Federal Court of Australia

Wanambi for himself and on behalf of the Marraŋu People of East Arnhem Land v Wanambi (No 2) [2026] FCA 926

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant pay the First Respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1    On 22 June 2026, orders were made dismissing this proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for the reasons given in Wanambi for himself and on behalf of the Marraŋu People of East Arnhem Land v Wanambi [2026] FCA 781. The following orders were also made in relation to costs:

(a)    within 7 days of the date of the order, the respondents file and serve any submission they wish to make with respect to the costs of the proceeding, limited to 3 pages;

(b)    within 14 days of the date of the order, the applicant file and serve any submission he wishes to make in response with respect to the costs of the proceeding, limited to 3 pages; and

(c)    subject to further order, the question of costs will be determined on the papers.

2    On 26 June 2026, the first respondent, Mary Wanambi, filed a submission seeking her costs. At the commencement of her submission, Mrs Wanambi stated that she sought costs on an indemnity basis. However, the form of order sought by her is an order for costs in standard form, with her submissions seeking the Court to “apply the usual rule that costs follow the event”. Further, Mrs Wanambi did not otherwise advance submissions in support of an order for indemnity costs. I have therefore treated her application as one for costs on a party/party basis.

3    The second respondent, the Northern Territory of Australia (Territory), did not file a submission seeking costs and I therefore assume that the Territory does not seek its costs.

4    The applicant, Gawura Wanambi, did not file any submission pursuant to the orders dated 22 June 2026. I therefore assume that the applicant does not oppose an order for costs in favour of Mrs Wanambi.

5    I consider it appropriate to make an order for costs in favour of Mrs Wanambi. Although Mrs Wanambi was unsuccessful on her principal argument that the application amounted to an abuse of process or the applicant was estopped from bringing the application by reason of the earlier decision of the Northern Territory Supreme Court in Wanambi v Wanambi [2025] NTSC 77, Mrs Wanambi joined with the Territory in arguing that the application did not disclose a reasonable cause of action and formally adopted the Territory’s arguments in that respect. In the result, Mrs Wanambi was successful in her defence of the application.

6    The applicable principles governing the award of costs are well known. The Court’s discretion to award costs under s 43 of the FCA Act is broad and is not bound by rigid or inflexible rules. The discretion must be exercised judicially, consistently with the purpose of the power and taking account of relevant facts and circumstances of the litigation. Usually, the discretion to award costs is exercised in favour of a successful party. However, a successful party may be deprived of a proportion of its costs, or even required to pay costs to the other party, if the successful party succeeded only upon a portion of its claim, or failed on issues that were not reasonably pursued, or where the result of the litigation might be described as mixed. Nevertheless, the mere fact that a court does not accept all of a successful party’s arguments does not make it appropriate to apportion costs on an issue by issue basis.

7    I accept Mrs Wanambi’s submission that she was successful in the proceeding. Although I did not accept all of the arguments advanced by Mrs Wanambi, I do not consider that she should be deprived of a proportion of her costs. The arguments on which Mrs Wanambi ultimately failed did not add significantly to the length or complexity of the issues to be determined. Accordingly, I consider that it is appropriate for Mrs Wanambi to be awarded her costs on a party/party basis.

Associate:

Dated:    15 July 2026