Bathurst Regional Council v Natural Resources Access Regulator (No 2)

The matter before the Court was an appeal by Bathurst Regional Council against an order of the Natural Resources Access Regulator (NRAR) relating to a native title claim. The dispute centred on the interpretation of the Native Title Act 1993 (Cth) and the extent to which the NRAR could grant an access determination to a third party over land subject to a native title claim. The Court of Appeal, consisting of Mansfield, Beach and Edelman JJA, was tasked with determining whether the primary judge had exercised his discretion to order costs appropriately.

The primary legal issue before the Court was whether the primary judge had erred in declining to exercise his discretion to order that costs follow the event. The appeal hinged on whether the NRAR's proceedings, which were brought by a public authority on a matter of public importance, should be treated differently in terms of cost orders. The Court needed to consider the general rule that costs follow the event and the circumstances in which a court may exercise its discretion to order otherwise. It was also necessary to assess the public interest in transparency of regulation and the principle that neither party was wholly successful in the proceedings.

The Court held that the primary judge had exercised his discretion appropriately and had considered all relevant factors. The Court acknowledged that proceedings brought by public authorities on matters of public importance could be material considerations in the exercise of discretion. However, in this case, the Court found that the public interest in transparency of regulation and the fact that neither party was wholly successful outweighed any other considerations. The Court concluded that the primary judge had not erred in declining to make a costs order and affirmed the decision below. No order as to costs was made.