Federal Court of Australia

Sandow on behalf of the Bigambul People #5 v State of Queensland (No 2) [2026] FCA 727

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 85A(2) of the Native Title Act 1993 (Cth), the Applicant in the proceeding pay the costs of the Applicant in proceeding QUD290/2017 (Gamilaraay Applicant) of and incidental to the interlocutory application filed by the Gamilaraay Applicant on 1 July 2024 in QUD344/2024, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    In Mann on behalf of the Bigambul People #2 v State of Queensland [2023] FCA 450, I ordered that the Bigambul #2 Native Title Determination Application as described in proceeding QUD 281 of 2022 – Leah Mann & Ors on behalf of the Bigambul People #2 & State of Queensland & Ors (Bigambul #2 Claim) be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), or alternatively be summarily dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth). The interlocutory application for strike out in Mann was brought by the named Native Title applicant in proceeding QUD 290 of 2017 (Gamilaraay Applicant), in circumstances where the claim area in the Bigambul #2 Claim overlapped to the extent of 68.38 percent with an area of Native Title land claimed by the Gamilaraay People in QUD 290 of 2017 (Gamilaraay Claim). I also ordered costs against the applicant in that judgment.

2    The Bigambul People subsequently filed an application in QUD 344 of 2024 (Bigambul #5 Claim). The Bigambul #5 Claim overlapped to the extent of 28.5 percent with the Gamilaraay Claim.

3    On 1 July 2024 the Gamilaraay Applicant filed an interlocutory application in QUD 344 of 2024 in which, materially, it sought the following orders:

2. That

a. this proceeding be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), or alternatively, summarily dismissed pursuant to rule 26.01(1)(d) of the Federal Court Rules 2011 (Cth), or 31A of the Federal Court of Australia Act 1976 (Cth);

b. pursuant to rule 2.28(1)(c)(i) and/or rule 2.28(1)(c)(ii) of the Federal Court Rules 2011 (Cth), the Form 1 filed on 27 June 2024 in the proceeding be removed from the Court file; and

c. the Applicant in the proceeding pay the costs of the Applicant in proceeding QUD290/2017.

4    On 6 February 2025 I ordered that the Bigambul #5 Claim be struck out pursuant to s 84C of the Native Title Act, or alternatively, summarily dismissed pursuant to r 26.01(1)(d) of the Federal Court Rules, or s 31A of the Federal Court of Australia Act 1976 (Cth), and that costs be reserved: Sandow on behalf of the Bigambul People #5 v State of Queensland [2025] FCA 53 (primary judgment).

5    The Bigambul #5 Applicant sought leave to appeal the primary judgment. The application for leave to appeal, and the appeal, were heard by the Full Court of the Federal Court. On 13 October 2025 the Full Court dismissed the appeal against the primary judgment: Sandow v State Minister for the State of Queensland [2025] FCAFC 140; (2025) 313 FCR 295.

6    At [70] of the primary judgment I noted that the Gamilaraay Applicant sought its costs in respect of the interlocutory strike out proceedings in QUD 344 of 2024. Plainly, s 85A(1) of the Native Title Act provides for a default position that, unless the Federal Court orders otherwise, each party to a proceeding bears his or her own costs. However, s 85A(2) relevantly provides:

(2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

7    On 11 November 2025 I made the following timetabling orders:

1. By 4pm on 2 December 2025, the Gamilaraay Applicant file and serve material on which it relies on the issue of costs in the proceeding, and accompanying written submissions, such submissions to be of no greater than 10 pages in length.

2. By 4pm on 9 December 2025, any party seeking an oral hearing on the issue of costs advise the Court Registry of same, failing such advice the issue of costs be determined on the papers.

3. By 4pm on 23 December 2025, any party wishing to respond to the material and submissions filed in accordance with Order 1 of these Orders, file and serve material on which it relies in response, and accompanying written submissions, such submissions to be of no greater than 10 pages in length.

4. By 4pm on 20 January 2026, the Gamilaraay Applicant file and serve any submissions in reply to submissions filed in accordance with Order 2 of these Orders, such submissions to be of no greater than 5 pages in length.

SUBMISSIONS OF THE PARTIES

8    In summary the Gamilaraay Applicant submitted as follows:

    This case is to be distinguished from those in which a Native Title claimant, whether represented or not, has made an unwise, ill-founded or even opportunistic application for the first time in what may be considered a daunting jurisdiction. The Bigambul People are experienced in Native Title litigation, having secured two positive determinations of Native Title.

    The case is also to be distinguished from cases where lack of authorisation may be cured either by addressing the particular defect in authorisation or even seeking authorisation afresh for the impugned proceeding.

    The Bigambul #5 Applicant must be taken to have been informed by the earlier decision in Mann in instituting a further identical, and extremely late, claim over an area scheduled for inclusion in the Gamilaraay People’s positive determination of Native Title by consent.

    There was no satisfactory explanation for the delay in bringing the further claim in the circumstances or new evidence adduced for explaining the delay.

    The relevant question is whether the conduct of the Bigambul #5 Applicant was oppressive to the Gamilaraay Applicant.

