Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086

Kemppi v Adani Mining Pty Ltd (No 2) [2017] FCA 1086

The applicant is given leave to amend her statement of claim as sought, except for particulars relating to alleged failure to provide independent expert advice about contractual benefits; only matters concerning identification and participation criteria that may affect statutory certification decisions are reasonably arguable as relevant to judicial review proceedings under s 203BE(5) of the Native Title Act. Proposed amendments relating to merits of the ILUA or knowledge/consideration of financial advice are not reasonably arguable grounds for challenge and are struck out.

Parties
First Applicant: Delia Kemppi; Second Applicant: Lester Barnard; Third Applicant: Lyndell Turbane; Fourth Applicant: Adrian Burragubba; Fifth Applicant: Linda Bobongie; First Respondent: Adani Mining Pty Ltd; Second Respondent: Queensland South Native Title Services; Third Respondent: State of Queensland; Fourth Respondent: Native Title Registrar
Jurisdiction
Australia
Judgment Date
12 September 2017
Procedural Posture
Judicial Review / Interlocutory Application to Amend Statement of Claim
Outcome
Application partly allowed
Legal Topics
Amendment of Pleadings, Certification of Applications, Relevant Considerations, Statutory Construction, Judicial Review, Indigenous Land Use Agreements
Native Title Administrative Law Amendment of Pleadings Certification of Applications Relevant Considerations Statutory Construction Judicial Review Indigenous Land Use Agreements

Case Brief

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Parties

Delia Kemppi

First Applicant

Lester Barnard

Second Applicant

Lyndell Turbane

Third Applicant

Adrian Burragubba

Fourth Applicant

Linda Bobongie

Fifth Applicant

Adani Mining Pty Ltd

First Respondent

Queensland South Native Title Services

Second Respondent

State of Queensland

Third Respondent

Native Title Registrar

Fourth Respondent

Procedural Posture

Judicial Review / Interlocutory Application to Amend Statement of Claim

Legal Issues

  1. 1 Whether proposed amendments to statement of claim should be allowed
  2. 2 Whether amendments plead an arguable cause of action
  3. 3 Whether amendments disclose matters relevant to statutory certifications under the Native Title Act

Ratio Decidendi

The applicant is given leave to amend her statement of claim as sought, except for particulars relating to alleged failure to provide independent expert advice about contractual benefits; only matters concerning identification and participation criteria that may affect statutory certification decisions are reasonably arguable as relevant to judicial review proceedings under s 203BE(5) of the Native Title Act. Proposed amendments relating to merits of the ILUA or knowledge/consideration of financial advice are not reasonably arguable grounds for challenge and are struck out.

Court Disposition

Application partly allowed

Orders

  • Applicants given leave to file a further amended statement of claim containing the allegations set out in paragraph [24] of the reasons, with the exception of paragraph (d).
  • The interlocutory application filed 6 June 2017 is otherwise dismissed.