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
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:
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…
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- Case
- [2018] FCA 2012
- Decision Date
CaseChat Overview and Summary
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.