In this matter the Court ordered that the application for leave to appeal filed on 5 February 2018 be dismissed and the application to continue the order made on 18 December 2018 be dismissed and that the order be vacated.
In this proceeding Ms Kemppi sought leave to appeal the judgment in Kemppi v Adani Mining Pty Ltd (No 3) [2018] FCA 40.
[1] 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. [2] The test to be applied in an application for such leave was set out by his Honour as follows:
Whether in all of the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and
Whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Construction Forestry Mining an Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97 at [13] per Dowsett, Tracey and Bromberg JJ).
[4] Ms Kemppi needed to satisfy both limbs of this test (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5] per Ryan Stone and Jagot JJ).
[5] As the primary judgment involved a discretionary decision, to succeed on an appeal from it Ms Kemppi needed to establish that it was affected by one of the categories of errors identified in House v The King (1936) 55 CLR at 504-505. That is, that his Honour acted upon a wrong principle or that he allowed extraneous or irrelevant matters to guide or affect his decision and/or he made a mistake on the facts or did not take into account some material consideration.
[6] In addition Ms Kemppi would need to confront the more recent decisions of the High Court as noted by the Full Court in Samsung Electronics Company v Apple Inc. [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] Ms Kemppi argued that Reeves J had made four errors in the refusal to grant an injunction set out as follows:
that at [33] Reeves J overlooked the possibility that even if the ILUA was 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 24 EB Native Title Act 1993 (Cth);
that at [36] and [42] having regard to the error at [33] Reeves J wrongly concluded that Ms Kemppi did not have strong probability of success in her four claims in the substantive proceeding;
that at [42] Reeves J erred in finding Ms Kemppi would suffer no prejudice as an individual from the extinguishment of communal native title rights;
at [65] that Reeves J erred by concluding that the prospect of irreversible and wrongful extinguishment of native title interests was not an exceptional circumstance in that such an outcome was a matter that affects the public generally.
[8] Reeves J reiterated what he said in the primary judgment: given he was due to preside over the trial in the substantive proceeding on that basis that he should not express any concluded view on the countering submissions of counsel.
[9] With respect to the first point made by Ms. Kemppi his Honour stated that he did not intend to and had not expressed any views on the issue and did not decide upon it. For the reasons set out in [10] Reeves J rejected any relevant error with respect to the second point made by Ms. Kemppi in her application to secure leave to appeal. He did not consider either to be issues that warrant the primary judgment being reconsidered by a Full Court. [11] With respect to the third point made by Ms. Kemppi in her application to secure leave to appeal his Honour stated that he did in fact find that Ms. Kemppi and her fellow applicants may suffer prejudice as a result of the extinguishment of native title in the Surrender Zone and his Honour stated that his conclusion at [42] was directed to the prejudice Ms Kemppi specifically claimed she would suffer as a member of the Wangan Jangalingou people not as an individual. He found no error in that conclusion and found that it did not warrant the primary judgment being reconsidered by a Full Court. Finally with respect to the fourth point made by Ms Kemppi, his Honour stated that Ms Kemppi in her contention about the public interest that undoubtedly exists with respect to native title litigation failed 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 (Oshlack v Richmond River Council [1998] HCA 11). On the latter question his Honour re-enforced his views in Burragubba v State of Queensland [2016] FCA 1525 at [15].
[13] Reeves J found that Ms Kemppi had failed to identify any relevant error in the primary judgment that would warrant it being re-considered by the Full Court. [14] Since Ms Kemppi failed to meet the first limb of the test which is conjunctive, it was unnecessary to consider the second limb and the application for leave to appeal was dismissed. As a consequence since Ms Kemppi failed to obtain leave to appeal the primary judgment her application to extend the order made on 18 December 2017 pending her proposed appeal was also dismissed.