Kemppi v Adani Mining Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086

File number: QUD 194 of 2017
Judge: REEVES J
Date of judgment: 12 September 2017
Catchwords: PRACTICE AND PROCEDURE – application to amend statement of claim to add particulars and ground of review – whether the proposed amendments were futile – whether the proposed amendments plead an arguable cause of action – whether amendments are liable to be struck out – whether the amendments were relevant to the substantive claim – relevant considerations for certification of application to register indigenous land use agreements by representative body under s 203BE(5) of the Native Title Act 1993 (Cth)
Legislation:

Native Title Act 1993 (Cth)

Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26

Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Limited [2002] FCA 1568

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707

Buck v Bavone (1976) 135 CLR 110

Cameron v Board of Trustees of the State Public Sector Superannuation Scheme (2003) 130 FCR 122; [2003] FCAFC 214

Certain Lloyd’s Underwriters Subscribing to Contract No 1H00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56

Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) (2012) 250 CLR 503; [2012] HCA 55

Conway v Mercedes-Benz Australia/Pacific Pty Ltd ACN 004 411 410 [2010] FCA 72

Corporation for the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Dye v Commonwealth Securities Limited [2010] FCA 720

Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160

Fesl v Delegate of the Native Title Registrar (2008) 173 FCR 150; [2008] FCA 1469

Foley v Padley (1984) 154 CLR 349

Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 (No 5) [2010] FCA 313

Mentink v Minister for Justice [2016] FCA 432

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Immigration v Li (2013) 249 CLR 332

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

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Details
Case
[2017] FCA 1086
Decision Date

CaseChat Overview and Summary

In the case of Kemppi v Adani Mining Pty Ltd (No 2), the Federal Court of Australia considered an application to amend a statement of claim in relation to an Indigenous Land Use Agreement (ILUA). The plaintiff, Ms Kemppi, sought to amend her claim to include additional particulars and grounds for review, specifically to argue that the registration of the ILUA was unreasonable. The defendants, Adani Mining Pty Ltd and others, opposed the amendments on the grounds that they were futile and did not plead an arguable cause of action.

The court had to determine whether the proposed amendments were relevant to the substantive claim, whether they pleaded an arguable cause of action, and whether they were liable to be struck out as futile. The court considered the relevance of the amendments to the substantive claim and examined whether the proposed amendments met the criteria for being considered arguable. Additionally, the court considered the considerations relevant for certification of the application to register an ILUA by a representative body under section 203BE(5) of the Native Title Act 1993 (Cth).

The court found that the proposed amendments were relevant to the substantive claim and did plead an arguable cause of action. The court held that the amendments were not futile and should not be struck out. Consequently, the court granted Ms Kemppi leave to file a further amended statement of claim containing the allegations set out in the reasons, with the exception of one specific paragraph. The interlocutory application filed on 6 June 2017 was otherwise dismissed. The court's decision was based on a careful consideration of the legal principles and statutory requirements involved in the certification of ILUAs and the process for amending pleadings in federal court proceedings.

Orders

Orders of the court

1. The applicants be given leave to file a further amended statement of claim containing the allegations set out in paragraph [24] of the reasons, with the exception of paragraph (d).

2. The interlocutory application filed 6 June 2017 is otherwise dismissed.

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

For these reasons, I consider Ms Kemppi should be given leave to make the amendments sought by paragraphs (a) to (c) inclusive of the third part of her proposed amendments.CONCLUSION I will therefore order that Ms Kemppi be given leave to file a further amended statement of claim containing the allegations set out in [24] above, with the exception of paragraph (d). Otherwise, I will order that Ms Kemppi’s interlocutory application filed 6 June 2017 be dismissed.

