McGlade v Native Title Registrar (No 2) [2017] FCAFC 84

McGlade v Native Title Registrar (No 2) [2017] FCAFC 84

Section 85A of the Native Title Act 1993 (Cth) does not apply because these applications were not made under s 80 of the Act, but rather in the original jurisdiction of the High Court and remitted to the Federal Court. There is no sufficient reason to depart from the usual rule; therefore, the successful applicants are entitled to an order for costs, with one order to cover all four proceedings, proportioned as appropriate.

Parties
Applicant: Mingli Wanjurri McGlade (formerly Wanjurri-Nungala); Applicant: Mervyn Eades; Applicant: Naomi Smith; Applicant: Margaret Culbong; First Respondent: Native Title Registrar; Second Respondent: State of Western Australia (sued on its own behalf and as representing the government parties to the various Indigenous Land Use Agreements); Third Respondent: South West Aboriginal Land & Sea Council Aboriginal Corporation [ICN 3832] (and others named in the Schedule); Fourth Respondent: Glen Colbung (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement); Fifth Respondent: Hazel Brown; Fourth Respondent: Reg Yarran (Jnr) (sued on his behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Ballardong People Indigenous Land Use Agreement); Fourth Respondent: Nigel Wilkes (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Whadjuk People Indigenous Land Use Agreement); Fourth Respondent: Donald Hayward (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the South West Boorjarah #2 Indigenous Land Use Agreement)
Jurisdiction
Australia
Judgment Date
29 May 2017
Procedural Posture
Costs Application Following Substantive Relief / Post Judgment (costs Determination)
Outcome
Applicants entitled to costs. Minute of proposed costs orders to be filed reflecting the Court's reasons.
Legal Topics
Costs, Interpretation of S 85 a Native Title Act 1993 (cth), Federal Court Procedure
Native Title Civil Procedure Costs Interpretation of S 85 a Native Title Act 1993 (cth) Federal Court Procedure

Case Brief

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Parties

Mingli Wanjurri McGlade (formerly Wanjurri-Nungala)

Applicant

Mervyn Eades

Applicant

Naomi Smith

Applicant

Margaret Culbong

Applicant

Native Title Registrar

First Respondent

State of Western Australia (sued on its own behalf and as representing the government parties to the various Indigenous Land Use Agreements)

Second Respondent

South West Aboriginal Land & Sea Council Aboriginal Corporation [ICN 3832] (and others named in the Schedule)

Third Respondent

Glen Colbung (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement)

Fourth Respondent

Hazel Brown

Fifth Respondent

Reg Yarran (Jnr) (sued on his behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Ballardong People Indigenous Land Use Agreement)

Fourth Respondent

Nigel Wilkes (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the Whadjuk People Indigenous Land Use Agreement)

Fourth Respondent

Donald Hayward (sued on his own behalf and as representing the individuals named as 'representative parties' in, and who have signed, the South West Boorjarah #2 Indigenous Land Use Agreement)

Fourth Respondent

Procedural Posture

Costs Application Following Substantive Relief / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether applicants are entitled to costs following the grant of relief
  2. 2 Whether s 85A of the Native Title Act 1993 (Cth) applies to these proceedings
  3. 3 Whether costs should be apportioned between second and third respondents

Ratio Decidendi

Section 85A of the Native Title Act 1993 (Cth) does not apply because these applications were not made under s 80 of the Act, but rather in the original jurisdiction of the High Court and remitted to the Federal Court. There is no sufficient reason to depart from the usual rule; therefore, the successful applicants are entitled to an order for costs, with one order to cover all four proceedings, proportioned as appropriate.

Court Disposition

Applicants entitled to costs. Minute of proposed costs orders to be filed reflecting the Court's reasons.

Orders

  • The applicants in these four proceedings file a minute of proposed costs orders that reflect these reasons.