    That the order has not to date been enforced is a matter for the Gamilaraay Applicant and/or Queensland South Native Title Services and not a reason not to make a costs order. There is no merit in any submission that any earlier costs order has not been enforced (or is unlikely to be enforced), and in any event, there is no evidence to support the assertion that the costs order in Mann is unlikely to be enforced.

9    The Bigambul #5 Applicant submitted in summary:

    The Court has made a previous order against individual Bigambul applicants in Mann following a strike out application by the Gamilaraay Applicant in the Bigambul #2 claim. This order was made over the objections of the individuals concerned that they had limited personal financial means to meet such an order. At the date of the filing of submissions by the Bigambul #5 Applicant there had been no steps to enforce the costs order in Mann. The individual Bigambul #5 applicants are in no different position, and the Court should not make orders against individual applicants in circumstances where the party seeking costs has no intention to enforce the orders.

    There would be little point in making costs orders against the individual Bigambul applicants as a deterrent because, following the instructions of the Bigambul #5 Applicant not to seek re-authorisation, the Gamilaraay People now have a consent determination, and their claim is fully resolved.

    My findings in the primary judgment were not sufficient to warrant a departure from the starting point of no order as to costs. The Full Court made no order as to costs in the appeal, and no costs were sought by the Gamilaraay Applicant in the appeal.

    The Gamilaraay Applicant has been publicly funded and does not stand to be financially disadvantaged if no costs order is made.

    The Bigambul #5 Applicant was acting in a representative capacity in bringing the Bigambul #5 Claim to seek recognition of the collective Native Title rights of the Bigambul People.

    If a costs order is enforced, it will be a significant personal financial burden to the Bigambul #5 applicants, or they will suffer the stress and anxiety of having an order hanging over their heads “like the sword of the Sword of Damocles”.

CONSIDERATION

10    In respect of the operation of s 85A of the Native Title Act, the Full Court observed in summary in Cheedy on behalf of Yindjibarndi People v State of Western Australia (No 2) [2011] FCAFC 163; 199 FCR 23 at [9] that:

(1)    section 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the Federal Court of Australia Act;

(2)    the “unreasonable conduct” of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1);

(3)    whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; and

(4)    it is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants.

11    I note the observations of Longbottom J in Fagan on behalf of the Wadawurrung Native Title Claim v State of Victoria (No 2) [2026] FCA 11 at [15]:

Whether conduct can be said to be “unreasonable” depends upon the circumstances of each case: Akiba at [149]. Conduct has been held to be unreasonable within the meaning of s 85A of the Act, where: the party “could not have considered it had reasonable grounds for believing it could successfully resist” a claim (Oil Basins Limited v Watson [2014] FCAFC 154 at [155] and [160] to [163] (Siopsis, McKerracher and Barker JJ)); it was “objectively unreasonable” to bring and maintain the application (Malone on behalf of the Western Kangolou People v State of Queensland (No. 5) [2025] FCA 353 at [21] (O’Bryan J); and where the conduct of an unsuccessful party in a proceeding constitutes an abuse of process (Mann on behalf of the Bigambul People #2 v State of Queensland (No. 2) [2023] FCA 1598 at [22] (Collier ACJ)).

12    Notwithstanding the general rule pursuant to s 85A(1) of the Native Title Act that in Native Title proceedings parties bear their own costs, the present question is whether I am satisfied pursuant to s 85A(2) that the Bigambul #5 Applicant has, by any unreasonable act or omission, caused the Gamilaraay Applicant to incur costs such that the Court should exercise its discretion to order the costs of the Gamilaraay Applicant to be paid by the Bigambul #5 Applicant. Specifically, the “unreasonable act or omission” of the Bigambul #5 Applicant was, in the submission of the Gamilaraay Applicant, to file the Native Title application in QUD 344 of 2024, which overlapped an existing Native Title claim of the Gamilaraay Applicant which was proceeding to consent determination, such that the Gamilaraay Applicant was required to seek relief pursuant to s 84C of the Native Title Act (or alternatively, equivalent provisions in the Federal Court of Australia Act and the Federal Court Rules) in order to progress the existing Gamilaraay Claim.

13    In my view the Gamilaraay Applicant is entitled to its costs of and incidental to the interlocutory application filed on 1 July 2024 in QUD 344 of 2024.

14    First, in the primary judgment I found that the Bigambul #5 Application should be struck out on the basis that the relevant Form 1 was not filed on behalf of the Bigambul claim group, and the Bigambul #5 Claim was not properly authorised. However perhaps more importantly for present purposes I also found as follows:

65 The Bigambul #5 Claim was filed on 27 June 2024, three days after Registrar Parkyn ordered that the Gamilaraay Claim, which the Bigambul #5 Claim overlapped, be listed for consent determination on 19 July 2024. The consent determination of the Gamilaraay Claim, for a second time, did not proceed because of a claim of the Bigambul People, filed less than a month before the Gamilaraay Claim was listed for consent determination.

