FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121

Matter No. SG 33 of 1997

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

von DOUSSA J

ADELAIDE

10 AUGUST 2000

THE COURT ORDERS THAT:

1.         Direct that each of the respondents within seven days file further statements from those of their intended witnesses (including Dr Fergie and Professor Saunders) who have knowledge of the restricted women’s knowledge the subject of Appendix 2 and Appendix 3 to the Fergie Report setting out the evidence of each such witness upon which the respondent intends to rely concerning (1) the content of the restricted women’s knowledge and (2) the oral disclosure of such knowledge by Dr Doreen Kartinyeri to or in the presence of the witness.

2.         That the said further statement of each witness be filed in a sealed envelope marked “Not to be opened except by the trial judge in the presence of female counsel for the parties”, such envelope to be attached to and appropriately identified by an open statement or affidavit of the witness.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR DECISION

1                     On 28 July 2000 I made orders declaring that s 35 of the Aboriginal Heritage Act 1983 (SA) (the AHA) did not apply to witnesses giving evidence in the trial of this action, and that in relation to restricted women’s knowledge, the subject of Appendices 2 and 3 to the report of the respondent Deane Joanne Fergie (the secret envelopes) that there be no direction under s 130 of the Evidence Act 1995 (Cth) that the information about the restricted women’s knowledge not be adduced as evidence.  Consequential directions were given as to the manner in which evidence about the restricted women’s knowledge would be adduced.  The effect of those directions was to require the evidence to be adduced in camera before a limited number of female legal practitioners: see Chapman v Luminis Pty Ltd (No. 2) [2000] FCA 1010, (Chapman No. 2).

2                     Each of the parties has indicated an intention not to appeal against those orders.  The cross-examination of Dr Fergie, and the examination of Professor Saunders, Ms Mullins and Ms Kee will proceed shortly at a time convenient to female counsel and the witnesses concerned, probably later this month.  In the meantime, the applicants contend that directions should be given requiring each of Dr Fergie, Professor Saunders, Ms Mullins and Ms Kee to file supplementary witness statements concerning their recollections of the contents of the secret envelopes, and in the case of Dr Fergie, Professor Saunders and Ms Mullins, their respective recollections of oral communications of the restricted women’s knowledge conveyed to them by Dr Kartinyeri.  The witness statements so far filed by Dr Fergie, Professor Saunders, Ms Mullins and Ms Kee contain no detail about the contents of the restricted women’s knowledge.  By letter dated 7 August 2000 addressed to the legal representatives of the respondents, the applicants advise that the basis for seeking directions to the above effect was s 47(3) of the Federal Court of Australia Act 1976 (Cth).  The applicants advise that they also seek orders pursuant to the Court’s inherent power to direct the calling of further evidence – presumably on the above topics from the same witnesses.  Further, the applicants gave notice that they seek in the case of Dr Fergie and Professor Saunders, orders in the nature of particulars to the above effect under FCR O 12, r 5, and, finally, if there were doubt about the Court’s power to so order they seek leave to interrogate Dr Fergie and Professor Saunders under FCR O 16, r 5.

3                     The applicants in their correspondence anticipated that compliance with directions or orders seeking the above information would be couched in terms that the supplementary statements or particulars would be supplied in the first instance to the Court in sealed envelopes, and would only be opened by order of the Court and in circumstances that confined the dissemination of the supplementary information to the limited class of persons who were authorised by earlier order of the Court to hear the evidence about the restricted women’s knowledge.

4                     The Court heard argument from the parties in respect of the directions and orders sought by the applicants on 8 August 2000. 

5                     The applicants contended that evidence of the restricted women’s knowledge was relevant to issues in dispute in the proceedings, for the reasons given in Chapman No. 2 at pars 25-28.  They contended that in a trial conducted under directions for the filing of witness statements that were to stand as the evidence in chief of witnesses, they were entitled to know in advance of each witness being called what the witness would say as to facts that were relevant to issues in the case.  At a practical level it was argued that if this information came out piecemeal witness by witness, there was a high probability that earlier witnesses might need to be recalled, and each witness as she gave her evidence would not have the benefit of being directed to topics that might be remembered by other witnesses.  These are practical considerations which if met are likely to avoid delays in the trial process.

