Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia (No 2) [2017] FCA 289

Peterson on behalf of the Wunna Nyiyaparli People v State of Western Australia (No 2) [2017] FCA 289

Although the Wunna Nyiyaparli Applicant had a weak claim that Maggie was a Nyiyaparli person, it was not appropriate to award costs on that basis because members of the Coffin family had previously been included in the Nyiyaparli claim group and it was not inherently unreasonable for former claim group members to dispute anthropological research and seek to establish continued membership. However, the Wunna Nyiyaparli Applicant acted unreasonably by failing to attend directions hearings and a case management conference, failing to comply with programming orders, ignoring correspondence, and failing to indicate whether it wished to participate in the separate question hearing. That...

Jurisdiction
Australia
Judgment Date
23 March 2017
Procedural Posture
Native Title Costs Application / Determined on the Papers After Judgment on a Separate Question
Outcome
Costs application allowed in part in WAD 22 of 2012; no order as to costs in WAD 6280 of 1998 and WAD 196 of 2013.
Legal Topics
['costs in Native Title Proceedings Under S 85 a of the Native Title Act 1993 (cth)' 'unreasonable Conduct Causing Costs' 'separate Question Hearing' 'failure to Comply With Programming Orders and Directions']
['native Title' 'costs'] ['costs in Native Title Proceedings Under S 85 a of the Native Title Act 1993 (cth)' 'unreasonable Conduct Causing Costs' 'separate Question Hearing' 'failure to Comply With Programming Orders and Directions']

Case Brief

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Procedural Posture

Native Title Costs Application / Determined on the Papers After Judgment on a Separate Question

Legal Issues

  1. 1 ['Whether the Wunna Nyiyaparli Applicant acted unreasonably by making and maintaining a claim that Maggie was a Nyiyaparli person when there was no reasonable basis for that claim.' 'Whether the Wunna Nyiyaparli Applicant acted unreasonably by maintaining the claim while not substantively participating in or prosecuting the separate question hearing.' 'What costs order, if any, should be made under s 85A of the Native Title Act 1993 (Cth).']

Ratio Decidendi

Although the Wunna Nyiyaparli Applicant had a weak claim that Maggie was a Nyiyaparli person, it was not appropriate to award costs on that basis because members of the Coffin family had previously been included in the Nyiyaparli claim group and it was not inherently unreasonable for former claim group members to dispute anthropological research and seek to establish continued membership. However, the Wunna Nyiyaparli Applicant acted unreasonably by failing to attend directions hearings and a case management conference, failing to comply with programming orders, ignoring correspondence, and failing to indicate whether it wished to participate in the separate question hearing. That...

Court Disposition

Costs application allowed in part in WAD 22 of 2012; no order as to costs in WAD 6280 of 1998 and WAD 196 of 2013.

Orders

  • ['The Wunna Nyiyaparli Applicant being Betty Peterson, Ernest William Coffin, Marjorie Drage, Ailsa Roy and Stephen Peterson is to pay the costs of the Nyiyaparli Applicant incurred from 24 March 2016 in relation to the hearing of the separate question which they would have not incurred had the Wunna Nyiyaparli...