Kemppi v Adani Mining Pty Ltd (No 5)

FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd (No 5) [2018] FCA 2104

File number:

QUD 194 of 2017

Judge:

REEVES J

Date of judgment:

21 December 2018

Catchwords:

COSTS – application for costs – whether there should be a departure from the usual rule that costs ordinarily follow the event – whether there are circumstances justifying some other order – whether this proceeding was being pursued in the public interest – whether issues concerning the construction of the Native Title Act 1993 (Cth) justified departure from the usual rule

Legislation:

Federal Court of Australia Act 1976 (Cth)

Native Title Act 1993 (Cth)

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

Cases cited:

Burragubba v Queensland (2015) 236 FCR 160; [2015] FCA 1163

Burragubba v State of Queensland [2016] FCA 1525

Burragubba v State of Queensland (No 2) [2018] FCAFC 65

Kemppi v Adani Mining Pty Ltd [2018] FCA 1245

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

Date of last submissions:

14 September 2018

Registry:

Queensland

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Applicants:

Mr S Keim SC

Solicitor for the Applicants:

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 T Wishart of Queensland South Native Title Services

Counsel for the Third Respondent:

The Third Respondent did not apply for costs

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

STATE OF QUEENSLAND

Second Respondent

QUEENSLAND SOUTH NATIVE TITLE SERVICES (ACN 114 581 556) (and another named in the Schedule)

Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	21 DECEMBER 2018

THE COURT ORDERS THAT:

1.The applicants pay the first and second respondents’ costs of and incidental to this proceeding, to be taxed failing agreement

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

REASONS FOR JUDGMENT

REEVES J:

1. When judgment was delivered in this matter in August 2018 ([2018] FCA 1245) (the primary judgment), the applicants sought and obtained leave to file submissions on the question of costs. In those submissions, they contended that there should be no order as to costs in the proceeding for the following reasons. First, they relied upon the terms of the Declaration on the Rights of Indigenous Peoples (the Declaration) adopted by the General Assembly of the United Nations in September 2007 to contend that the extinguishment of native title that was at the centre of this proceeding was a matter of “singular public importance”. Secondly, they contended that, in pursuing this proceeding, they were not seeking to advance personal interests in the true sense, but they were…