66 The Bigambul People have long known about the existence of the Gamilaraay Claim and that it was ready to progress to consent determination. The Bigambul #5 Applicant had ample time to file a further claim following the delivery of judgment in Mann in May 2023, which struck out the Bigambul #2 Claim, and after judgment was delivered in Hippi in April 2024 where the Bigambul People were unsuccessful in their application for joinder to the Gamilaraay Claim.

67 No satisfactory explanation has been given by the Bigambul #5 Applicant for the delay in filing the Bigambul #5 Claim. No new evidence of substance explaining the delay has been adduced. Contrary to the submissions of the Bigambul #5 Applicant, I am not persuaded that the delay in filing the Bigambul #5 Claim can be explained by reference to new expert evidence of Dr Phillip Clarke as annexed to the Bigambul #5 Form 1. The Bigambul #5 Applicant has long had access to expert material it claims to be supportive of its native title claim, including the expert material of Mr Daniel Leo and Dr Anna Kenny referable to the Bigambul #2 Claim.

68 Further, I am not satisfied that the Bigambul #5 Application is other than an abuse of process merely because the Bigambul #5 Applicant has apparently been prepared to engage in discussions with the Gamilaraay Applicant not to oppose part of the Gamilaraay Claim. It is well known that the division of a native title claim, resulting in a s 87A Application, is time and resource consuming, and would inevitably result in a delay in achieving any consent determination for the Gamilaraay People.

69 I find that the Bigambul #5 Claim is an abuse of process.

15    The act by the Bigambul #5 Applicant of filing, at such a critically late stage in the Gamilaraay Applicant’s Native Title claim process, a Native Title claim which was an abuse of process of the Court, was, in my view, unquestionably an unreasonable act. The fact that the Bigambul #5 Claim appeared in many ways to replicate the flaws found in Mann to be fatal to the Bigambul #2 Claim, and to result in – again – an eleventh-hour derailment of the Gamilaraay claim, further illuminates the unreasonableness of the act of the Bigambul #5 Applicant. The act caused considerable delay to progress of the Gamilaraay claim, and at the very least caused the Gamilaraay People to incur costs to set aside the Bigambul #5 Claim to permit the Gamilaraay Claim to proceed to final determination.

16    Second, the arguments of the Bigambul #5 Applicant against an order being made against them pursuant to s 85A(2) of the Native Title Act are of little merit. In summary:

    Notwithstanding the submission of the Bigambul #5 Applicant that they are of limited financial means, I note that the Bigambul #5 Applicant was legally represented in the proceeding QUD 344 of 2024, both at first instance and on appeal. There was no suggestion that that legal representation was pro bono. It is reasonable for me to infer that the members of the Bigambul #5 Applicant were sufficiently solvent at least to procure legal representation, including to the appeal level in these proceedings.

    There is no evidence of any substance before the Court to support a finding that the Gamilaraay Applicant has no intention of enforcing an existing costs order in their favour, such that the Court should exercise its discretion not to make such an order in the present proceeding. Rather, the affidavit of the lawyer for the Gamilaraay Applicant, Ms Zuzana Russellova, dated 20 January 2026, indicates the contrary – namely that Gamilaraay Applicant intends to enforce the costs order already made in their favour in Mann.

    In any event, to paraphrase an observation of Jagot J in Booth on behalf of the Kungardutyi Punthamara People v State of Queensland (No 2) [2017] FCA 844 at [6], if the Gamilaraay Applicant has, to date, chosen not to enforce an existing costs order in their favour against the Bigambul #2 Applicant, that is a matter for the Gamilaraay Applicant. It is not a reason for this Court to exercise its discretion not to make a costs order in favour of the Gamilaraay Applicant in the present proceeding.

    That the Bigambul #5 Applicant claimed it sought recognition of the claimed Native Title rights of the Bigambul People does not detract from the fact that the Bigambul #5 Applicant brought a fatally flawed claim, shortly before the Gamilaraay claim was to proceed to a consent determination, where the Native Title rights of the Gamilaraay People had been accepted by all respondents to their claim. If, as the Bigambul #5 Applicant contends, there are “strained relations” between the Bigambul and Gamilaraay People, the obvious response is that this can only be the result of the unreasonable conduct of the Bigambul #5 Applicant.

    That the Gamilaraay Applicant did not seek its costs of the appeal brought by the Bigambul #5 Applicant is, in my view, irrelevant to the issue presently before me.

    The fact that the Gamilaraay Applicant was represented at all relevant times by Queensland South Native Title Services is irrelevant to the question of whether costs should be awarded in its favour pursuant to s 85A(2) of the Native Title Act: Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635 per Mansfield J at [14]-[26].

    The fact that the Native Title rights of the Gamilaraay People have now been recognised by Court order does not mean that all issues are resolved, such that the Gamilaraay People should not pursue the costs which were incurred as a result of the unreasonable act of the Bigambul #5 Applicant. It further does not mean that the Court should refuse to exercise its discretion in favour of the Gamilaraay Applicant for the purposes of s 85A(2) of the Native Title Act.

17    The appropriate costs order is in the terms sought by the Gamilaraay Applicant in its interlocutory application filed on 1 July 2024.

Associate:

Dated:    11 June 2026