FEDERAL COURT OF AUSTRALIA

Kemppi v Adani Mining Pty Ltd [2018] FCA 105

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 5 February 2018 is dismissed.

2.    The application to continue the order made on 18 December 2017 is dismissed and that order is hereby vacated.

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

REASONS FOR JUDGMENT

REEVES J:

1    Ms Kemppi has sought leave to appeal my judgment dismissing her application for an interlocutory injunction: [2018] FCA 40 (the primary judgment). For convenience, I will use the same terminology and abbreviations as I used in the primary judgment.

2    Leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because there is no dispute that the primary judgment was an interlocutory judgment.

3    The test to be applied in an application for such leave is well-established. It is: (1) whether in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 at [13] per Dowsett, Tracey and Bromberg JJ).

4    Ms Kemppi must satisfy both limbs of this test (see Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [5] per Ryan, Stone and Jagot JJ).

5    Furthermore, since the primary judgment involved a discretionary decision, to succeed on an appeal from it, Ms Kemppi must establish that it was affected by one of the categories of errors identified in House v The King (1936) 55 CLR 499 at 504–505. That is, that I acted upon a wrong principle, or I allowed extraneous or irrelevant matters to guide or affect my decision, or I made a mistake on the facts, or I did not take into account some material consideration.

6    Further still, Ms Kemppi will need to confront the more recent decisions of the High Court as noted by the Full Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [39] to the effect that, where the decision appealed from involves a discretionary judgment, there is a strong presumption in favour of its correctness and it should be affirmed unless the appeal court is satisfied that it is clearly wrong.

7    To attempt to meet the first limb of the test for leave to appeal above, Ms Kemppi has identified four errors which she claims are present in my judgment. They are as follows:

(a)    that at [33], I erred by overlooking the possibility that, even if the ILUA were declared void, the Court might conclude that, while it was registered, whatever extinguishment of native title that had occurred would continue to be valid and effective pursuant to s 24EB of the Native Title Act 1993 (Cth);

(b)    that at [36] and [42], having regard to the error at [33], I wrongly concluded that she did not have, on balance, a strong probability of success in her four claims in the substantive proceeding;

(c)    that at [42], I erred by finding that she would suffer no prejudice as an individual from the extinguishment of the communal native title rights and interests of the Wangan and Jagalingou People;

(d)    at [65], I erred by concluding that the prospect of the irreversible and wrongful extinguishment of her native title rights and interests was not an “exceptional circumstance” in the sense that such an outcome was a matter that affects the public generally.

8    Before considering these four matters, I should repeat an observation I made in the primary judgment. At [32], I stated that, because I am to be the judge at the trial in the substantive proceeding, which is due to commence in approximately one month’s time, I should not express any concluded, or detailed, views on the countering submissions of counsel concerning Ms Kemppi’s four claims in that proceeding. Obviously, I propose to maintain that position in these reasons.

9    As to [7(a)] above, the statement in the last sentence of [33] of the primary judgment was intended to encapsulate my understanding of Ms Kemppi’s position on the s 24EB issue as conveyed to me by her counsel at the hearing. It was not intended to express any views on that issue consistent with the statement I earlier made at [30], that I did not consider it was necessary to decide that issue in order to determine Ms Kemppi’s interlocutory injunction application. Since I did not decide that issue, I did not consider any aspect of it. Self-evidently, I did not therefore commit any error by overlooking any aspect of it. If the statement in the last sentence of [33] is inaccurate, I do not consider that constitutes an error that warrants the primary judgment being reconsidered by a Full Court.

10    As to [7(b)] above, since I do not consider any relevant error is present in [33], the conclusions I expressed in [36] could not be affected by any such error. Similarly with respect to [42]. I would add that I have carefully reviewed the conclusion I reached in that paragraph by reference to Ms Kemppi’s amended originating application, her further amended statement of claim and her submissions on this application and, without descending into detail, I do not consider there is an error contained therein that would warrant the primary judgment being reconsidered by a Full Court.

11    As to [7(c)] above, at [55] of the primary judgment, I did, in fact, find that Ms Kemppi and her fellow applicants may suffer prejudice as individuals as a result of the extinguishment of native title in the Surrender Zone. My conclusion at [42] was directed to the prejudice Ms Kemppi specifically claimed she would suffer as a member of the Wangan and Jagalingou People, not as an individual. I do not consider there is a relevant error in that conclusion. Alternatively, even if there is such an error, having regard to the conclusion at [55], I do not consider that error would warrant the primary judgment being reconsidered by a Full Court.

12    Finally, as to [7(d)] above, I consider Ms Kemppi’s contention about the public interest that undoubtedly exists with respect to native title litigation fails to appreciate the distinction between litigation in which the public has an interest and the character of the interests being pursued in a particular piece of litigation (see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [71] per McHugh J). On the latter question, I do not resile from the view I expressed in Burragubba v State of Queensland [2016] FCA 1525 at [15]. Accordingly, I consider the interests Ms Kemppi is pursuing in this litigation are accurately characterised as private, or personal.

13    For these reasons, I do not consider Ms Kemppi has identified any relevant error in the primary judgment which would warrant it being reconsidered by a Full Court.

14    Since Ms Kemppi has failed to meet the first limb of the test outlined above, and that test is conjunctive, it is unnecessary to consider the second limb. Accordingly, her application for leave to appeal must be dismissed.

15    Since Ms Kemppi has failed to obtain leave to appeal the primary judgment, her application to extend the order (Order 10) I made on 18 December 2017, pending her proposed appeal, must also be dismissed.

16    I will order accordingly.

Associate:    

Dated:    15 February 2018

SCHEDULE OF PARTIES