Background
The Gamilaraay People hold a long-running native title claim over land in Queensland (QUD 290/2017). By mid-2024 that claim had the consent of all respondents and was listed for a consent determination on 19 July 2024. Three days after the registrar scheduled that hearing, on 27 June 2024, the Bigambul People filed a fresh native title application — designated Bigambul #5 — that overlapped 28.5 percent of the Gamilaraay claim area. This was not the first such conflict: in 2023, Justice Collier had struck out an earlier Bigambul application (Bigambul #2) for overlapping the Gamilaraay claim by 68.38 percent, finding it an abuse of process and awarding costs against the Bigambul applicants.
On 1 July 2024 the Gamilaraay applicants moved to strike out Bigambul #5. On 6 February 2025, Justice Collier granted that application, finding that the Bigambul #5 claim form had not been filed on behalf of the Bigambul claim group, the claim lacked proper authorisation, and — critically — the filing was an abuse of process: it was made without satisfactory explanation for the delay, replicated defects fatal to Bigambul #2, and again derailed the Gamilaraay people’s imminent consent determination (Sandow v State of Queensland [2025] FCA 53). The Bigambul #5 applicants sought leave to appeal; the Full Federal Court dismissed the appeal on 13 October 2025 (Sandow v State Minister for the State of Queensland [2025] FCAFC 140; (2025) 313 FCR 295). Costs of the strike-out interlocutory application were reserved pending further submissions.
The Gamilaraay applicants then sought a costs order under s 85A(2) of the Native Title Act 1993 (Cth). The Bigambul #5 applicants opposed the order, arguing that the prior costs order from Bigambul #2 had never been enforced, that the individual applicants were of limited financial means, that the Gamilaraay applicants were publicly funded and would suffer no real detriment without a costs order, and that the Gamilaraay claim had now been successfully determined in any event. The matter was determined on the papers.
The Court’s Holding
Justice Collier ordered that the Bigambul #5 applicants pay the Gamilaraay applicants’ costs of and incidental to the interlocutory strike-out application filed on 1 July 2024, to be taxed if not agreed. The Court held that the default rule in s 85A(1) of the Native Title Act — that each party bears its own costs — was displaced by s 85A(2) because the Bigambul #5 applicants had engaged in unreasonable conduct that caused the Gamilaraay applicants to incur costs. The act of filing a fatally flawed claim three days before the Gamilaraay consent determination was listed, after an almost identical claim had already been struck out as an abuse of process in 2023, and without any satisfactory explanation for the delay, was “unquestionably an unreasonable act.”
The Court rejected each of the Bigambul #5 applicants’ arguments against an adverse costs order. The fact that the prior Bigambul #2 costs order had not yet been enforced was irrelevant — that was a matter for the Gamilaraay applicants, not a reason for the Court to withhold a further costs order. The Bigambul #5 applicants’ claimed financial hardship carried little weight given that they had retained legal representation through both the primary proceeding and a Full Court appeal without any suggestion that representation was pro bono. The public funding of the Gamilaraay applicants through Queensland South Native Title Services was equally irrelevant to the costs discretion, consistent with Far West Coast Native Title Claim v State of South Australia (No 8) [2014] FCA 635. Nor did the subsequent consent determination of the Gamilaraay claim render the costs question moot.
The Court emphasised that costs in native title proceedings are not to be used as punishment or deterrence, but that s 85A(2) is engaged where a party’s unreasonable conduct has actually caused another party to incur costs. Here, the filing of Bigambul #5 caused real costs — requiring the Gamilaraay applicants to bring and pursue an interlocutory strike-out application — and constituted conduct that met the unreasonableness threshold established in the case law, including where conduct amounts to an abuse of process.
Key Takeaways
- Under s 85A(2) of the Native Title Act 1993, a court may depart from the default “own costs” rule where a party’s unreasonable act or omission caused another party to incur costs; filing a fatally flawed, authorisation-defective native title claim three days before a rival group’s consent determination — and after a substantially identical prior claim had already been struck out — satisfies that standard.
- A native title claim filed as an abuse of process, replicating previously identified fatal defects and lacking any satisfactory explanation for delay, constitutes “unreasonable conduct” warranting an adverse costs order even in the sensitive context of indigenous land rights litigation.
- A respondent’s claimed financial hardship is undermined where that party obtained paid legal representation through both trial and appellate proceedings; and the non-enforcement of a prior costs order by the successful party is irrelevant to whether a court should make a further costs order in a new proceeding.
- The fact that a publicly funded body (here, Queensland South Native Title Services) represents the party seeking costs does not, as a matter of law, preclude or diminish a costs award in its favour under s 85A(2).
Why It Matters
This decision reinforces that the protective “own costs” default in native title proceedings is not a shield for serial, opportunistic claimants who file overlapping applications to disrupt a rival group’s imminent consent determination. Courts will look to the full history of the parties’ conduct — including prior strike-outs and unexplained delays — when assessing whether s 85A(2) is triggered. The ruling sends a clear signal that native title applicants who re-litigate previously condemned claims at a critically late stage risk personal costs liability, regardless of their representative capacity or the broader political and cultural dimensions of the dispute.
The case also clarifies the interaction between the s 85A(2) unreasonableness discretion and various practical objections to costs orders: non-enforcement of prior orders, public funding of the successful party, subsequent resolution of the underlying claim, and the stress of a judgment debt are all addressed and firmly set aside as insufficient reasons to withhold costs where the unreasonableness threshold has been met. Practitioners advising native title claimants should note that authorisation defects combined with late, overlapping filings create substantial costs exposure even within a jurisdiction ordinarily resistant to adverse costs orders.