Brownley v State of Western Australia [1999] FCA 1431

Brownley v State of Western Australia [1999] FCA 1431

The ADJR Act proceeding was not a proceeding in the Federal Court involving the exercise of the exclusive native title jurisdiction under s 81 of the Native Title Act 1993 (Cth), and therefore ss 80 and 85A did not apply. Costs were governed by s 43 of the Federal Court of Australia Act 1976 (Cth). The applicants had principally pursued private interests and had sought to reargue questions of fact rather than establish error by the Tribunal, so there was no reason to deny the State its costs. Anaconda Nickel Ltd's recoverable costs were limited because the real issues were between the applicants and the State and Anaconda's further involvement was largely of its own choice.

Jurisdiction
Australia
Judgment Date
20 October 1999
Procedural Posture
Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) for Review of a National Native Title Tribunal Decision; Costs Following Dismissal / Costs Submissions After the Proceeding Had Been Dismissed
Outcome
The Court held that s 85A of the Native Title Act 1993 (Cth) did not apply and ordered the applicants to pay the first respondent's costs and limited costs of the second respondent.
Legal Topics
['application of S 85 a of the Native Title Act 1993 (cth)' 'adjr Act Review of a National Native Title Tribunal Decision' 'federal Court Costs Discretion Under S 43 of the Federal Court of Australia Act 1976 (cth)' 'exclusive Jurisdiction Under S 81 of the Native Title Act 1993 (cth)']
['native Title' 'administrative Law' 'costs'] ['application of S 85 a of the Native Title Act 1993 (cth)' 'adjr Act Review of a National Native Title Tribunal Decision' 'federal Court Costs Discretion Under S 43 of the Federal Court of Australia Act 1976 (cth)' 'exclusive Jurisdiction Under S 81 of the Native Title Act 1993 (cth)']

Case Brief

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Procedural Posture

Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) for Review of a National Native Title Tribunal Decision; Costs Following Dismissal / Costs Submissions After the Proceeding Had Been Dismissed

Legal Issues

  1. 1 ['Whether an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to set aside a National Native Title Tribunal decision is a proceeding to which ss 80 and 85A of the Native Title Act 1993 (Cth) apply.' "Whether the statutory position that each party bear its own costs under s 85A of the Native Title Act 1993 (Cth) displaced the ordinary exercise of the Court's costs discretion." "Whether the applicants' contention that the litigation tested the legality of governmental action and served a public purpose justified no adverse costs order." 'Whether the applicants should be ordered to pay the costs of Anaconda Nickel Ltd and, if so, to what extent.']

Ratio Decidendi

The ADJR Act proceeding was not a proceeding in the Federal Court involving the exercise of the exclusive native title jurisdiction under s 81 of the Native Title Act 1993 (Cth), and therefore ss 80 and 85A did not apply. Costs were governed by s 43 of the Federal Court of Australia Act 1976 (Cth). The applicants had principally pursued private interests and had sought to reargue questions of fact rather than establish error by the Tribunal, so there was no reason to deny the State its costs. Anaconda Nickel Ltd's recoverable costs were limited because the real issues were between the applicants and the State and Anaconda's further involvement was largely of its own choice.

Court Disposition

The Court held that s 85A of the Native Title Act 1993 (Cth) did not apply and ordered the applicants to pay the first respondent's costs and limited costs of the second respondent.

Orders

  • ['The applicants pay the costs of the first respondent.' "The applicants pay the costs of the second respondent on the applicants' notice of motion filed 6 October 1998."]