Corunna v South West Aboriginal Land and Sea Council (No 2) [2015] FCA 630

Corunna v South West Aboriginal Land and Sea Council (No 2) [2015] FCA 630

Section 85A of the Native Title Act 1993 (Cth) did not apply because, applying Lardil, Mr Corunna's application was not within the exclusive jurisdiction of the Court under s 81 but was more akin to a matter arising under the Act. The Court therefore exercised the costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth). Mr Corunna's proceeding was not properly characterised as public interest litigation warranting a departure from the usual order, was misconceived and premature, and caused SWALSC to mount a substantial response. There was no reasonable basis to deprive SWALSC of its entitlement to costs.

Jurisdiction
Australia
Judgment Date
24 June 2015
Procedural Posture
Costs Application Following Summary Dismissal in a Native Title Related Proceeding / Post Summary Dismissal Costs Determination
Outcome
The first respondent's costs application was granted.
Legal Topics
['application of S 85 a of the Native Title Act 1993 (cth)' 'costs Discretion Under S 43 of the Federal Court of Australia Act 1976 (cth)' 'summary Dismissal' 'indigenous Land Use Agreements' 'public Interest Litigation']
['native Title' 'federal Court Procedure' 'costs'] ['application of S 85 a of the Native Title Act 1993 (cth)' 'costs Discretion Under S 43 of the Federal Court of Australia Act 1976 (cth)' 'summary Dismissal' 'indigenous Land Use Agreements' 'public Interest Litigation']

Case Brief

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Procedural Posture

Costs Application Following Summary Dismissal in a Native Title Related Proceeding / Post Summary Dismissal Costs Determination

Legal Issues

  1. 1 ["Whether s 85A of the Native Title Act 1993 (Cth) applied to affect the Court's costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth)." "If s 85A applied, whether the applicant should pay some or all of the first respondent's costs." 'If s 85A did not apply, whether the first respondent was entitled to the costs order it sought.' 'Whether the proceeding had a public interest character or other circumstances justifying departure from the usual costs order.']

Ratio Decidendi

Section 85A of the Native Title Act 1993 (Cth) did not apply because, applying Lardil, Mr Corunna's application was not within the exclusive jurisdiction of the Court under s 81 but was more akin to a matter arising under the Act. The Court therefore exercised the costs discretion under s 43 of the Federal Court of Australia Act 1976 (Cth). Mr Corunna's proceeding was not properly characterised as public interest litigation warranting a departure from the usual order, was misconceived and premature, and caused SWALSC to mount a substantial response. There was no reasonable basis to deprive SWALSC of its entitlement to costs.

Court Disposition

The first respondent's costs application was granted.

Orders

  • ['The applicant pay the costs of the first respondent, to be taxed if not otherwise agreed.']