6                     Each of the respondents opposed the directions and orders sought.  Mr Anderson QC for Luminis Pty Ltd and Dr Fergie did so on the grounds of fairness to Dr Fergie.  It was said that the directions or orders would result in Dr Fergie being cross-examined on the fragmentary memories of the three other people who learned the restricted women’s knowledge in June and July 1994.  It was argued that this could lead to unfairness particularly as Dr Fergie’s recollections are incomplete as to events so long ago, and she might be cross-examined on other people’s recollections which are wrong.  This could lead to false conclusions, and possibly unfair criticism of her credibility and her report.  These risks are risks of the kind that might arise whenever a number of witnesses give evidence about a past event.  The risk is not a novel one.  Rather it is a common problem that must be appropriately managed in the judicial process.  Against the risk identified by Mr Anderson, there is the countervailing consideration identified by Ms Shaw QC for the applicants that Dr Fergie may be assisted in her recollection by other witnesses identifying correctly topics which Dr Fergie has forgotten.

7                     Mr Anderson has very properly identified these risks against which the Court must guard but risks of this kind, except in exceptional circumstances, do not justify the exclusion of evidence, or, in the present context, relief from an order or direction requiring disclosure of relevant evidence to the opposing party.  The exceptional case would have to be addressed under s 135 of the Evidence Act but in my opinion the information presently available to the Court does not warrant the exercise of that power. 

8                     At present the Court has no detail of the restricted women’s knowledge and is unable to assess the extent to which it may be determinative of facts in issue, or of the allegations of wrongful conduct made against the respondents or some of them.  It is possible that if and when details of the knowledge become available, that some steps might become necessary to guard against the risk of unfairness to one or other of the witnesses.  That possibility must await the Court receiving information about the restricted women’s knowledge.

9                     Mr Quick QC opposed the directions and orders sought on behalf of Professor Saunders, Mr Tickner and the Commonwealth (the Commonwealth respondents).  First, he contended that the restricted women’s knowledge was not relevant to a fact in issue in the proceedings.  He contended that the facts in issue were to be identified by the pleadings, and the one fact crucial in the causes of action asserted by the applicants to which the knowledge could be relevant, namely that of causation, was not pleaded by the applicants, and therefore was not a fact in issue.  Accordingly, so it was argued, the applicants were not entitled to the information sought by the directions or orders.  In support of this proposition it was argued that the statement of claim is fulsome in its particulars of misleading and deceptive conduct, negligent conduct and so on on the part of the respondents which led to the s 10 declaration prohibiting the construction of the bridge for twenty-five years, but fails to state that if there had been no such conduct the s 10 declaration would not have been made.  Mr Quick reminded the Court that as early as 2 February 2000 he had identified this question of causation as one that had to be established by the applicants.  Interestingly, on that occasion he said:

“It is the case of the Commonwealth that even if there was misleading and deceptive conduct, even if there was a breach of duty, it is still for the applicant to prove that had there been no misleading and deceptive conduct, and, had there been no breach of duty, there would not have been a report in terms which would have reported the existence of the tradition upon which the Minister could have relied.  That’s for them to prove and it’s an issue of causation: that if there had been a breach, there was then caused damage as a consequence.”

10                  That statement was not to the effect that the applicants’ pleadings failed to identify an essential ingredient of the cause of action, namely causation.  Rather, the statement was to the effect that the Commonwealth identified causation as an issue between the parties to be determined at trial.

11                  In my opinion that statement correctly summarises the position under the pleadings.  I am unable to agree that the statement of claim fails to plead causation.  Causation is essentially a question of fact the determination of which rests largely on commonsense and experience: see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.  The statement of claim insofar as it addresses the question of causation, must also be interpreted by reference to commonsense and experience.  Having pleaded at length particulars of misleading or deceptive conduct, of negligence, and a breach of statutory duty against various of the respondents, the statement of claim continues:

“53.    Further, in consequence of the aforesaid negligence of Luminis and/or Dr Fergie, and relying on the Fergie report which was prepared negligently by Luminis and/or Dr Fergie –

(a)       Professor Saunders suggested to the Minister that he make, or alternatively concluded that it was open to him to make, the s.10 declaration

(b)       the Minister made the s.10 declaration.

54.       Further, in consequence of the aforesaid negligence and/or breach of duty of Professor Saunders, and relying on the Saunders Report which was prepared negligently and in breach of duty by Professor Saunders, the Minister made the s.10 declaration.

54A.    Further, by reason of his aforesaid negligence and/or breach of statutory duty, the Minister made the s.10 declaration.

54B.    Further, by reason of Professor Saunders’ and/or the Minister’s misfeasance in public office as aforesaid, Binalong has suffered the loss referred to below.”

