Case: McKenzie v State of South Australia [2006] FCA 891
Outcome: cited
In McKenzie v State of South Australia [2006] FCA 891 at [8] I referred to the case law on s 85A. Here I need only repeat what I said there: "The most authoritative statement of the matters which should inform the exercise of discretion in awarding costs in light of this section was given by Lee J in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305, in comments later endorsed by the Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 137. His Honour noted first, that s 85A(1) is intended to remove the expectation that costs will follow the event but that despite this, the Court retains its discretion as to costs unlimited by subrule (1); secondly the 'unreasonable conduct' of the parties is not a jurisdictional fact which preconditions the exercise of the discretion and, conversely, s 85A(2) will not control or limit the discretion in subrule (1); thirdly, whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear their own costs." 61 I do not go so far as to say that, where a strike out motion is brought, a native title claimant is entitled as of course to have that motion determined without fear of an adverse costs order: cf McKenzie [2006] FCA 891 where costs orders were made on an application to discontinue under the shadow of an apprehended strike out motion. Each case must depend on its own circumstances. In the present matter I attribute particular importance to Mr Reid's being an unrepresented person who received spasmodic legal and other assistance which clearly was unequal to the challenge presented by the strike out motion; the motion was brought within a very short period after the filing of the application and the matter was dealt with expeditiously because of its potential to impact on the overlap proceedings. Mr Reid did not capitulate in the face of the flaws indicated to him by the State. He clearly erred in so doing. On balance, though, I do not consider that he so unreasonably caused the State and the ALRM to incur costs in connection with the conduct of the proceeding, or otherwise so acted as to warrant an adverse costs order. 62 Accordingly, I will make no order as to costs. 63 I would add this. Both the State and the ALRM in their submissions sought a costs order, inter alia, for the purpose of providing a clear message to any further potential native title claimants that it is necessary to ensure that matters of form and procedure are strictly to be adhered to when lodging claimant applications. As I earlier indicated, I do not regard deterrence to be a permissible reason for a costs order. This said, the fact and circumstances of this successful strike out motion ought be of no little interest to persons who have made, or who are contemplating making, claimant applications in relation to claim areas that overlap that in the Kokatha overlap proceedings. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 21 September 2007 Counsel for the Applicant: Mr E Fardone Solicitor for the Applicant: Fardone &amp; Co Counsel for the 1 st Respondent Group: Mr C Kourakis QC and Mr S McCall Solicitor for the 1 st Respondent Group: Crown Solicitor's Office Counsel for the 2 nd Respondent Group: Mr M Steele Solicitor for the 2 nd Respondent Group: Aboriginal Legal Rights Movement Inc. Date of Hearing: 17 August 2007 Date of Judgment: 21 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1479.html