Bropho v City of Perth (No 2) [2016] FCA 1168

Bropho v City of Perth (No 2) [2016] FCA 1168

Section 85A Native Title Act 1993 (Cth) does not apply to this originating application, which was not within the mandatory exclusive jurisdiction of the Federal Court for native title proceedings; therefore, the discretion in s 43(2) Federal Court of Australia Act 1976 (Cth) is not constrained by s 85A (or its 'spirit'), and there are no special circumstances such as genuine public interest or novel legal question that overcome the ordinary rule that costs follow the event. The applicant must pay the first respondent's costs.

Jurisdiction
Australia
Judgment Date
27 September 2016
Procedural Posture
Costs Application / Post Judgment (costs)
Outcome
Applicant to pay First Respondent's costs
Legal Topics
['costs Discretion' 'public Interest Litigation' 'interpretation of Native Title Act' 'application of Costs Provisions']
['native Title' 'civil Procedure'] ['costs Discretion' 'public Interest Litigation' 'interpretation of Native Title Act' 'application of Costs Provisions']

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Procedural Posture

Costs Application / Post Judgment (costs)

Legal Issues

  1. 1 ['Whether s 85A of the Native Title Act 1993 (Cth) applies to the originating application when exercising the discretion to award costs' "Whether the originating application was brought within the 'spirit' of the Native Title Act" 'Whether litigation claimed to be in the public interest should displace the ordinary costs rule' 'Whether there was a novel question of general importance justifying departure from ordinary costs']

Ratio Decidendi

Section 85A Native Title Act 1993 (Cth) does not apply to this originating application, which was not within the mandatory exclusive jurisdiction of the Federal Court for native title proceedings; therefore, the discretion in s 43(2) Federal Court of Australia Act 1976 (Cth) is not constrained by s 85A (or its 'spirit'), and there are no special circumstances such as genuine public interest or novel legal question that overcome the ordinary rule that costs follow the event. The applicant must pay the first respondent's costs.

Court Disposition

Applicant to pay First Respondent's costs

Orders

  • ["The applicant pay the costs of the first respondent of the originating application, including the costs of first respondent's interlocutory application dated 24 June 2016 and any reserved costs, to be assessed if not agreed."]