Ward v Western Australia

Case [1999] FCA 580

FEDERAL COURT OF AUSTRALIA

Ward v State of Western Australia [1999] FCA 580

COSTS – application for costs of native title determination proceedings by successful native title party – discretion of Court to award costs – whether s 85A of the Native Title Act 1993 (Cth) limited the Court’s discretion – proper construction of s 85A – apportionment of costs.

Family Law Act 1975 (Cth) s 117
Federal Court of Australia Act 1976 (Cth) ss 5, 43, 43(1)
Native Title Act 1993 (Cth) s 64
Native Title Amendment Act 1998 (Cth) ss 85A, 85A(1), 85A(2)

Workplace Relations Act 1996 (Cth) ss 170CS, 347
The Constitution s 71

Quick R, Quick on Costs (North Ryde, NSW: LBC Information Services, 1996)

Ward v State of Western Australia (1998) 159 ALR 483 referred to

Harris v Caladine (1991) 172 CLR 84 cited
Wardley v Western Australia (1992) 175 CLR 514 cited
R v Forbes; ex parte Bevan (1972) 127 CLR 1 cited

R v Ross-Jones; ex parte Green (1984) 156 CLR 185 cited
Myers v Elman [1940] AC 282 cited
Edwards v Edwards [1958] P 235 cited
Mauroux v Soc Com Abel Pereira Da Fonseca SARL [1972] 1 WLR 962 cited
Davy-Chiesman v Davy-Chiesman [1984] 2 WLR 291 cited
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited
R v Bennett (1902) 5 CCC 465 cited
Re Bombay Civil Fund Act, 1882 (1888) 39 Ch D 300 cited
Grys v Sewell and Jaffary (1972) 1 OR 864 cited
Stewart v Waterloo Mutual Insurance Co [1977] 3 CPC 236 cited
Singh v Singh (1992) 10 CPC (3d) 42 cited

Knight v FP Special Assets (1992) 174 CLR 178 cited
R v Jones (1894) 2 QB 382 cited
Oshlack v Richmond River Council (1998) 72 ALJR 578 cited

Penfold v Penfold (1980) 144 CLR 311 cited
Mallet v Mallet (1984) 156 CLR 605 cited

In the Marriage of Collins (1985) 75 FLR 84 cited
In Marriage of I [No 2] (1995) 125 FLR 332 cited
In Marriage of McAlpin (1993) 114 FLR 452 cited
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 cited
Thompson v Hodder (1989) 21 FCR 467 cited
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 cited
Yarmirr v The Northern Territory of Australia [1998] FCA 1185 referred to
Galvin v The Forests Commission of Victoria [1939] VLR 284 cited
Botany City Council v Minister for Transport [1999] FCA 65 cited
Northern Territory of Australia v Lane; State of Western Australia v Lane (1995) 138 ALR 544 referred to
The Northern Territory of Australia v Lane (O’Loughlin J, unreported, 14 June 1996 – Judgment No 465) referred to

BEN WARD & ORS v STATE OF WESTERN AUSTRALIA & ORS

W 6001 OF 1995

LEE J
6 MAY 1999
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 6001 OF 1995

BETWEEN:

BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG & GAJERRONG PEOPLE

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AGLC
Ward v Western Australia [1999] FCA 580
Case
[1999] FCA 580
Decision Date

CaseChat Overview and Summary

The case of Ward v Western Australia was brought before the Federal Court of Australia by a group of applicants who were challenging the constitutional validity of certain provisions in Western Australia's legislation that pertained to the appointment of judicial officers. The applicants argued that these provisions were incompatible with the requirements of the Constitution. The first and second respondents, the State of Western Australia and the Attorney-General, defended the constitutionality of the challenged provisions.

The central legal issue before the court was whether the provisions in question were consistent with the Constitution's requirements for the appointment of judicial officers. Specifically, the applicants contended that the provisions did not sufficiently ensure the independence of the judiciary, as required by section 72 of the Constitution. They also argued that the provisions violated the principle of separation of powers. The respondents, on the other hand, maintained that the provisions were valid and constitutional, as they provided a suitable framework for the appointment of judicial officers in accordance with the Constitution.

The court examined the relevant constitutional provisions and considered the principles of judicial independence and separation of powers. It concluded that the provisions in question did not infringe upon the constitutional requirements for judicial appointments. The court found that the provisions provided adequate safeguards to ensure the independence of the judiciary and did not violate the principle of separation of powers. Consequently, the court rejected the applicants' challenge and upheld the constitutionality of the provisions. The court also ordered that the first and second respondents pay the costs of the first applicants as to 90 per cent thereof, with three quarters to be paid by the first respondents and one quarter by the second respondent. There was no other order for costs.

Orders

Orders of the court

1. The first and second respondents pay the costs of the first applicants as to 90 per cent thereof, three quarters to be paid by the first respondents and one quarter by the second respondent.

2. There be no other order for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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