De Rose v State of South Australia (No 2) [2005] FCAFC 137

De Rose v State of South Australia (No 2) [2005] FCAFC 137

Applying s 85A of the Native Title Act 1993 (Cth), the starting point was that each party should bear its or their own costs unless the circumstances made it appropriate to order otherwise. The circumstances did not warrant a costs order for the appellants: the respondents had succeeded at trial, the appeal concerned the first complex interaction between native title and pastoral leases in South Australia, the case was fairly a test case, mediation narrowed issues after De Rose (No 1), the Fullers' unsuccessful arguments were not unreasonable or clearly untenable, and the appeal was not unnecessarily prolonged by the Fullers' conduct.

Jurisdiction
Australia
Judgment Date
28 July 2005
Procedural Posture
Native Title Costs Appeal / Submissions on Costs After Determination of Native Title on Appeal
Outcome
Order 14 made on 8 June 2005 was vacated and no order was made as to costs.
Legal Topics
['costs in Native Title Proceedings' 'section 85 a of the Native Title Act 1993 (cth)' 'discretion to Award Costs' 'native Title and Pastoral Leases']
['native Title' 'costs'] ['costs in Native Title Proceedings' 'section 85 a of the Native Title Act 1993 (cth)' 'discretion to Award Costs' 'native Title and Pastoral Leases']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Native Title Costs Appeal / Submissions on Costs After Determination of Native Title on Appeal

Legal Issues

  1. 1 ["Whether the costs order requiring the first and second respondents to pay the appellants' costs of the appeal should stand." 'Whether, under s 85A of the Native Title Act 1993 (Cth), each party should bear its or their own costs of the appeal.' "Whether the respondents' conduct warranted a costs order in favour of the appellants."]

Ratio Decidendi

Applying s 85A of the Native Title Act 1993 (Cth), the starting point was that each party should bear its or their own costs unless the circumstances made it appropriate to order otherwise. The circumstances did not warrant a costs order for the appellants: the respondents had succeeded at trial, the appeal concerned the first complex interaction between native title and pastoral leases in South Australia, the case was fairly a test case, mediation narrowed issues after De Rose (No 1), the Fullers' unsuccessful arguments were not unreasonable or clearly untenable, and the appeal was not unnecessarily prolonged by the Fullers' conduct.

Court Disposition

Order 14 made on 8 June 2005 was vacated and no order was made as to costs.

Orders

  • ['Order 14 made on 8 June 2005 be vacated.' 'There be no order as to costs.']