Kemppi v Adani Mining Pty Ltd (No 3) - [2018] FCA 40

FEDERAL COURT OF AUSTRALIA
Kemppi v Adani Mining Pty Ltd (No 3) [2018] FCA 40

File number: QUD 194 of 2017

Judge: REEVES J

Date of judgment: 2 February 2018

Catchwords:
PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain first respondent from seeking and State of Queensland from making a grant under a registered Indigenous Land Use Agreement (ILUA) – where substantive proceeding seeks to challenge validity and certification of ILUA – where ILUA has the effect of extinguishing native title over a portion of a registered native title claim area – where applicants are members of registered claimant group – strength of probability of success at trial – whether balance of convenience test favours injunction being granted – where applicants claimed the portion of land subject to extinguishment under the ILUA contained culturally significant sites – where applicants did not provide an undertaking as to damages

Held: application dismissed

Legislation:
Native Title Act 1993 (Cth)

Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)

Aboriginal Cultural Heritage Act 2003 (Qld)

Cases cited:
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Burragubba v State of Queensland [2016] FCA 984

Burragubba v State of Queensland (2017) 346 ALR 414; [2017] FCAFC 133

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

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

Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59

Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255

Date of hearing: 30 January 2018

Registry: Queensland

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 74

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 E Goodwin and Mr A Stumer

Solicitor for the First Respondent: Herbert Smith Freehills

Counsel for the Second Respondent: Ms E Longbottom

Solicitor for the Second Respondent: Queensland South Native Title Services

Counsel for the Third Respondent: Mr G del Villar and Ms F Nagorcka

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
(ACN 114 581 556)

Second Respondent

STATE OF QUEENSLAND (and another named in the Schedule)

Third Respondent

JUDGE:

REEVES J

DATE OF ORDER:

2 FEBRUARY 2018

THE COURT ORDERS THAT:
1.The application filed 1 December 2017 be dismissed.

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

REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION

Ms Delia Kemppi and her fellow applicants (who I will refer to jointly in these reasons as “Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 40
Decision Date: 2 February 2018

CaseChat Overview and Summary

The matter before the court was an application by Ms Kemppi for an interlocutory injunction to restrain Adani Mining Pty Ltd from seeking and the State of Queensland from making a grant under a registered Indigenous Land Use Agreement (ILUA). The substantive proceeding sought to challenge the validity and certification of the ILUA, which had the effect of extinguishing native title over a portion of a registered native title claim area. Ms Kemppi, a member of the registered claimant group, claimed that the portion of land subject to extinguishment contained culturally significant sites. The court was required to determine whether the balance of convenience test favoured granting the injunction.

The court assessed the strength of the probability of Ms Kemppi's success at trial and considered the competing prejudices involved. The court found that the probability of success was weak, and the prejudices, though different in character, did not tip the balance in favour of granting the injunction. The court also noted that Ms Kemppi had refused to provide the usual undertaking as to damages in support of her application. The court concluded that the balance of convenience and justice did not favour the grant of an injunction.

The court dismissed the interlocutory application filed on 1 December 2017. The orders were that the application be dismissed, and entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application filed 1 December 2017 be 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

As it turns out in this case, I have effectively taken account of the impact on the absent third party to the ILUA, namely the Wangan and Jagalingou native title claim group, in my assessment of the prejudice Ms Kemppi is likely to suffer if this injunction is not granted. I do not therefore consider it is a matter that I should also take into account separately.CONCLUSION Taking account of: my assessment of the lack of strength in the probability of Ms Kemppi’s ultimate success in this proceeding; the competing prejudices I have identified above which, while fundamentally different in character, do not, in my view, tip the balance one way or the other; and, most importantly, Ms Kemppi’s refusal to provide the usual undertaking as to damages in support of her application; I consider the balance of convenience and justice in this application does not favour the grant of an injunction to Ms Kemppi to preserve the status quo. For these reasons, I will order that the interlocutory application filed on 1 December 2017 be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 194 of 2017
Judge:	REEVES J
Date of judgment:	2 February 2018
Catchwords:	PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain first respondent from seeking and State of Queensland from making a grant under a registered Indigenous Land Use Agreement (ILUA) – where substantive proceeding seeks to challenge validity and certification of ILUA – where ILUA has the effect of extinguishing native title over a portion of a registered native title claim area – where applicants are members of registered claimant group – strength of probability of success at trial – whether balance of convenience test favours injunction being granted – where applicants claimed the portion of land subject to extinguishment under the ILUA contained culturally significant sites – where applicants did not provide an undertaking as to damages Held: application dismissed
Legislation:	Native Title Act 1993 (Cth) Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) Aboriginal Cultural Heritage Act 2003 (Qld)
Cases cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Burragubba v State of Queensland [2016] FCA 984 Burragubba v State of Queensland (2017) 346 ALR 414; [2017] FCAFC 133 Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255
Date of hearing:	30 January 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	74
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 E Goodwin and Mr A Stumer
Solicitor for the First Respondent:	Herbert Smith Freehills
Counsel for the Second Respondent:	Ms E Longbottom
Solicitor for the Second Respondent:	Queensland South Native Title Services
Counsel for the Third Respondent:	Mr G del Villar and Ms F Nagorcka
Solicitor for the Third Respondent:	Crown Law
Counsel for the Fourth Respondent:	The Fourth Respondent filed a Submitting Notice