Kemppi v State of Queensland

[2017] FCA 902

FEDERAL COURT OF AUSTRALIA

Kemppi v State of Queensland [2017] FCA 902

Appeal from:

Application for leave to appeal: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373

File number(s):

QUD 219 of 2017

Judge(s):

JAGOT J

Date of judgment:

4 August 2017

Catchwords:

NATIVE TITLE – application for leave to appeal– whether decision of primary judge attended by sufficient doubt to warrant reconsideration – whether the applicant would suffer substantial injustice if leave to appeal were refused – leave refused

Legislation:

Native Title Act 1993 (Cth) s 66B

Cases cited:

Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373

House v R (1936) 55 CLR 499

Date of hearing:

4 August 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

18

Counsel for the Applicant:

Mr D Yarrow

Solicitor for the Applicant:

Just Us Lawyers

Counsel for the First Respondent:

Mr G Del Villar

Solicitor for the First Respondent:

Crown Law

Counsel for the Third Respondent:

Ms CJ Klease with Ms J Macdonald

Solicitor for the Third Respondent:

The Australian Government Solicitor

Counsel for Intervening Parties:

Mr KA Barlow QC

Solicitor for Intervening Parties:

King & Wood Mallesons

Counsel for Mr Tim Wishart

Mr AM Preston

Table of Corrections
17 August 2017	The citation Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 has been corrected in the ‘Appeal from’ and ‘Cases cited’ fields on the cover page and in [1] of the Reasons.
17 August 2017	In the appearances on the cover page, the Counsel for the Third Respondent and Counsel for the Intervening Parties have been corrected.

ORDERS

QUD 219 of 2017

BETWEEN:

DELIA KEMPPI

First Applicant

LESTER BARNARD

Second Applicant

GARY SALTNER FISHER (and others named in the Schedule)

Third Applicant

AND:

STATE OF QUEENSLAND

First Respondent

ADRIAN BURRAGUBBA & ORS ON BEHALF OF THE WANGAN AND JAGALINGOU PEOPLE

Second Respondent

COMMONWEALTH OF AUSTRALIA (and others named in the Schedule)

Third Respondent

PRISCILLA GYEMORE (and others named in the Schedule)

First Intervener

JUDGE:	JAGOT J
DATE OF ORDER:	4 AUGUST 2017

THE COURT ORDERS THAT:

1.The amended application for leave to appeal filed 9 May 20147 be dismissed.

2.No order as to costs.

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

REASONS FOR JUDGMENT

JAGOT J:

1. There is before me today an application for leave to appeal from an order made by the primary judge on 11 April 2017dismissing an interlocutory application under s 66B of the Native Title Act 1993 (Cth)(NTA) to replace the applicant.  That order was consequential upon his Honour’s reasons for judgment, Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373.

2. There is no dispute about the relevant principles which regulate the making of the application for leave and its resolution. The applicant needs to…