Federal Court of Australia

Majak v State of Victoria (No 2) [2026] FCA 1634

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s applications for different costs orders in action SAD 35 of 2026 and SAD 49 of 2026 are refused.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 23 July 2026, the Court summarily dismissed proceedings SAD 35 of 2026 and SAD 49 of 2026 brought by Ms Majak against the State of Victoria and the Commonwealth of Australia respectively: Majak v State of Victoria [2026] FCA 956. This judgment should be read in conjunction with those reasons.

2    In Majak v State of Victoria, I found that the applicant had no prospect of successfully prosecuting the proceedings because they were obviously untenable: Federal Court of Australia Act 1976 (Cth) s 31A(2). I also found that the proceedings did not reveal a reasonable cause of action and were frivolous or vexatious and/or an abuse of process: Federal Court Rules 2011 (Cth) r 26.1(a)-(d).

3    It was for those reasons that I ordered the applicant to pay the costs of the State of Victoria and the Commonwealth, of and incidental to the proceedings, on an indemnity basis.

4    The applicant was granted leave in both proceedings to file and serve written submissions setting out why a different costs order should be made. The applicant filed written submissions in both proceedings on 28 July 2026. The respondents in both proceedings declined the opportunity to provide submissions on that question

5    On 27 and 28 August 2026, the applicant contacted my Chambers by email seeking that the question of whether a different costs order should be made be deferred until after the determination of her applications for an extension of time and leave to appeal from these proceedings: SAD 184 of 2026 and SAD 185 of 2026.

6    Whereas I refused to defer the question of whether a different costs order should be made, nonetheless I granted the applicant leave to file further limited supplementary submissions so that she might be able to address her concerns. The applicant filed those further submissions in both proceedings on 10 September 2026.

7    For the following reasons the application by Ms Majak for a different costs order in both actions is refused.

Principles

8    The principles relating to an award of costs are well-settled.

9    The Court has a broad discretion to order costs under s 43 of the FCA Act which must be exercised judicially taking account of the relevant facts and circumstances of the litigation: Bertram v Naudi (Costs) [2024] FCA 1444 at [12].

10    The ordinary rule is that a successful party is entitled to an order for its costs on a party and party basis only: FCR 40.01. However, the ordinary rule may be departed from so as to award costs on an indemnity basis where the justice of the particular case so requires or where there is some special or unusual feature of the case justifying the departure: Bertram at [13]-[14] and the cases cited therein.

11    The purpose of an award of indemnity costs was explained by Gray J (with whom Carr and Goldberg JJ agreed) in Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 at [20]:

[20]    Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.

12    Whilst the categories of cases in which an award for indemnity costs may be made are not closed, circumstances in which such an order may be made include:

(a)    where an applicant, properly advised, should have known they had no chance of success: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR 397 at 401; De Alwis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 77 at [7];

(b)    where the moving party persists in what should on proper consideration be seen to be a hopeless case: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 at 303;

(c)    where an applicant’s case was “always clearly foredoomed to fail” and they ought to have known this to be so: Smolle v Australian and New Zealand Banking Group Ltd (No 2) [2007] FCA 1967 at [25];

(d)    where an application is wholly untenable and misconceived: Henke v Carter [2002] FCA 492 at [22]; and

(e)    where an applicant persists in prosecuting a proceeding without regard to the evidentiary difficulties in the case: Yates Property Corporation Pty Ltd v Boland (No 2) [1997] FCA 760; (1997) 147 ALR 685 at 693.

See also Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) [2021] FCA 246 at [6]-[12] (Wigney J).

13    There are special considerations applying to orders for indemnity costs against self-represented litigants.

14    In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13], Hodgson CJ in Eq said:

[13] … I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

15    In Bhagat v Global Custodians Ltd [2002] FCA 223 at [57]-[60], the Full Court of this Court (O’Loughlin, Whitlam and Marshall JJ) observed that Hodgson CJ in Eq did not say that litigants in person always escape the consequence of indemnity costs, and declined to interfere with the decision of the trial judge to order indemnity costs against the self-represented litigant.

16    In Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [26], Kenny J said:

[26]    … From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians and Ogawa v The University of Melbourne (No 2).

(Footnotes omitted.)

Applicant’s submissions and consideration

17    Ms Majak opposes the order for indemnity costs in proceedings SAD 35 of 2026 and SAD 49 of 2026 and submits that no orders as to costs should be made, or alternatively, any costs awarded to the respondents in the proceedings should be on a party and party basis.

