Less than meets the eye: Federal Court’s costs orders in Munkara -v- Santos and their relevance for lawyers and expert witnesses

The following two paragraphs are the opening of an article ‘Less than meets the eye: Federal Court’s costs orders in Munkara -v- Santos and their relevance for lawyers and expert witnesses’ which is forthcoming in the Australian Law Journal (Volume 99, Pt 12, December 2025).

The Federal Court proceedings Simon Munkara & others v Santos NA Barossa Pty Ltd have received considerable public commentary. Some raising concerns about SLAPP (strategic litigation against public participation) while others see issues of ‘lawfare’ (using institutions and the legal system as mechanisms to damage opponents), and the proceedings have certainly reinforced stereotypes. This article suggests either framing (lawfare or SLAPP) would misunderstand these proceedings, the legal significance of which is more mundane. There are, of course, implications of Munkara -v- Santos outside future court proceedings but this article’s focus is relevance to litigation. To understand these proceedings and their implications requires some familiarity with the events and the Federal Court’s decisions and orders, particularly given some subpoenas and orders are not evident in the Court’s published reasons.

This article summarises the background to the case (section I), the decision, and subsequent events relating to that outcome (II). That is followed by a brief examination of the Federal Court’s usual approach to costs and subpoenas (III), relevant to compare and assess what happened here (IV). The article finishes (V) with some thoughts on the implications for future energy/resources litigation in Australia, and on activism and litigation. In summary, those implications are:
• for all parties (non-profit litigants, expert witnesses, regulators, companies, lawyers) – inadequate process in engaging with an Indigenous group may lead the Federal Court to discount evidence or submissions as providing credible or reliable understandings of Indigenous culture; and engaging with a recognised Indigenous body for an area is important in that process;

• for non-profit litigants - organisations which fundraise to support litigation may expect more applications for costs against them (in the same way as that is becoming more common for commercial litigation funders) but the presence of a costs indemnity (made known to the Court) should reduce the potential for subpoenas and costs arguments following failed litigation;
• for activists – publications and social media which express ambiguous connection to court proceedings can expose the authors to entanglement in those proceedings through subpoenas and potential costs applications;
• for non-profit lawyers – attention to conduct rules, and structures used to avoid conflict, can enable representation of a client not being prejudiced by the employing organisation’s broader functions and responsibilities; and
• for expert witnesses – if providing material which may be used in legal proceedings (even if not yet commenced), compliance with the Federal Court’s Expert Evidence Practice Note and Code of Conduct will minimise the potential for subpoenas and further litigation.