Kemppi v Adani Mining Pty Ltd

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd [2018] FCA 105

Appeal from:

Application for leave to appeal:  Kemppi v Adani Mining Pty Ltd (No 3) [2018] FCA 40

File number:

QUD 48 of 2018

Judge:

REEVES J

Date of judgment:

15 February 2018

Catchwords:

 PRACTICE AND PROCEDURE – application for leave to appeal a decision dismissing an application for an interlocutory injunction – whether leave to appeal should be granted – whether the decision is attended by sufficient doubt to warrant being reconsidered by a Full Court and whether substantial injustice would result if leave were refused – where the primary judgment involved a discretionary decision – whether any House v The King errors demonstrated – where there is a strong presumption in favour of decisions which contain a discretionary judgment

Held:  application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth)

Native Title Act 1993 (Cth)

Cases cited:

Burragubba v State of Queensland [2016] FCA 1525

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97

House v The King (1936) 55 CLR 499

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139

Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156

Date of hearing:

13 February 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Applicants:

Mr S Keim SC with Mr J Waters

Solicitor for the Applicants:

Just Us Lawyers

Counsel for the First Respondent:

Mr P O’Shea QC with Mr A Stumer

Solicitor for the First Respondent:

Herbert Smith Freehills

Solicitor for the Second Respondent:

Mr T Wishart of Queensland South Native Title Services

Solicitor for the Third Respondent:

Ms A Carseldine of Crown Law

Counsel for the Fourth Respondent:

The Fourth Respondent filed a Submitting Notice

ORDERS

QUD 48 of 2018

BETWEEN:

DELIA KEMPPI

First Applicant

LESTER BARNARD

Second Applicant

LYNDELL TURBANE (and others named in the Schedule)

Third Applicant

AND:

ADANI MINING PTY LTD (ACN 145 455 205)

First Respondent

QUEENSLAND SOUTH NATIVE TITLE SERVICES (ACN 114 581 556)

Second Respondent

STATE OF QUEENSLAND (and another named in the Schedule)

Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	15 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal filed on 5 February 2018 is dismissed.

2.The application to continue the order made on 18 December 2017 is dismissed and that order is hereby vacated.

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

REASONS FOR JUDGMENT

REEVES J:

1. Ms Kemppi has sought leave to appeal my judgment dismissing her application for an interlocutory injunction: [2018] FCA 40 (the primary judgment). For convenience, I will use the same terminology and abbreviations as I used in the primary judgment.

2. Leave is required under s…