Corunna v South West Aboriginal Land and Sea Council (No 2)

In the Federal Court, Corunna sought a declaration that he was entitled to participate in the authorisation process in relation to proposed indigenous land use agreements. The South West Aboriginal Land and Sea Council (SWALSC) applied for summary dismissal of the proceeding, arguing that it was frivolous and vexatious. The Court was required to decide whether section 85A of the Native Title Act 1993 (Cth) applied to Corunna's application for a declaration, and if so, whether it was appropriate to exercise the discretion to award costs to SWALSC.

The Court found that section 85A of the Native Title Act applied to the proceeding, and that it was appropriate to exercise its discretion to award costs to SWALSC. The Court considered that the proceeding was vexatious and that it was in the public interest for Corunna to bear the costs of the proceeding. The Court held that the proceeding was frivolous because Corunna's claim was baseless, and that it was vexatious because it was brought in bad faith and was likely to cause unnecessary expense and delay. The Court also found that the proceeding was not in the public interest because it had the potential to undermine the integrity of the native title system.

The Court ordered that Corunna pay SWALSC's costs of the summary judgment application, to be taxed if not otherwise agreed. The Court noted that the usual order as to costs would apply, meaning that Corunna would be responsible for paying the costs of the proceeding, including the costs of the summary judgment application, unless the parties agreed otherwise. The Court also noted that the order for costs was not a final determination of the amount of costs to be paid, and that the parties would be required to negotiate a tax of the costs if they could not agree on the amount to be paid.