Paragraph 55 then pleads at length events which the applicants say would have happened had the s 10 declaration not been made.  Paragraph 56 then pleads that because the s 10 declaration was made a number of events did not occur.  In particular, work on the bridge did not recommence, and the applicants’ marina development was not sold in favourable circumstances where the price would have reflected easy access to Hindmarsh Island across the bridge.  Paragraphs 57, 58 and 59 plead facts relating to the sale price of the marina and of the third applicant’s indebtedness to its financier.  Paragraph 60 then continues:  “Accordingly, by reason of the s.10 declaration, Binalong has suffered loss namely …” and particulars of diminished value and increased debt are given.

12                  I consider par 54 effectively pleads causation against Professor Saunders.  It employs the words “in consequence of the aforesaid negligence … of Professor Saunders …”.  In Wardley Australia Limited & Another v The State of Western Australia (1992) 175 CLR 514 at 525 Mason CJ, referring to s 82 of the Trade Practices Act 1974 (Cth) said:

“The statutory cause of action arises when the plaintiff suffers loss or damage ‘by’ contravening conduct of another person.  ‘By’ is a curious word to use.  One might have expected ‘by means of’, ‘by reason of’, ‘in consequence of’ or ‘as a result of’.  But the word clearly expresses the notion of causation without defining or elucidating it.”

In my opinion the words “in consequence of” in par 54 clearly express the notion of causation.  Similarly, in pars 54A and 54B causation is pleaded.  In those paragraphs the words employed are “by reason of …”.  Paragraphs 54, 54A and 54B are denied respectively by Professor Saunders and the Minister, as are the other paragraphs to which reference has been made.

13                  The paragraphs of the pleadings which follow pars 54, 54A and 54B plead facts which, if accepted, establish that the making of the s 10 declaration brought about a state of affairs which would not have occurred had the s 10 declaration not been made, and that the state of affairs so caused and brought about loss to the applicants.

14                  It follows from the interpretation of the pleadings just expressed that I do not accept the argument of the Commonwealth respondents that the applicants are attempting to introduce a critical amendment to their pleadings and to their case at a late stage in the trial such that the respondents would be prejudiced by the amendment.

15                  Next Mr Quick argued that the directions or orders sought should not in any form be made because to do so would establish a very dangerous precedent which exposes litigants to effective interrogation during the course of the trial without the protections that would normally be available to them in the pre-trial process; for example if interrogatories were issued before trial there would be specific questions to which the respondents could give specific answers, pleading where necessary any just cause for declining to answer.  It was suggested that if the witnesses were now required to disclose in advance of their cross-examination what information they recollected about the contents of the restricted women’s knowledge, that would expose them to unfair cross-examination because they would not have the same opportunity to consider what objection might be raised to specific questions on the ground of privilege, public interest, relevance or the like.  In my opinion this submission grossly exaggerates the situation.  I cannot accept that it has not been clear to everyone involved in the case that the question of causation is a very real and alive question, and that the contents of the restricted women’s knowledge is of central importance both to that question, and to challenges raised to the justification for the opinions expressed by Dr Fergie and Professor Saunders about the area being a significant Aboriginal area.

16                  The directions or orders sought by the applicants in substance pose simple questions: “What do you recollect of the contents of the secret envelopes?” and “What do you recollect of the oral information given to you by Dr Kartinyeri?”  Enough is known of the circumstances to dismiss the suggestion that answers to either of these questions would attract legal professional privilege.  Insofar as public interest questions may arise, they have already been aired and dealt with in Chapman No. 2.  Moreover, by directing that this information be supplied in written form in advance of each witness being called each witness will have the opportunity to reflect upon the answers to be given to these questions.  The answers when given will be in written form, initially sealed up, and then not opened until a closed session of Court at which time if any new question of privilege has been identified, or some other matter of serious concern has arisen, it can be taken up with the trial judge before or after the sealed envelopes containing the information are opened.

17                  Next, Mr Quick argued that to make the directions or orders sought would add an unnecessary risk that the restricted knowledge would be disclosed to people outside the limited class which the Court has ordered should be the only persons gaining access to it.  It was suggested that risk of improper disclosure occurs at the stage of preparation by the maker of the statement, in the conveyance of that information to the Court, in the Court’s handling processes, and so on.  Again, I think this risk is grossly exaggerated.  Confidential information is commonly dealt with by those who are likely to be involved with the preparation of the statements proposed and by the Court.  The risk is minimal, certainly not sufficient to justify not making orders or directions otherwise appropriate.

