Kemppi v Adani Mining Pty Ltd

[2017] FCA 715

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd [2017] FCA 715

File number:	QUD 194 of 2017
Judge:	REEVES J
Date of judgment:	6 June 2017
Date of hearing:	6 June 2017
Registry:	Queensland
Division:	General Division
National Practice Area:	Native Title
Category:	No Catchwords
Number of paragraphs:	9
Solicitor for the Applicants:	Mr C Hardie of Just Us Lawyers
Counsel for the First Respondent:	Mr AC Stumer
Solicitor for the First Respondent:	Herbert Smith Freehills
Solicitor for the Second Respondent:	Mr Z Casagrande of Queensland South Native Title Services
Counsel for the Third Respondent:	Mr G Del Villar
Solicitor for the Third Respondent:	Crown Law
Counsel for the Fourth Respondent:	The Fourth Respondent filed a submitting notice

ORDERS

QUD 194 of 2017

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 LTD

Second Respondent

STATE OF QUEENSLAND (and another named in the Schedule)

Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	6 JUNE 2017

THE COURT ORDERS THAT:

1.The first respondent is to bring in a set of orders reflecting the rulings made.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1. There are three issues that I have to address.  The first is whether or not expert evidence will serve any purpose at the trial of this proceeding based on the case that is presently pleaded.  The second is the sequence of the trial programming orders and the third is the date of trial.  I note that, while Mr Hardie, who acts for Ms Kemppi and four others (who I will together refer to hereafter as “Ms Kemppi”), the applicant, put forward a set of orders that included two orders related to discovery, he has since elected not to pursue those two orders and, instead, will seek whatever discovery he wishes to in accordance with the orders I made on 1 June 2017.

2. I also note that Mr Hardie has foreshadowed an application to amend the corrected amended statement of claim (ASC) filed on 4 May 2017 relying upon r 16.53 of the Federal Court Rules 2011 (Cth). However, that application is not presently before me. In those circumstances, I consider the only practical and efficient way to proceed is to deal with the issues I have to decide as the case is presently pleaded. I also note that the pleadings have closed.

3. On the first issue, Mr Hardie has conceded that the corrected ASC does not plead any issue which would make relevant expert evidence by a mining economist, directed to the benefits that are to be gained, or not gained, from the Indigenous Land Use Agreement (ILUA) which is at the heart of these proceedings.  I will, therefore, not allow for that expert evidence in the trial programming orders.

4. The second area of expert evidence the applicant claims is relevant is anthropological evidence directed to the membership of the Wangan and Jagalingou native title claim group.  Mr Hardie submitted that that expert evidence is relevant to the matters pleaded at [35] particular A, subparagraphs (c), (g) and (i) of the corrected ASC.  With respect to subparagraph (c), it alleges that “approximately [60 per cent] of those attending the 16 April authorisation [meeting] who asserted Wangan and Jagalingou identity were not recorded as having attended a previous meeting of the native title claim group for the Native Title Claim”.  That allegation depends upon who it was that attended the 16 April meeting by reference to the records of previous meetings of the native title claim group to demonstrate whether or not any persons attended those previous meetings.  No expert evidence is, therefore, required to establish that fact.

5. Subparagraph (g) alleges that “no step was taken by the [s]econd [r]espondent to identify whether the [n]on-group [c]laimant was a person who holds or may hold native title within the meaning of [s] 203BE(5)(a) of the Native Title Act 1993 (Cth)” (the NTA). That allegation depends upon proof of the steps taken by the second respondent directed to identifying that matter. It is not, therefore, a matter that requires expert evidence.

6. Subparagraph (i) alleges that, “in the circumstances, assessing the claim of the [n]on-group claimant to hold native title in the ILUA [a]rea against the existing anthropological and genealogical research in the possession of the [s]econd [r]espondent was a ‘reasonable effort’ within the meaning of [s] 203BE(5)(a) of the [NTA]”.  Again, that allegation depends upon the assessment made by the second respondent by reference to the research it had in its possession.  I do not, therefore, consider that external expert evidence is relevant to determining that fact.

7. For these reasons, I do not consider that the expert evidence identified by Mr Hardie is relevant to establishing the facts pleaded in any of the three subparagraphs he has relied upon.

8. The second issue relates to the sequence of the trial programming orders.  On that issue, as I have already noted, the pleadings have closed and there is no suggestion that those pleadings do not adequately identify the agreed and disputed issues of fact in this proceeding.  In those circumstances, I consider that the most appropriate sequence of events is, first, for there to be an exchange of the affidavits upon which the various parties intend to rely, and then a process of negotiation to endeavour to establish what further facts can be agreed and included in an agreed statement of facts.

9. The third issue is the date for trial.  I have been urged by Adani Mining Pty Ltd, the first respondent, to allocate a trial date now.  That is supported by the other respondents and not opposed by Ms Kemppi.  Accordingly, I will fix the matter for trial on 12 to 14 March 2018.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:        

Dated:        16 April 2019 

SCHEDULE OF PARTIES

QUD 194 of 2017
Applicants
Fourth Applicant:	ADRIAN BURRAGUBBA
Fifth Applicant:	LINDA BOBONGIE
Respondents
Fourth Respondent:	NATIVE TITLE REGISTRAR