SAD 35 of 2026

18    Ms Majak relies on Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225: at 233 (Sheppard J) and Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 (Jagot, Yates and Murphy JJ): at [3]-[5] and submits there must be some special or unusual feature justifying a departure from the ordinary rule as to costs. She observes from the authorities that indemnity costs orders are ordinarily reserved for proceedings that are knowingly hopeless, constitute an abuse of process, are brought for an improper purpose, or involve dishonesty or litigation misconduct, and contends that that is not this case.

19    Ms Majak contends further that her case is distinguishable from Melbourne City Investments because in that case, “the Full Court did not infer indemnity costs merely from failure. It identified particular unreasonable conduct causing wasted expenditure, including persistence in an untenable contention and its abandonment only at the hearing after the respondents had incurred costs answering it.” She submits that no comparable conduct has been identified in this proceeding, nor has there been any contention that she knew, or ought to have known, that her case was hopeless or that there has been any wasted expenditure of the kind identified in Melbourne City Investments.

20    Ms Majak submits that “the ordinary exercise of the costs discretion should [not] proceed without regard to the character of the proceeding, the issues presented for determination, and the manner in which the litigation was conducted” and that “the proceeding was not framed as an attempt merely to relitigate factual disputes previously determined elsewhere”, but was instead directed to various constitutional questions set out in her application.

21    On that point, Ms Majak notes the State of Victoria sought summary dismissal principally upon its submissions that the proceeding was an abuse of process and that the State of Victoria was not a party to the contempt proceedings. She notes that the Court accepted those submissions in concluding the proceeding had no prospect of success. The complaint being that those submissions did not go to the determination of any of the constitutional questions raised by her originating application.

22    As to the substance of her application, Ms Majak submits that she was seeking the Court’s determination of anterior constitutional questions relating to the State of Victoria being a party to the contempt proceedings, which she submits were commenced in the name of “The King (on the application of the Prothonotary of the Supreme Court of Victoria)” following a judicial direction that the Prothonotary prosecute the contempt. She says that her case sought identification of the public authority exercising the prosecutorial function.

23    Ms Majak submits further that, because she served a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), and prepared an application under s 40 of the Judiciary Act to have the proceeding removed to the High Court, she genuinely advanced constitutional questions and did not commence the proceeding dishonestly, recklessly or for an improper purpose. She also submits that, because the reasons in Majak v State of Victoria did not address the constitutional questions posed in her originating application, the proceeding cannot be characterised as knowingly hopeless or as an abuse of process so as to warrant an indemnity costs order.

24    In her supplementary submissions, Ms Majak raises the issue of her proposed appeal in proceeding SAD 184 of 2026. She submits that the proposed appeal “challenges whether the case advanced in this proceeding was determined and whether an earlier judgment had determined the particular jurisdictional question relied upon”. She says that those matters distinguish the summary dismissal from any unreasonable persistence on her part in a hopeless contention.

25    Ms Majak submits further that an award of indemnity costs is inappropriate in circumstances where she complied with all of the Court’s directions and where no finding was made of dishonesty, improper purpose or litigation misconduct.

26    I do not accept Ms Majak’s submissions.

27    In the reasons published when Ms Majak’s claim in this action was summarily dismissed, I observed that:

(a)    Ms Majak had commenced proceedings in the Family Court of Australia (as it was then known) in 2015 against her former de facto partner, and in the Supreme Court of Victoria against her former de facto partner and a Mr Piotr Cwalina;

(b)    Final property orders were made in the Family Court in December 2019 with an appeal from those orders dismissed by the Full Court of the Family Court; and

(c)    On 5 August 2022, the Family Court found that Ms Majak had frequently instituted vexatious proceedings in Australian courts and made a vexatious proceedings order pursuant to s 102QB of the Family Law Act 1975 (Cth) prohibiting Ms Majak from instituting proceedings in any court with jurisdiction under the Family Law Act against her former de facto partner without leave.

28    I continued by setting out the history of the proceedings both in the Family Court and the Supreme Court of Victoria: at [6]-[21] and [23]. Save as set out above, I do not repeat it. See also Cwalina v State of Victoria [2026] FCA 1249 at [13]-[23] which also provides a description of some of the background to these proceedings.

