Section 85A of the Native Title Act 1993 (Cth) does not limit the Court's costs discretion to cases of unreasonable conduct; it removes the expectation that costs follow the event but leaves the discretion at large. No threshold condition must be met before costs may be ordered. Public interest in the clarification of native title law is unlikely in itself to disentitle a successful applicant to costs where the Crown has opposed the claim. Subordinate respondents who derive their interests from the Crown and do not take an active role in defeating the claim should not ordinarily be liable for costs.
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