Kemppi v Adani Mining Pty Ltd [2018] FCA 2012

Kemppi v Adani Mining Pty Ltd [2018] FCA 2012

Security for costs was warranted because the appellants were impecunious, had chosen to bring an appeal after trial, and Adani would suffer injustice if it succeeded on the appeal but could not recover costs. The appeal was arguable and had some public interest features, but the appellants did not show that a security order in any amount would stifle the appeal, and the public interest did not outweigh Adani's legitimate costs interests at the appellate stage. The amount sought by Adani and the experts' estimates were disproportionate because the proceeding was a relatively uncomplicated one to two day judicial review appeal, so fair security was fixed at $50,000, payable by 31 January...

Jurisdiction
Australia
Judgment Date
18 December 2018
Procedural Posture
Application for Security for Costs of an Appeal / Interlocutory Application in Appeal to the Full Court From Kemppi V Adani Mining Pty Ltd (no 4) [2018] FCA 1245
Outcome
First respondent's application for security for costs granted in part; appellants ordered to provide $50,000 security by 4pm on 31 January 2019, failing which the appeal be dismissed; costs reserved.
Legal Topics
['security for Costs on Appeal' 'impecunious Appellants' 'federal Court Discretion Under S 56 of the Federal Court of Australia Act 1976 (cth)' 'indigenous Land Use Agreement Registration' 'native Title Act Certificate']
['practice and Procedure' 'native Title'] ['security for Costs on Appeal' 'impecunious Appellants' 'federal Court Discretion Under S 56 of the Federal Court of Australia Act 1976 (cth)' 'indigenous Land Use Agreement Registration' 'native Title Act Certificate']

Case Brief

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Procedural Posture

Application for Security for Costs of an Appeal / Interlocutory Application in Appeal to the Full Court From Kemppi V Adani Mining Pty Ltd (no 4) [2018] FCA 1245

Legal Issues

  1. 1 ["Whether the appellants should be ordered to provide security for the first respondent's costs of the appeal under s 56 of the Federal Court of Australia Act 1976 (Cth)." 'Whether an order for security for costs would stifle a reasonably arguable appeal by impecunious appellants.' 'What amount of security was appropriate for a one to two day judicial review appeal concerning native title issues.' 'What period should be allowed for the appellants to provide security and what consequence should follow non-compliance.']

Ratio Decidendi

Security for costs was warranted because the appellants were impecunious, had chosen to bring an appeal after trial, and Adani would suffer injustice if it succeeded on the appeal but could not recover costs. The appeal was arguable and had some public interest features, but the appellants did not show that a security order in any amount would stifle the appeal, and the public interest did not outweigh Adani's legitimate costs interests at the appellate stage. The amount sought by Adani and the experts' estimates were disproportionate because the proceeding was a relatively uncomplicated one to two day judicial review appeal, so fair security was fixed at $50,000, payable by 31 January...

Court Disposition

First respondent's application for security for costs granted in part; appellants ordered to provide $50,000 security by 4pm on 31 January 2019, failing which the appeal be dismissed; costs reserved.

Orders

  • ["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 paying the money into Court or by providing an irrevocable bank guarantee from an Australian trading bank in a form acceptable to the Registrar." "The first respondent notify Robertson J's...