Kemppi v Adani Mining Pty Ltd

1. By 4pm on 31 January 2019 the appellants give security for the first respondent's costs of the appeal in the sum of $50,000 by: (a) paying the money into Court; or (b) by providing an irrevocable bank guarantee from an Australian trading bank in a form acceptable to the Registrar.
2. The first respondent notify Robertson J's chambers if and when order 1 is satisfied.
3. In the event that order 1 is not complied with, the appeal be dismissed.
4. Costs reserved.
5. Liberty to apply on two days written notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 These reasons concern an application for security for costs brought by the first respondent to an appeal, Adani Mining Pty Ltd. The second respondent is the Queensland South Native Title Services Limited, the third respondent is the State of Queensland and the fourth respondent is the Native Title Registrar. 2 The appeal, filed on 7 September 2018, is from the orders made by the primary judge on 17 August 2018 dismissing the then applicants' (now appellants') further amended originating application: see Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245; 360 ALR 697. 3 That application concerned certain grounds of challenge to a certificate issued under s 230BE(1)(b) of the Native Title Act 1993 (Cth) and to the registration of the Adani Indigenous Land Use Agreement (ILUA). 4 The background, and the issues at first instance, may be sufficiently seen from the following paragraphs of the judgment of the primary judge, at [2]-[4]: The area of the proposed Carmichael coal mine falls within the claim area of the Wangan and Jagalingou native title determination application (the W & J application). As a consequence, Adani needs to obtain the agreement of the Wangan and Jagalingou People with respect to any native title that may be affected by its development. To that end, in April 2016, Adani, the State of Queensland (the third respondent) and the Wangan and Jagalingou native title claim group (the W & J claim group) entered into an Indigenous Land Use Agreement (the Adani ILUA) under the provisions of Division 3 of Part 2 of the Native Title Act 1993 (Cth) (the NTA). Subsequently, Adani successfully applied to the Native Title Registrar (the fourth respondent) to enter the Adani ILUA on the Register of Indigenous Land Use Agreements (the Register) under Part 8A of the NTA. Ms Kemppi's main goal in this proceeding was to set aside that registration. The path to that goal comprised two stages. The first stage concerned a certificate that was issued by Queensland South Native Title Services (QSNTS) (the second respondent) in April 2016 under s 203BE(1)(b) of the NTA (the Certificate). That Certificate was subsequently used by Adani to support its application to the Registrar to enter the Adani ILUA on the Register. Accordingly, in the first stage, Ms Kemppi sought, by this proceeding, to have that Certificate declared to be "void and of no effect". Assuming she is able to obtain that declaration, in the second stage, Ms Kemppi sought a declaration that the Registrar had no jurisdiction to consider Adani's application and therefore his decision to enter the Adani ILUA on the Register was "void and of no effect". There were two legs to Ms Kemppi's attack on the Certificate. In the first leg, she claimed that, in issuing the Certificate, QSNTS acted unreasonably and thereby committed jurisdictional error which, she claimed, justified the declaration of nullity that she sought. In the alternative, in the second leg, she claimed that, in issuing the Certificate, QSNTS failed to take account of a number of relevant considerations which, she claimed, resulted in jurisdictional error which, she claimed, should lead to the same result. Finally, Ms Kemppi made a third challenge to the registration of the ILUA. She claimed that Adani's application to register the ILUA did not comply with regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) (the Regulations) and, for that reason, the Registrar's decision to register the ILUA was void and of no effect. 5 The primary judge referred to and relied extensively on a statement of agreed facts adopted by all the active parties. The fourth respondent, the Native Title Registrar, had filed a submitting appearance. 6 The conclusion of the primary judge, at [169], was as follows: For the reasons set out above, I have concluded that none of Ms Kemppi's grounds of challenge to the Certificate and/or the registration of the Adani ILUA has any merit. Having reached this conclusion, it is unnecessary to consider a consequential issue that was addressed by the parties in closing submissions. That was, if the Certificate was not validly issued and/or if the application for registration of the Adani ILUA was invalid because it did not contain a "complete description" as required by reg 7(2)(e) of the Regulations, what effect, if any, did that invalidity have on the Registrar's decision to register the Adani ILUA?… 7 The appeal is as of right. I am informed it is likely to be heard in the May 2019 Full Court sittings. There is a slim possibility that it may be heard earlier. 8 The grounds of appeal, relevant to the assessment of the quantum of any order for security for costs are 14 in number. 9 The appellants submit that their notice of appeal demonstrates an arguable case of error on the part of the primary judge. The grounds are summarised by the appellants as follows: The Appellants submit that their notice of appeal filed 7 September 2018 demonstrates an arguable case of error on the part of the learned primary judge in that: (a) grounds 1-11 of the Appellants' notice of appeal concern the correct construction and application of s.203BE(5) of the Native Title Act 1993 (Cth), where there is an arguable case of conflict between the approach of the learned primary judge and previous authority; (b) grounds 12-14 of the Appellants' notice of appeal concern the correct construction and application of the term "complete description" as it appears in r.7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth), where that regulation has not been previously judicially considered. As to (a), the appellants seek to contrast [145]-[146] of the primary judge's decision with Bright v Northern Land Council [2018] FCA 752 at [164]-[170] per White J, and QGC Pty Ltd v Bygrave (No 3) [2011] FCA 1457; 199 FCR 94 at [100]-[101] per Reeves J. 10 The relief sought in the notice of appeal is as follows: 1. The appeal is upheld. 2. The orders below are set aside. 3. A declaration that the certificate issued on behalf of the Second Respondent on 26 April 2016 under s.203BE(5)(b) of the Native Title Act 1993 (Cth), certifying the application by the First Respondent for the registration of the agreement referred to in the Second Further Amended Statement of Claim at [15] as the "Project Agreement" on the Register of Indigenous Land Use Agreements under the Native Title Act 1993 (Cth) is void and of no effect. 4. A declaration that the Fourth Respondent had 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). 5. A declaration that the decision of the Fourth Respondent, made on 8 December 2017, to register the Project Agreement on the Register of Indigenous Land use Agreements under the Native Title Act 1993 (Cth) is void and of no effect. 6. An order that the First, Second and Third Respondents, pay the Applicants' costs of and incidental to the application to the learned primary judge and the appeal. 7. Such further orders as the Court considers appropriate. 11 There are also notices of contention filed by Adani and by the State dealing with the matter the primary judge found it unnecessary to consider: see [6] above. 12 The application for security, brought only by the first respondent, is relevantly in the following terms: 1. Pursuant to section 56(1) of the Federal Court of Australia Act 1976 (Cth) and rule 36.09 of the Federal Court Rules 2011 (Cth), the Appellants provide the First Respondent with security for its costs of the appeal in the amount of $161,000.00 (or such other sum as the court deems fit) (Security). 2. The Security shall be provided either by payment into Court or the provision of an irrevocable bank guarantee from an Australian trading bank (or in such other form as the court deems fit). 3. The Security shall be provided within 14 days of the Court's order. 4. The appeal be stayed until the Security is given. 5. If the Security is not given within 14 days of the Court's order, the appeal be dismissed with costs. 6. Liberty to apply on 2 days' notice.