McKenzie v State of South Australia [2006] FCA 891

McKenzie v State of South Australia [2006] FCA 891

Leave to discontinue was appropriate because discontinuance would occasion no injustice apart from costs. A costs order in favour of the respondents was justified because the respondents, principally the Aboriginal Legal Rights Movement and with the State concurring, had performed a tutelary function in identifying serious apparent defects in the application and proposed amendment, assisting the orderly conduct of the proceeding; the conduct of the parties and the reasons for discontinuance warranted departing from the usual s 85A starting point that each party bear its own costs.

Jurisdiction
Australia
Judgment Date
30 June 2006
Procedural Posture
Native Title Proceeding; Motion for Leave to Discontinue / Application for Leave to Discontinue Proceeding SAD 27 of 2006 and Costs of the Discontinuance
Outcome
Leave granted to discontinue; applicants ordered to pay respondents' costs of the discontinuance.
Legal Topics
['discontinuance of Proceedings' 'representative Native Title Claimant Application' 'authorisation and Claim Group Composition' 'costs Discretion Under S 85 a of the Native Title Act' 'federal Court Costs Discretion']
['native Title' 'civil Procedure' 'costs'] ['discontinuance of Proceedings' 'representative Native Title Claimant Application' 'authorisation and Claim Group Composition' 'costs Discretion Under S 85 a of the Native Title Act' 'federal Court Costs Discretion']

Case Brief

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Procedural Posture

Native Title Proceeding; Motion for Leave to Discontinue / Application for Leave to Discontinue Proceeding SAD 27 of 2006 and Costs of the Discontinuance

Legal Issues

  1. 1 ['Whether leave should be granted to the applicants to discontinue proceeding SAD 27 of 2006.' "Whether the applicants should pay the respondents' costs of the discontinuance in light of s 85A of the Native Title Act 1953 (Cth)."]

Ratio Decidendi

Leave to discontinue was appropriate because discontinuance would occasion no injustice apart from costs. A costs order in favour of the respondents was justified because the respondents, principally the Aboriginal Legal Rights Movement and with the State concurring, had performed a tutelary function in identifying serious apparent defects in the application and proposed amendment, assisting the orderly conduct of the proceeding; the conduct of the parties and the reasons for discontinuance warranted departing from the usual s 85A starting point that each party bear its own costs.

Court Disposition

Leave granted to discontinue; applicants ordered to pay respondents' costs of the discontinuance.

Orders

  • ['Leave be granted to the applicants to discontinue proceeding number SAD 27 of 2006.' "The applicants pay the respondents' costs of the discontinuance."]