Robertson J
The Court ordered that by 4pm on 31 January 2018 the appellants give security for the first respondent’s costs of appeal of $50,000.
This case concerns an application for security costs, brought by the first respondent to an appeal, Adani Mining Pty Ltd. The other respondents are; the Queensland South Native Title Services Limited, the State of Queensland, the Native Title Registrar. The application concerned certain grounds of challenge to a certificate issued under s 230BE(1) of the Native Title Act 1993 (Cth) (NTA): see Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245. These were rejected by the primary judge. The appellants submit 14 grounds of appeal:
Grounds 1-11 turn on the correct construction and application of s203BE(5) of the NTA, seeking contrast of the primary judge’s decision with Bright v Northern Land Council [2018] FCA 752 and QGC Pty Ltd v Bygrave (No 3) [2011] 199 FCR 94; and
Grounds 12-14 concern the correct construction and application of the term ‘complete description’ as it appears in r.7(2)(3) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth).
The appellant seeks that the appeal is upheld, and that numerous orders are set aside (at [10]).
Adani draws on a non-exhaustive statement of consideration relevant to the exercise of the power under s 56 of the Federal Court of Australia Act 1976 (Cth) to make an order that the applicant give security for the payment of costs that may be awarded against them. These included matters referred to by Emmett J in Dye v Commonwealth Securities Ltd [2012] FCA 992 at [26];
prospects of success;
the risk that an order for costs will not be satisfied;
whether the making of an order for security would be oppressive insofar as it would stifle a reasonably arguable claim;
whether impecuniosity of an appellant arises out of the conduct that is the subject of complaint in the relevant proceeding;
whether there are any aspects of public interest that weigh in the balance against granting security; and
whether there are any other particular discretionary matters peculiar to the circumstances of the case.
Submissions
At [34] Adani submits that security for costs should be ordered because:
The appellants will be unable personally to satisfy any costs order if the appeal is unsuccessful;
The appellants have not established that an order for security for costs will stifle the appeal;
The appellants have a history of being ordered, but not actually paying, Adani’s costs;
One of the appellants is a frequent litigator against Adani’s interests;
The appellants have already had the benefit of a trial;
Adani did not cause or contribute to the appellant’s impecuniosity;
Adani has not delayed in bringing its application for security costs;
The appellants prospects of success on appeal are low;
Merely because the proceedings concern a challenge to the NTA, does not make it necessarily in the public interest;
An order for security of costs ‘will protect Adani from the unfair approach of the appellants’ unnamed benefactors raising funds to pay the appellants’ lawyers but not to pay Adani’s costs when the litigation against Adani was unsuccessful’.
The appellants rejected the majority of Adani’s submissions. In particular they contended that the resolution of the proper construction and application of s 203BE(5) of the NTA and r7(2)(e) are matters of significant public interest, and the underlying matter raised on appeal, being the surrender of native title, is ‘of great significant to native title holders’ (at [37]).