Ratio Decidendi

Legal Principle Established

As these reasons record, the ILUA was authorised at a meeting of the “W&J People” held at Maryborough on Saturday, 16 April 2016 at which 340 members of the W & J People were said to have been present.THE DECLARATIONS SOUGHT Ms Kemppi commenced the present proceeding in April 2017. In her originating application, she sought three declarations in the following terms:1.A declaration that the agreement, referred to in the accompanying statement of claim at [15] as the “Project Agreement,” which was the subject of an application by the First Respondent to the Fourth Respondent for registration on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth) is not an “Indigenous land use agreement” within the meaning of s.24CA of the Native Title Act 1993 (Cth).2.A declaration that the certificate issued on behalf of the Second Respondent on 26 April 2016 under s.203BE(1)(b) of the Native Title Act 1993 (Cth), certifying the application by the First Respondent for the registration of the Project Agreement on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth), is void and of no effect.3.A declaration that the Fourth Respondent has no jurisdiction to consider the First Respondent’s application made on 27 April 2016 for the Project Agreement to be registered on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth). As a result of the passage through the Federal Parliament in June 2017 of a set of amendments to the NTA (Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)), Ms Kemppi does not now seek to pursue the declaration in paragraph 1 above. The corresponding parts of the FASC have therefore been deleted.THE UNREASONABLENESS ISSUE AS PLEADED The relevant declaration for the purposes of this interlocutory application is that in [2] above. It concerns the unreasonableness case Ms Kemppi has pleaded in her FASC. That case is pleaded in the following form. Commencing at [32] of the FASC, Ms Kemppi pleads that, on 20 April 2016, particular members of the W & J Applicant wrote to QSNTS and asked it to issue the Certificate. Then, at [33] of the FASC, Ms Kemppi alleges that Mr Smith issued the Certificate and, at [34] of the FASC, she alleges that the Certificate certified that QSNTS was of the opinion that:(a)all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the [ILUA] had been identified; and(b)all the persons so identified had authorised the making of the [ILUA]. At [35] of the FASC, Ms Kemppi then makes the critical allegations in her unreasonableness case in the following terms:The decision of the Second Respondent to issue the 203BE Certificate was legally unreasonable in that no reasonable representative body, aware of the circumstances of the [ILUA], could hold the opinion described in the 203BE Certificate. The particulars of this unreasonableness allegation are divided into two parts. Each part corresponds to one of the two opinions contained in the Certificate (see at [7] above). Those two opinions also correspond to the same opinions as pleaded at [34] of the FASC (see at [12] above). Accordingly, the first part of the particulars addresses the requirements of s 203BE(5)(a) above (the identification opinion) and the second part addresses the requirements of s 203BE(5)(b) above (the authorisation opinion). Those particulars are as follows:[Re s 203BE(5)(a)](a)the authorisation meeting for the [ILUA] was conducted on 16 April 2016 at the direction of particular Applicant Members, being Patrick Malone, Irene White, Priscilla Gyemore, Craig Dallen, Norman Johnson Jnr, Gwendoline Fisher, Les Tilley;(b)the anthropological and genealogical research of the Second Respondent, referred to in paragraph 1(a) of its reasons in the 203BE Certificate, was not made available to those conducting the 16 April authorisation for the [ILUA];(c)approximately 60% 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;(d)the meeting procedures adopted for the 16 April authorisation meeting did not test the assertion of Wangan and Jagalingou identity by determining whether a person identified as, and was accepted by, Wangan and Jagalingou People (in addition to mere descent from an identified apical Wangan and Jagalingou ancestor);(e)no resolution was made at the 16 April authorisation meeting confirming that the assertions of persons present about their Wangan and Jagalingou identity were accepted by the meeting, and so persons wishing to challenge those assertions were denied the opportunity to do so;(f)no resolution was made at the 16 April authorisation meeting confirming that the persons present who asserted Wangan and Jagalingou identity were members of the native title claim group for the Native Title Claim;(e)in the circumstances, a test of identification and acceptance of a person asserting Wangan and Jagalingou identity was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth);(f)the 16 April meeting was attended by a person who was not a member of the native title claim group for the Native Title Claim (the Non-group Claimant) who claimed to hold native title rights and interests in the area to which the [ILUA] applies (ILUA Area) who did not identify as a Wangan and Jagalingou person;(g)no step was taken by the Second Respondent to identify whether the Non-group Claimant 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);(h)if the claim of the Non-group Claimant to hold native title in the ILUA Area was reasonable, the attendance of only one such person making such a claim would put a reasonable representative body on notice that some reasonable efforts to identify persons who hold or may hold native title in the ILUA Area had not been taken;(i)in the circumstances, assessing the claim of the Non-group claimant to hold native title in the ILUA Area against the existing anthropological and genealogical research in the possession of the Second Respondent was a “reasonable effort” within the meaning of s.203BE(5)(a) of the Native Title Act 1993 (Cth).[Re s 203BE(5)(b)](a)the authorisation resolution of the 16 April authorisation meeting was conditional, in that it required all of the Applicant Members to sign the [ILUA];(b)without the signature of all of the Applicant Members, a condition of the authorisation was not satisfied;(c)in the circumstances, the Second Respondent knew or ought to have known that the condition of authorisation requiring all Applicant Members to sign the [ILUA] was not satisfied and therefore the persons identified as being those who hold or may hold native title had not “authorised the making” of the [ILUA] in the form it was presented in the 20 April 2016 letter of request from the particular Applicant Members.(Error in the numbering in original)