FEDERAL COURT OF AUSTRALIA
Kemppi v Adani Mining Pty Ltd [2019] FCAFC 94
File number(s): QUD 638 of 2018 Judge(s): RARES, ROBERTSON AND PERRY JJ Date of judgment: 24 May 2019 Catchwords: APPEAL AND NEW TRIAL – application to amend notice of appeal and fourth further amened statement of claim to raise new issue following recent Full Court decision – where appellants seek to withdraw admission and raise new factual issues – exercise of discretion by appellate court – fairness to the parties – where further evidence required – where circumstances indistinguishable from Coulton v Holcombe (1986) 162 CLR 1 Legislation: Native Title Act 1993 (Cth) s 203BE Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Date of hearing: 24 May 2019 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 9 Counsel for the Appellants: Mr S Keim SC Solicitor for the Appellants: Just Us Law Counsel for the First Respondent: Mr T Sullivan QC with Mr E Goodwin Solicitor for the First Respondent: Herbert Smith Freehills Counsel for the Second Respondent: Mr J Horton QC with Ms E Longbottom Solicitor for the Second Respondent: Queensland South Native Title Services Ltd Counsel for the Third Respondent: Mr G del Villar with Ms F Nagorcka Solicitor for the Third Respondent: Crown Law Counsel for the Fourth Respondent: The fourth respondent filed a submitting notice Counsel for the Intervener: Ms R Webb QC with Ms C Taggart Solicitor for the Intervener: Australian Government Solicitor ORDERS
QUD 638 of 2018 BETWEEN: DELIA KEMPPI
First Appellant
LESTER BARNARD
Second Appellant
ADRIAN BURRAGUBBA (and another named in the Schedule)
Third Appellant
AND: ADANI MINING PTY LTD
First Respondent
QUEENSLAND SOUTH NATIVE TITLE SERVICES LTD
Second Respondent
STATE OF QUEENSLAND (and another named in the Schedule)
Third Respondent
COMMONWEALTH OF AUSTRALIA
Intervener
JUDGES:
RARES, ROBERTSON AND PERRY JJ
DATE OF ORDER:
24 MAY 2019
THE COURT ORDERS THAT:
1.The interlocutory application made on 23 May 2019 be dismissed.
2.The appellants pay the respondents’ costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)THE COURT:
The appellants applied yesterday, by an interlocutory application, to amend their notice of appeal, and as a consequence, the fourth further amended statement of claim in the proceeding below, in light of the Full Court’s decision, given on Monday this week, 20 May 2019, in Northern Land Council v Quall [2019] FCAFC 77. The appeal is set down for hearing on Monday, 27 May 2019. We have heard full argument on the application for amendment.
In the end, senior counsel for the appellants, when asked how he could distinguish their position from that in Coulton v Holcombe (1986) 162 CLR 1, put forward the following submissions (to which we…
Keep reading for free
Create a free CaseChat account to read Kemppi v Adani Mining Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] FCAFC 94
- Decision Date
CaseChat Overview and Summary
The court considered the public importance of the issues and the impact on third parties, but ultimately focused on the procedural conduct of the parties. The court highlighted that the parties were bound by how they presented their case at the trial. The appellants' request to recant from an admission made in their fourth further amended statement of claim, concerning the authority of the chief executive officer of Queensland South to give the certificate under section 203BE(5) of the Act, was particularly significant. The court found the application indistinguishable from the circumstances in Coulton v Holcombe (1986) 162 CLR 1, where it was held that parties are bound by their conduct at trial, and it would not be fair to subject respondents to a wider trial of a larger issue at the appeal stage.
Given the principles of fairness and the lack of explanation for the appellants' change in stance, the court refused the application to amend the notice of appeal and the fourth further amended statement of claim. The court ordered that the interlocutory application be dismissed, and the appellants pay the respondents’ costs of the interlocutory application.
Orders
Orders of the court
1. The interlocutory application made on 23 May 2019 be dismissed.
2. The appellants pay the respondents’ costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Thirdly, the appellants argued that if, notwithstanding the decision in Quall, Queensland South had conferred authority on its chief executive officer to give the certificate, and the authority were treated as validly conferred in the appeal, the consequence could, or would, possibly impact on third parties, although the appellants were unable to elaborate in any great detail about what that impact might be. Consideration The foregoing summary is not to gainsay the possibility of the future application of Quall to a similar situation as occurred here concerning the giving of a certificate by the chief executive officer of a company that is a representative body under the Act. We note particularly the limited time available to the parties within which to assimilate and understand the implications that Quall might have for them. However, importantly, the appellants gave no explanation as to why they had not run this point at the trial having regard to their express admission of the chief executive officer’s authority to give the certificate. That explanation may be simply that the appellants never thought of the point. But that is not a reason that counts in their favour. In our opinion, the circumstances of the present application are indistinguishable from those in Coulton 162 CLR at 6-8, 10-11 per Gibbs CJ, Wilson, Brennan and Dawson JJ. There, the New South Wales Court of Appeal had allowed the then appellants (who were the first respondents in the High Court) to amend their grounds of appeal to raise a ground asserting invalidity of a notice given under statute in the Government Gazette relating to a water catchment area that affected all lawful users of the water supply and the public generally. The amending parties said that they had overlooked the validity point in conducting the case at the trial. As Gibbs CJ, Wilson, Brennan and Dawson JJ explained, the new issue raised matters of public law that involved not only the parties to the proceeding but the wider community, landholders, the Executive Government and the Parliament. Their Honours held that it “is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial” and that an appellate court’s powers with respect to amendment “are ordinarily to be exercised within the general framework of the issues so determined and not otherwise”. They said that if the new point had been raised in the court below, and there were any possibility that evidence could have been given to prevent it from succeeding, “this Court has firmly maintained the principle that the point cannot be taken afterwards”. They emphasised that a party is bound by the conduct of his, her or its case (Coulton 162 CLR at 7-8). There is no doubt that the issues which the appellants seek to agitate by the amendments are of public importance and affect the rights not only of the parties to the proceedings, but the public generally. That is because the registration of an ILUA after a certification by a representative body under the Act has an effect in rem on the land and waters the subject of the ILUA. But, in all of the circumstances, we have been unable to see any feature in this application for amendment distinguishing it from that in Coulton 162 CLR 1, namely, that the parties are bound by the way in which they conducted their case at the trial and it would not be in the interests of justice, or fair to the respondents to the appeal, to subject the respondents at this stage of the proceeding to what might be a wider trial of a larger issue. That factor is to be considered together with the lack of any explanation as to why, having accepted in their fourth further amended statement of claim, the authority of the chief executive officer to act on behalf of Queensland South in giving the certificate in issue under s 203BE(5), they can now seek to recant from that admission in this appeal: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 215 [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Conclusion