18                  Mr Quick also raised a number of issues which he categorised as “technical” arguments based on the provisions of the Federal Court of Australia Act, and the rules, upon which the applicants place reliance.  I agree with Mr Quick that s 47(3) of the Federal Court of Australia Act is not the statutory provision pursuant to which the court gave directions for the filing of witness statements and that it is not a provision which empowers the orders sought by the applicants.  Section 47(3) provides an exception to the general rule stated in s 47(6) that testimony at the trial of a cause shall be given orally in court.  Section 47(3) empowers the Court in prescribed circumstances to allow proof by affidavit at the trial.  That is not what the applicants are presently seeking to achieve.

19                  Federal Court Rules O 12, r 5 dealing with particulars and O 16, r 5 dealing with interrogatories whilst perhaps not wholly impossible of application in the present circumstances (particularly O 16, r 5 which provides that the Court may “at any stage of the proceeding” order any party to answer interrogatories), are not the most appropriate provisions in the rules to be called in aid.  The pre-trial directions that were given which led to the filing of witness statements were directions given as part of the usual case management system applied in the Federal Court.  Such a direction is given under FCR O 10, r 1(1) and (2)(a)(xvii).  The filing of signed statements of evidence of proposed witnesses is intended to achieve a number of purposes.  Generally speaking, a signed statement of evidence of a proposed witness will, upon verification by the witness in the witness box, become the evidence in chief of the witness.  In that respect the parties to the litigation are entitled to assume that the witness statement will contain not only probative evidence which supports the case of the party calling the witness, but also evidence of facts known to the witness which tends to disprove the case of the opposing party.  Further, the exchange of written statements in advance of the trial helps to identify the real issues of fact in dispute between the parties, and to make more formal and more expensive procedures such as particulars and interrogatories unnecessary.

20                  These were purposes plainly in contemplation when directions requiring the filing and exchange of signed statements were made in this case.  In furtherance of those purposes, I consider that a direction should now be made along the lines presently sought by the applicants.  For reasons already given, I am not persuaded that such a direction should be refused on the ground of unfairness.

21                  A direction, or order for that matter, in the proceedings must be directed to a party.  Counsel for the Commonwealth respondents are correct in pointing out that the Court has no jurisdiction to make orders directly against non-party witnesses as to the content of their statements.  However directions to the parties would normally indicate that they are to file statements of their witnesses covering the evidence intended to be led.  I have already pointed out that I consider the Commonwealth respondents, by their pleadings and the presentation of their case in Court, have raised as an issue the lack of proof of causation.  On that issue, if they present witnesses who have knowledge of relevant facts, but fail to lead evidence of those facts from them adverse comment on their case can be expected from the applicants.  I think the proper course is that directions be made addressed to the respondents.  It will then be up to the Commonwealth respondents in the case of the witness statements from Ms Mullins and Ms Kee to decide to what extent they add to their statements.

22                  It is admittedly late in the piece to be making directions about witness statements.  However in this case the directions which I propose to make are a consequence of the ruling in Chapman No.2.  The question of requiring disclosure by Dr Fergie, Professor Saunders, and the respondents’ witnesses of the contents of the restricted women’s knowledge has been raised on many earlier occasions by the applicants, but the issue was put to one side because of the unresolved question arising under s 35 of the AHA.  That was not a question that lent itself to decision at an early stage in the trial as it was necessary first to determine whether, on the evidence, the disclosure of the restricted women’s knowledge was contrary to Aboriginal tradition.  Restrictions imposed by Aboriginal tradition on divulging that information was a topic addressed by many of the witnesses, and in particular Dr Kartinyeri, who have been called as part of Dr Fergie’s case.

23                  I consider a direction should now be given as follows:

1.         Direct that each of the respondents within seven days file further statements from those of their intended witnesses (including Dr Fergie and Professor Saunders) who have knowledge of the restricted women’s knowledge the subject of Appendix 2 and Appendix 3 to the Fergie Report setting out the evidence of each such witness upon which the respondent intends to rely concerning (1) the content of the restricted women’s knowledge and (2) the oral disclosure of such knowledge by Dr Doreen Kartinyeri to or in the presence of the witness.

2.         That the said further statement of each witness be filed in a sealed envelope marked “Not to be opened except by the trial judge in the presence of female counsel for the parties”, such envelope to be attached to and appropriately identified by an open

            statement or affidavit of the witness.

Associate:

Dated: