (No 2) (2011) 199 FCR 23 Dattilo v Commonwealth of Australia [2017] FCA 1061 Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 Oil Basins Limited v Watson [2014] FCAFC 154 Peterson and Others v State of Western Australia [2017] FCA 1056 Stock v Native Title Registrar (No 2) [2014] FCA 202 Date of hearing: Determined on the papers Date of last submissions: 29 September 2017 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: Mr E Coffin, Ms M Drage and Ms A Roy appeared in person Counsel for the First Respondent: Mr M Pudovskis Solicitor for the First Respondent: State Solicitor's Office Counsel for the Fourteenth Respondent: Mr S Wright Solicitor for the Fourteenth Respondent: Yamatji Marlpa Aboriginal Corporation ORDERS WAD 17 of 2017 BETWEEN: BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, STEPHEN PETERSON AND AILSA ROY ON BEHAL FOF THE WUNNA NYIYAPARLI PEOPLE Appellant AND: STATE OF WESTERN AUSTRALIA First Respondent BHP BILLITON MINERALS PTY LTD Second Respondent CENTRAL PILBARA SOUTH IRON ORE PTY LTD (and others named in the Schedule) Third Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 6 December 2017 THE COURT ORDERS THAT: 1. The Appellant pay the costs of the Fourteenth Respondent fixed at $14,561.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: INTRODUCTION 1 In Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia [2017] FCA 1056 (Peterson No 1), for the reasons contained in that judgment, I upheld an application for the appeal's summary dismissal on the basis of lack of competency. Submissions, if any, as to any additional relief to which the respondents contend they may be entitled were to be filed and served within 28 days and any submissions in response were to be filed and served within 28 days thereafter. 2 By further submissions, the Nyiyaparli Respondent (as there defined) seeks an order that the appellant pay the Nyiyaparli respondent's costs of the appeal and objection to the competency of the appeal in the sum of $14,561.00, or, alternatively, for an order that the costs be taxed if not agreed. No submissions were filed by any other Respondent and the appellant did not file any submissions in response. 3 For the reasons which follow, in my view, costs should be fixed at $14,561.00 in favour of the Nyiyaparli respondent. NYIYAPARLI RESPONDENT'S SuBMISSIONS Application for costs 4 The Nyiyaparli Respondent has filed an affidavit of Ms Collins affirmed 29 September 2017 and submissions. Section 85A of the Native Title Act 5 Section 85A of the Native Title Act 1993 (Cth) (NTA) applies in relation to the costs of these appeal proceedings. Accordingly, notwithstanding s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA), unless the Court orders otherwise, each party must bear their own costs: s 85A(1). 6 Section 85A(2) provides that, 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 principles applicable to the exercise of the discretion to award costs, in the context of s 85A of the NTA, were summarised by the Full Court in Cheedy v Western Australia (No 2) (2011) 199 FCR 23 (at [9]) as follows: (a) 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; (b) the 'unreasonable conduct' of the parties is not a jurisdictional fact which preconditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1); (c) 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 (d) 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. 8 In Oil Basins Limited v Watson [2014] FCAFC 154 the Full Court upheld a costs order against a Respondent party. The Full Court agreed with the trial judge that the Respondent acted unreasonably, not because it was motivated to contest native title, but because it did not have reasonable grounds for doing so. 9 The fact that the Nyiyaparli Respondent was represented by a representative Aboriginal/Torres Strait Islander body does not preclude an award of costs. See Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635. Exercise of discretion in this case 10 In relation to the reasoning in Peterson No 1, the Nyiyaparli Respondent submits that the Appellant acted unreasonably (within the meaning of s 85A(2) of the NTA) in: (a) purporting to serve and proceed with an appeal which was back-dated and not filed within the required 21 days from the date of the order appealed from and for which no extension of time for filing an appeal had been sought or granted; (b) purporting to serve and proceed with an appeal against an interlocutory order for which no leave had been sought or granted and for which leave, if it had been applied for, would not have been granted because the decision appealed against was not attended with sufficient doubt to warrant reconsideration on appeal and because no substantial injustice would occur from refusal of such leave; (c) purporting to serve and proceed with an appeal against an order removing them as respondents to an action which is not possible due to s 24(1AA)(b)(i) of the FCA; and (d) putting the Nyiyaparli Respondent to the expense of participating in the incompetent appeal and in having to lodge an objection to the competency of the appeal and to provide submissions and oral argument and attend hearings in relation to the said objection. Lump sum costs 11 The affidavit of Cheryl Ann Collins affirmed 29 September 2017 attaches a draft bill of costs showing the items of time and costs spent or incurred by the Yamatji Marlpa Aboriginal Corporation as legal representatives for the Nyiyaparli Respondents in this matter, but based on the Federal Court scale. A lump sum order for costs may be made pursuant to Rule 40.02(b) of the Federal Court Rules 2001 (Cth). It is submitted that this matter was discrete and the calculation straightforward. A lump sum order for costs also saves the additional costs of a taxation. (See Stock v Native Title Registrar (No 2) [2014] FCA 202 (at [34]) and Dattilo v Commonwealth of Australia [2017] FCA 1061.) Consideration 12 The success of the Nyiayaparli Respondent was comprehensive. To varying degrees, each of the factors listed in [10] above are points validly made. Further, for the reasons explained in Peterson No 1, the Appellants have authored their own misfortune in the proceeding before the primary judge. The arguments on appeal had no prospects of success. The resources of the Court and the parties who must defend their position are not open ended. In my view pursuit of the appeal was unreasonable such that the Nyiyaparli Respondent should have its costs in accordance with the principles outlined in the authorities set out above. The costs sought are reasonable. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 6 December 2017 SCHEDULE OF PARTIES WAD 17 of 2017 Respondents Fourth Respondent: CHICHESTER METALS PTY LTD Fifth Respondent: FMG PILBARA PTY LTD Sixth Respondent: HANCOCK PROSPECTING PTY LTD Seventh Respondent: ROY HILL INFRASTRUCTURE PTY LTD Eighth Respondent: ROY HILL IRON ORE PTY LTD Ninth Respondent: KEYDRIVE PTY LTD Tenth Respondent: ANNE CATHERINE PAULL Eleventh Respondent: ROY HILL STATION PTY LTD Twelfth Respondent: STARTLINE NOMINEES PTY LTD Thirteenth Respondent: VANGUARD ENTERPRISES PTY LTD Fourteenth Respondent: DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER AND BILLY CADIGAN ON BEHALF OF THE NYIYAPARLI PEOPLE