Stock v Native Title Registrar (No 2) - [2014] FCA 202

FEDERAL COURT OF AUSTRALIA
Stock v Native Title Registrar (No 2) [2014] FCA 202

Citation: Stock v Native Title Registrar (No 2) [2014] FCA 202

Parties: DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER & BILLY CADIGAN IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 6280 OF 1998) v THE NATIVE TITLE REGISTRAR & HER DELEGATE, STEPHEN RIVERS-MCCOMBS and BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, AILSA ROY AND STEPHEN PETERSON IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT IN THE WUNNA NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 22 OF 2012)

File number: WAD 154 of 2012

Judge: BARKER J

Date of judgment: 12 March 2014

Catchwords: COSTS – application for judicial review of Native Title Registrar’s decision unsuccessful – whether costs order should be made in favour of second respondents – whether s 85A Native Title Act 1993 (Cth) applies such that each party must bear his or her own costs – judicial review proceeding is not a proceeding that relevantly “relates to native title” for the purposes of costs order – factors relevant to Court’s discretion to award costs – whether public interest warrants departure from ordinary rule as to costs – whether costs should be fixed or taxed

Legislation:
Federal Court of Australia Act 1976 (Cth) s 43, s 43(2)
Native Title Act 1993 (Cth) s 61, s 80, s 81, s 84B, s 85, s 85A, s 85A(1), s 85A(2), s 169

Federal Court Rules 2011 (Cth) R 40.02(b)

Cases cited: Carey v Freehills [2014] FCA 132
Cheedy v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139
Northern Territory of Australia v Doepel (No 2) [2004] FCA 46
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Stock v Native Title Registrar [2013] FCA 1290

Date of hearing: Determined on the papers

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 37

Counsel for the Applicant: Ms C Tan

Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation

Counsel for the Second Respondent: Written submissions were filed by the second respondent

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 154 of 2012

BETWEEN:
DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER & BILLY CADIGAN IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 6280 OF 1998)
Applicants

AND:
THE NATIVE TITLE REGISTRAR & HER DELEGATE, STEPHEN RIVERS-MCCOMBS
First Respondent

BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, AILSA ROY AND STEPHEN PETERSON IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT IN THE WUNNA NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 22 OF 2012)
Second Respondents

JUDGE:

BARKER J

DATE OF ORDER:

12 MARCH 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicants pay the costs of the second respondents fixed in the sum of $5,445.

Note:Entry of orders is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 202
Decision Date

CaseChat Overview and Summary

Stock v Native Title Registrar (No 2) presents a case involving the applicants, the Wunna Nyiyaparli party, and the respondents, the Native Title Registrar, concerning a dispute over the costs associated with a judicial review application. The applicants, the Wunna Nyiyaparli party, sought to challenge the decision of the Native Title Registrar, leading to a legal battle over the allocation of costs following the outcome of the review.

The primary legal issues that the court had to address were the apportionment of costs and the inclusion of specific fees incurred by the applicants in their cost recovery from the respondents. In particular, the court had to determine whether the $7,260 fee of Mr Chandler should be included in the costs recoverable and, if so, whether this sum should be reduced by a certain percentage given the partial success of the applicants' judicial review application.

In reaching its decision, the court held that the $7,260 fee of Mr Chandler should indeed be included in the costs recoverable. However, the court also considered the need for an apportionment of these costs due to the partial success of the applicants' application. As a result, the court decided to reduce the sum by 25%, or $1,815, to reflect the unsuccessful issues argued by the applicants. This reasoning resulted in a final sum of $5,445 payable by the applicants to the respondents.

Concluding the matter, the court made an order that the applicants, the Wunna Nyiyaparli party, shall pay the costs of the second respondents, the Native Title Registrar, in the fixed sum of $5,445. This order reflects the court's determination on the appropriate allocation of costs following the judicial review application, balancing the need for cost recovery with the partial success of the applicants' arguments.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the result, I think the costs recoverable should include the $7,260 fee of Mr Chandler. I would then reduce that sum by 25% or $1,815 by way of apportionment of the issues that were unsuccessfully argued on the judicial review application by the Wunna Nyiyaparli party. That produces a sum payable of $5,445.CONCLUSION AND ORDER I would make the following order:1.The applicants pay the costs of the second respondents fixed in the sum of $5,445.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Stock v Native Title Registrar (No 2) [2014] FCA 202
Parties:	DAVID STOCK, GORDON YULINE, RAYMOND DRAGE, VICTOR PARKER & BILLY CADIGAN IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT FOR THE NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 6280 OF 1998) v THE NATIVE TITLE REGISTRAR & HER DELEGATE, STEPHEN RIVERS-MCCOMBS and BETTY PETERSON, ERNEST WILLIAM COFFIN, MARJORIE DRAGE, AILSA ROY AND STEPHEN PETERSON IN THEIR CAPACITY AS THE REGISTERED NATIVE TITLE CLAIMANT IN THE WUNNA NYIYAPARLI PEOPLE'S NATIVE TITLE CLAIM (WAD 22 OF 2012)
File number:	WAD 154 of 2012
Judge:	BARKER J
Date of judgment:	12 March 2014
Catchwords:	COSTS – application for judicial review of Native Title Registrar’s decision unsuccessful – whether costs order should be made in favour of second respondents – whether s 85A Native Title Act 1993 (Cth) applies such that each party must bear his or her own costs – judicial review proceeding is not a proceeding that relevantly “relates to native title” for the purposes of costs order – factors relevant to Court’s discretion to award costs – whether public interest warrants departure from ordinary rule as to costs – whether costs should be fixed or taxed
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43, s 43(2) Native Title Act 1993 (Cth) s 61, s 80, s 81, s 84B, s 85, s 85A, s 85A(1), s 85A(2), s 169 Federal Court Rules 2011 (Cth) R 40.02(b)
Cases cited:	Carey v Freehills [2014] FCA 132 Cheedy v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23 Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 139 Northern Territory of Australia v Doepel (No 2) [2004] FCA 46 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Stock v Native Title Registrar [2013] FCA 1290
Date of hearing:	Determined on the papers
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicant:	Ms C Tan
Solicitor for the Applicant:	Yamatji Marlpa Aboriginal Corporation
Counsel for the Second Respondent:	Written submissions were filed by the second respondent

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 154 of 2012

JUDGE:	BARKER J
DATE OF ORDER:	12 MARCH 2014
WHERE MADE:	PERTH