Kemppi v Adani Mining Pty Ltd

THE COURT: 1 The appellants applied yesterday, by an interlocutory application, to amend their notice of appeal, and as a consequence, the fourth further amended statement of claim in the proceeding below, in light of the Full Court's decision, given on Monday this week, 20 May 2019, in Northern Land Council v Quall [2019] FCAFC 77. The appeal is set down for hearing on Monday, 27 May 2019. We have heard full argument on the application for amendment. 2 In the end, senior counsel for the appellants, when asked how he could distinguish their position from that in Coulton v Holcombe (1986) 162 CLR 1, put forward the following submissions (to which we had added some of the respondents' submissions in opposition). First, the decision in Quall was a very recent decision that raised a point of principle. The appellants contended that this principle was important and could affect the result in this appeal. That was because, they submitted, there was now a real question whether the chief executive officer of the second respondent, Queensland South Native Title Services Limited, could give a certificate of that company's opinion under s 203BE(5) of the Native Title Act 1993 (Cth) as to whether all reasonable efforts have been made to identify the persons who hold or may hold native title in relation to land or waters in the area to be covered by an indigenous land use agreement (ILUA). However, the appellants had admitted on the pleadings below that the chief executive officer had acted with Queensland South's authority. The appellants now want to assert that the decision in Quall would have had the effect of negating that authority. That was because they contended that Quall stood for the proposition that, under the Act, only the board of the representative body, being Queensland South, could exercise the certification function for registration of an indigenous land use agreement under s 203BE of the Act. 3 Secondly, senior counsel for the appellants argued that the new facts not in evidence at the trial that the various respondents said they would wish to be able to adduce, if the amendments were granted, were within a limited compass. However, senior counsel for the first respondent, Adani Mining Pty Ltd, said that he would have wished to cross-examine the chief executive officer on the new facts. Senior counsel for Queensland South said that it wished to tender, among other things, its constitution and would need to consider a range of other material to determine what other evidence it would want to lead. 4 Thirdly, the appellants argued that if, notwithstanding the decision in Quall, Queensland South had conferred authority on its chief executive officer to give the certificate, and the authority were treated as validly conferred in the appeal, the consequence could, or would, possibly impact on third parties, although the appellants were unable to elaborate in any great detail about what that impact might be.

Consideration 5 The foregoing summary is not to gainsay the possibility of the future application of Quall to a similar situation as occurred here concerning the giving of a certificate by the chief executive officer of a company that is a representative body under the Act. We note particularly the limited time available to the parties within which to assimilate and understand the implications that Quall might have for them. 6 However, importantly, the appellants gave no explanation as to why they had not run this point at the trial having regard to their express admission of the chief executive officer's authority to give the certificate. That explanation may be simply that the appellants never thought of the point. But that is not a reason that counts in their favour. 7 In our opinion, the circumstances of the present application are indistinguishable from those in Coulton 162 CLR at 6-8, 10-11 per Gibbs CJ, Wilson, Brennan and Dawson JJ. There, the New South Wales Court of Appeal had allowed the then appellants (who were the first respondents in the High Court) to amend their grounds of appeal to raise a ground asserting invalidity of a notice given under statute in the Government Gazette relating to a water catchment area that affected all lawful users of the water supply and the public generally. The amending parties said that they had overlooked the validity point in conducting the case at the trial. As Gibbs CJ, Wilson, Brennan and Dawson JJ explained, the new issue raised matters of public law that involved not only the parties to the proceeding but the wider community, landholders, the Executive Government and the Parliament. Their Honours held that it "is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial" and that an appellate court's powers with respect to amendment "are ordinarily to be exercised within the general framework of the issues so determined and not otherwise". They said that if the new point had been raised in the court below, and there were any possibility that evidence could have been given to prevent it from succeeding, "this Court has firmly maintained the principle that the point cannot be taken afterwards". They emphasised that a party is bound by the conduct of his, her or its case (Coulton 162 CLR at 7-8). 8 There is no doubt that the issues which the appellants seek to agitate by the amendments are of public importance and affect the rights not only of the parties to the proceedings, but the public generally. That is because the registration of an ILUA after a certification by a representative body under the Act has an effect in rem on the land and waters the subject of the ILUA. But, in all of the circumstances, we have been unable to see any feature in this application for amendment distinguishing it from that in Coulton 162 CLR 1, namely, that the parties are bound by the way in which they conducted their case at the trial and it would not be in the interests of justice, or fair to the respondents to the appeal, to subject the respondents at this stage of the proceeding to what might be a wider trial of a larger issue. That factor is to be considered together with the lack of any explanation as to why, having accepted in their fourth further amended statement of claim, the authority of the chief executive officer to act on behalf of Queensland South in giving the certificate in issue under s 203BE(5), they can now seek to recant from that admission in this appeal: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 215 [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

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