Kemppi v Adani Mining Pty Ltd

Link copied
Case Copied 20 min read

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd [2018] FCA 2012

Appeal from: Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245
File number: QUD 638 of 2018
Judge: ROBERTSON J
Date of judgment: 18 December 2018
Catchwords: PRACTICE AND PROCEDURE – appeal to Full Court – application by first respondent for security for costs of the appeal – where appellants impecunious – application of considerations relevant to the exercise of the power in s 56 of the Federal Court of Australia Act 1976 (Cth) – appropriate amount of security in relation to uncomplicated appeal – appropriate period within which security to be given
Legislation:

Federal Court of Australia Act 1976 (Cth) s 56

Native Title Act 1993 (Cth) s 203BE(5)

Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) r 7(2)(e)

Cases cited:

Domino’s Pizza Enterprises Ltd v Precision Tracking Pty Ltd (No 2) [2017] FCA 211

Equity Access Ltd v Westpac Banking Corporation  [1989] FCA 361; (1989) ATPR 40-972

Kemppi v Adani Mining Pty Ltd(No 4) [2018] FCA 1245; 360 ALR 697

Renshaw v Queensland Mining Corporation [2016] FCA 994

Date of hearing: 18 December 2018
Registry: Queensland
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 58
Counsel for the Appellants: Mr SJ Keim SC with Mr DM Yarrow
Solicitor for the Appellants: Just Us Lawyers
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: The Second Respondent did not appear
Counsel for the Third Respondent: Ms M Clarkson
Solicitor for the Third Respondent: Crown Law
Counsel for the Fourth Respondent: The Fourth Respondent filed a submitting appearance

ORDERS

QUD 638 of 2018
BETWEEN:

DELIA KEMPPI

First Appellant

LESTER BARNARD

Second Appellant

LYNDELL TURBANE (and others named in the Schedule)

Third Appellant

AND:

ADANI MINING PTY LTD (ACN 145 455 205)

First Respondent

QUEENSLAND SOUTH NATIVE TITLE SERVICES LTD (ACN 114 581 556)

Second Respondent

STATE OF QUEENSLAND (and another named in the Schedule)

Third Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

18 DECEMBER 2018

THE COURT ORDERS THAT:

1.By 4pm on 31 January 2019 the appellants give security for the first respondent’s costs of the appeal in the sum of $50,000 by:

(a)paying the money into Court; or

(b)by providing an irrevocable bank guarantee from an Australian trading bank in a form acceptable to the Registrar.

2.The first respondent notify Robertson J’s chambers if and when order 1 is satisfied.

3.In the event that order 1 is not complied with, the appeal be dismissed.

4.Costs reserved.

5.Liberty to apply on two days written notice.

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


REASONS FOR JUDGMENT

ROBERTSON J:

  1. These reasons concern an application for security for costs brought by the first respondent to an appeal, Adani Mining Pty Ltd.  The second respondent is the Queensland South Native Title Services…

CaseChat AU logo

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
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCA 2012
Decision Date

CaseChat Overview and Summary

The case of Kemppi v Adani Mining Pty Ltd involved an application by Adani Mining Pty Ltd for security for costs in relation to an appeal brought by the appellants, Kemppi. The Federal Court was required to determine the appropriate amount of security and the period within which it should be provided. The legal issues at hand centred on the exercise of the court's discretion under section 56 of the Federal Court of Australia Act 1976 (Cth) in relation to security for costs, particularly in the context of an appeal by impecunious appellants.

The Court considered the nature of the appeal, which was of a relatively uncomplicated nature, and the fact that it was an appeal rather than the original proceedings. The Court also took into account the fact that the appellants were impecunious and that there was an arguable case on appeal. The Court found that it was appropriate to order security for costs to mitigate the injustice that would arise if Adani were successful on the appeal and could not recover costs from the appellants. In determining the appropriate amount of security, the Court considered the estimates provided by the parties' experts, but ultimately found that they did not sufficiently take into account the limited nature of the appeal.

The Court ordered that the appellants provide security for the first respondent's costs of the appeal in the sum of $50,000 by a specified date. The Court also provided for the appeal to be dismissed if the security was not provided, and reserved costs. The Court granted liberty to apply on two days written notice.

Orders

Orders of the court

1. By 4pm on 31 January 2019 the appellants give security for the first respondent’s costs of the appeal in the sum of $50,000 by:

(a) paying the money into Court; or

(b) by providing an irrevocable bank guarantee from an Australian trading bank in a form acceptable to the Registrar.

2. The first respondent notify Robertson J’s chambers if and when order 1 is satisfied.

3. In the event that order 1 is not complied with, the appeal be dismissed.

4. Costs reserved.

5. Liberty to apply on two days written notice.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In the event the Court is minded to order the provision of security, the appellants submit that:(a)the order should provide for security in an amount significantly less than $128,522 to be provided by the Appellants by 4pm on 31 January 2019;(b)the order should provide for the proceeding to be stayed in default of provision of security, rather than dismissed.Consideration In my opinion there should be an order for security for costs. I accept that the courts are more willing to order security against impecunious individual plaintiffs on appeal than at first instance. In my opinion, an order is necessary to mitigate the injustice that would arise if Adani were successful on the appeal and could not recover costs from the appellants who chose to bring the appeal. I assume in this respect that costs would follow the event, that is, the outcome, of the appeal. Albeit at an impressionistic level, I regard the appeal as arguable. I note there is no application to strike out the appeal. I do not consider that the appellants have shown that a costs order in any amount would stifle the appeal. Although I accept that there is some interest beyond that of the appellants’ in the questions of statutory construction, that consideration is counterbalanced by the fact that this is an appeal. At this point any public interest nature of the matter does not outweigh the legitimate interests of the first respondent so far as costs are concerned. Relevant to my assessment of the appropriate amount is the nature of the appeal and any complexity of it. The original proceedings were in the nature of judicial review and the appeal proceedings should involve much less by way of legal services for which costs would be recoverable. In my opinion it is appropriate to take into account the appellants’ right of appeal but also that the first respondent Adani should be entitled to some protection in respect of costs if the appeal fails. In my opinion Adani’s estimate of $161,000 takes insufficient account of the fact that the original proceedings were judicial review proceedings and the appeal is also of that nature. I think Mr Hartwell’s estimate also suffers from that defect. That is, neither expert, nor the material on which they rely, takes sufficient account of the limited nature of the appeal. In departing from the experts’ estimates I see no analogy with Domino’s Pizza Enterprises Ltd v Precision Tracking Pty Ltd (No 2) [2017] FCA 211 to which I was taken by senior counsel for Adani. That was a complex patent case at first instance with a trial listed for a number of weeks and where the Court was of necessity much more reliant on the evidence as to prospective costs adduced by the parties’ experts. Of course the present estimate by Mr Bloom does not concern the level of legal services which Adani may choose to use. The present exercise concerns the appropriate proportion of the amount of Adani’s prospective legal costs which the appellants would be liable to pay if their appeal was unsuccessful and the appropriate level of protection to Adani.