29    I found that the proceedings brought by Ms Majak against the State of Victoria had no prospect of success for the reasons set out: at [29]-[39]. Those reasons included that the proceedings brought by Ms Majak were an abuse of process.

30    Given the history of the matters to which these proceedings related, which extended as far back as 2015, that the proceedings had no prospects of success, and that they were an abuse of process, I formed the view that an order for indemnity costs was appropriate.

31    Nothing Ms Majak has put before me persuades me that a different order for costs should be made in this proceeding.

SAD 49 of 2026

32    Ms Majak submits that prior to instituting proceedings against the Commonwealth, she attempted to obtain information as to the details and legal basis of the travel restriction placed upon her through various communications with Commonwealth Government authorities. She submits that because this did not resolve the matter, the proceeding “represented the only practical means available [for her] to obtain judicial clarification of the legal foundation for the restriction”.

33    Ms Majak complains that the reasons in Majak v State of Victoria did not address the pleadings in her statement of claim dated 23 April 2026 and, again, disposed of the proceeding on the grounds of her bankruptcy and that it was an abuse of process. She submits that the existence of her pleaded claims demonstrates that the proceeding was commenced for the determination of substantive legal rights, rather than for an improper or collateral purpose. She submits further that because the proceeding raised a “genuine controversy concerning the legal basis upon which Commonwealth officers had prevented [her] from leaving Australia” it was not an attempt to re-litigate issues finally determined in previous proceedings.

34    Ms Majak submits that she filed and served a notice of a constitutional matter under s 78B of the Judiciary Act and prepared an application under s 40 of the Judiciary Act to have the proceeding removed to the High Court. She contends that, although those steps do not establish that her arguments were correct, they demonstrated that the proceeding raised constitutional questions through recognised legal procedures rather than for any improper or collateral purpose.

35    In her supplementary submissions, Ms Majak refers to the letter sent to her by the Australian Government Solicitor dated 17 April 2026 which is annexed to the affidavit of Coenraad Henry van der Westhuizen affirmed on 30 April 2026. That letter explained to Ms Majak the deficiencies with her application, that the Commonwealth would not seek an order as to costs if she were to discontinue the application by 4:30pm on Friday 24 April 2026, and that the Commonwealth would otherwise seek summary judgment with costs. Ms Majak submits that that letter did not foreshadow an application for indemnity costs or identify conduct said to warrant a deviation from the ordinary rule as to costs.

36    Ms Majak submits further that her continuation of the proceeding following receipt of the 17 April 2026 letter and up until the summary dismissal hearing on 5 May 2026 was not persistence in the face of any contention known, or ought to be known, to be hopeless. She also notes that whereas the Commonwealth did not file a summary dismissal application, supporting submissions or a timetable requiring her to answer any dispositive grounds, nonetheless an application for summary dismissal was heard on 5 May 2026.

37    Ms Majak advances similar submissions as to Melbourne City Investments as she does against the State of Victoria in SAD 35 of 2026 and, again, submits that because there was no finding that she has acted dishonestly or engaged in litigation misconduct, an order of indemnity costs is inappropriate.

38    In the proceedings against the Commonwealth, Ms Majak sought orders in relation to a travel restriction imposed upon her by reason of her being made bankrupt and further relief related to the Family Court proceedings and her bankruptcy.

39    As to the travel restriction, Ms Majak had received an explanation from the Commonwealth through its solicitors as to why she had been prevented from leaving Australia, explaining that the travel restriction was imposed pursuant to s 272(1)(c) of the Bankruptcy Act 1966 (Cth).

40    The case put by Ms Majak in her submissions on the summary dismissal application was that she was not an undischarged bankrupt. That is clearly wrong.

41    In summarily dismissing Ms Majak’s claim against the Commonwealth, I accepted the Commonwealth’s submissions that the proceedings were an abuse of process because Ms Majak sought to re-agitate the issue of her bankruptcy which had already been litigated and determined. That had the consequence that Ms Majak had no standing to bring the proceedings because her property has vested in the trustee of the bankruptcy.

42    Given the proceedings had no prospects of success and were an abuse of process in view of the prior litigation and determination of Ms Majak’s bankruptcy, I formed the view that an order for indemnity costs was appropriate.

43    Nothing Ms Majak has put before me persuades me that a different order for costs should be made in this proceeding.

Conclusion

44    Ms Majak’s applications for different costs orders in action SAD 35 of 2026 and SAD 49 of 2026 are refused.

Associate:

Dated:    29 October 2026#