Native Title Year in Review 2018 10 Apr 2019

Costs Update

Kemppi v Adani Mining Pty Ltd and Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2)

We have reported on costs decisions for a number of years in our Native Title Years in Review and have seen an increasing number of costs applications both by and against native title parties. Last year saw security for costs ordered against a native title party.

Security for Costs against native title party

In the ongoing disputes about the ILUA between the Wangan and Jagalingou People and Adani Mining Pty Ltd (see our article Authorisation and Registration of ILUAs above), Adani obtained an order for security for its costs in the sum of $50,000 on 18 December 2018, which was to be paid into Court by 19 January 2019 or the native title party's appeal would be dismissed (Kemppi v Adani Mining Pty Ltd [2018] FCA 2012). This sum was paid into Court and the appeal will be heard in 2019.

Costs – Federal Court departed from the general rule

In Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams (No 2) [2018] FCA 2058, the ILUA registration objectors sought an order that costs follow the event (ie that the respondents pay their costs), but the Federal Court ordered that there be no order for costs.

Ordinarily in judicial review proceeding challenging the exercise of statutory power under the Native Title Act 1993 (Cth) (Native Title Act), the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party.

Section 85A of the Native Title Act (which provides that, unless a party has acted unreasonably, and unless the Court orders otherwise, each party to a proceeding is to bear his or her own costs) has no direct application to the exercise of the costs discretion in judicial review proceedings relating to native title decisions.

However, the Court exercised its discretion under section 43 of the Federal Court of Australia Act 1976 (Cth) and made no order for costs because:

the subject matter of the litigation was very closely related to the administration of the Native Title Act;
the question of the registration of ILUAs and the particular question of authorisation involving section 251A of the Native Title Act are both matters of importance and some complexity;
the rulings made concerning those questions were calculated to assist in identifying procedures which ordinarily and prudently will need to be taken to ensure that the authorisation process is conducted in the manner specified by the Native Title Act; and
there is a considerable public interest in seeing such procedures established and complied with, because the process of making ILUAs, registering them and then seeing them properly implemented, can be both time consuming and costly.

Key points to note
Applications for costs orders are becoming increasingly common in native title proceedings and judicial review proceedings relating to native title matters. The Courts have developed a significant body of case law on the issue, such that there is less controversy about costs applications than in earlier years. An order for security for costs against a native title party is less common. It will be interesting to see whether defendants in other proceedings seek similar orders in years to come.

Key points to note

Applications for costs orders are becoming increasingly common in native title proceedings and judicial review proceedings relating to native title matters. The Courts have developed a significant body of case law on the issue, such that there is less controversy about costs applications than in earlier years.
An order for security for costs against a native title party is less common. It will be interesting to see whether defendants in other proceedings seek similar orders in years to come.

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