Ward v State of Western Australia [1999] FCA 580

Ward v State of Western Australia [1999] FCA 580

Section 85A of the Native Title Act 1993 (Cth) does not impose a threshold condition for the Court's discretion to award costs. The starting point is that each party bears its own costs unless the Court, exercising its broad discretion judicially, decides otherwise. In the circumstances of this case, it is just for the first applicants to recover a substantial proportion of their costs due to their successful prosecution of a complex claim, considering the conduct and involvement of opposing parties.

Parties
First Applicants: Ben Ward & Ors (on behalf of the Miriuwung & Gajerrong People); Second Applicants: Cecil Ningarmara & Ors; Third Applicant: Delores Cheinmora & Ors (on behalf of the Balangarra Peoples); First Respondents: State of Western Australia & Ors; Second Respondent: Chief Minister of the Northern Territory; Third Respondent: Conservation Land Corporation; Fifth Respondents: Kimberley Land Council & Anor; Sixth Respondents: Alligator Airways Pty Ltd & Ors; Seventh Respondents: Carlton Hill Pty Ltd & Ors; Eighth Respondents: Amity Oil NL & Ors; Ninth Respondents: Calytrix Investments Pty Ltd & Ors; Tenth Respondents: Kimberley Sportfishing Club & Ors; Eleventh Respondent: Shire of Wyndham-East Kimberley; Twelfth Respondent: Pacific Hydro Group Two Pty Ltd; Thirteenth Respondent: Innes Holdings Pty Ltd; Intervener: Minister for Aboriginal & Torres Strait Islander Affairs
Jurisdiction
Australia
Judgment Date
06 May 1999
Procedural Posture
Native Title Determination Proceedings / Post Judgment, Application for Costs
Outcome
Costs order; 90% costs awarded to first applicants, apportioned 75% against State, 25% against Territory. No order for costs against second applicants or Innes.
Legal Topics
Costs, Discretion of Court, Statutory Interpretation, Apportionment of Costs
Native Title Civil Procedure Administrative Law Costs Discretion of Court Statutory Interpretation Apportionment of Costs

Case Brief

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Parties

Ben Ward & Ors (on behalf of the Miriuwung & Gajerrong People)

First Applicants

Cecil Ningarmara & Ors

Second Applicants

Delores Cheinmora & Ors (on behalf of the Balangarra Peoples)

Third Applicant

State of Western Australia & Ors

First Respondents

Chief Minister of the Northern Territory

Second Respondent

Conservation Land Corporation

Third Respondent

Kimberley Land Council & Anor

Fifth Respondents

Alligator Airways Pty Ltd & Ors

Sixth Respondents

Carlton Hill Pty Ltd & Ors

Seventh Respondents

Amity Oil NL & Ors

Eighth Respondents

Calytrix Investments Pty Ltd & Ors

Ninth Respondents

Kimberley Sportfishing Club & Ors

Tenth Respondents

Shire of Wyndham-East Kimberley

Eleventh Respondent

Pacific Hydro Group Two Pty Ltd

Twelfth Respondent

Innes Holdings Pty Ltd

Thirteenth Respondent

Minister for Aboriginal & Torres Strait Islander Affairs

Intervener

Procedural Posture

Native Title Determination Proceedings / Post Judgment, Application for Costs

Legal Issues

  1. 1 Whether s 85A of the Native Title Act 1993 (Cth) limits the Court's discretion to award costs
  2. 2 Proper construction of s 85A
  3. 3 Apportionment of costs among parties

Ratio Decidendi

Section 85A of the Native Title Act 1993 (Cth) does not impose a threshold condition for the Court's discretion to award costs. The starting point is that each party bears its own costs unless the Court, exercising its broad discretion judicially, decides otherwise. In the circumstances of this case, it is just for the first applicants to recover a substantial proportion of their costs due to their successful prosecution of a complex claim, considering the conduct and involvement of opposing parties.

Court Disposition

Costs order; 90% costs awarded to first applicants, apportioned 75% against State, 25% against Territory. No order for costs against second applicants or Innes.

Orders

  • The first and second respondents pay the costs of the first applicants as to 90 per cent thereof, three quarters to be paid by the first respondents and one quarter by the second respondent.
  • There be no other order for costs.