FEDERAL COURT OF AUSTRALIA

Croft v State of South Australia (Port Augusta Overlap Proceeding) [2019] FCA 249

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application of the Barngarla and Nukunu filed on 11 February 2019 is refused.

2.    The time fixed by Order 12 made on 27 November 2018 within which the Third Applicant and any respondent wishing to oppose the application for summary judgment is to file and serve written submissions, not exceeding 10 pages, is extended to 26 February 2019.

3.    The time fixed by Order 13 made on 27 November 2018 within which the First and Second Applicants are to file and serve any written submissions in reply on the application for summary judgment, not exceeding five pages, is extended to 1 March 2019.

4.    The question of the costs of today’s hearing is adjourned to the date on which judgment is delivered in the summary judgment application and, in the event that no application for costs is made at that time, the Court will assume that no application is pursued.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    I am dealing with an application by two parties to native title proceedings to make use of documents prepared for use in earlier native title proceedings. The two applicants accept that the use of the documents is subject to restrictions by reason of Court orders made in the earlier proceedings and by reason of the obligation commonly referred to as the Harman Undertaking.

2    By way of brief background, each of the Barngarla, Nukunu and Kokatha Peoples have filed applications for the determination of native title over areas which include or comprise the area of the city of Port Augusta and its close environs. These are the Barngarla Native Title Claim (SAD6011/1998); the Nukunu Native Title Claim (SAD6012/1998); and the Kokatha #3 Native Title Claim (SAD83/2016). On 21 August 2017, the Court ordered that the overlapping claims proceed as one in Action No SAD6011/1998 and that the proceedings be known as the Port Augusta Overlap Proceeding.

3    The Court has ordered that certain questions in the Port Augusta Overlap Proceeding be heard in a trial commencing on 30 March 2020 and has made timetabling orders for that purpose.

4    On 26 November 2018, the Barngarla and the Nukunu Peoples filed an interlocutory application seeking an order pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the FCR) for the summary dismissal of the Kokatha #3 Claim (SAD83/2016) on the basis that:

(a)    the Kokatha have no reasonable prospect of successfully prosecuting the application; and/or

(b)    it is otherwise an abuse of the process of the Court.

5    That application was made following the dismissal by the High Court of the application for special leave to appeal from the judgment of the Full Court of this Court in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36. I will refer to that judgment and the first instance judgment as the Lake Torrens Overlap Proceedings.

6    The summary judgment application is listed for hearing on 6 March 2019.

7    On 11 February 2019, the Barngarla and the Nukunu Peoples filed the interlocutory application which is presently before the Court. They seek an order that six documents filed in the Lake Torrens Overlap Proceedings at first instance “be available for use” in the hearing of their summary judgment application. They also seek an order that the “material”, by which I understand them to mean the six documents, be used only for the purposes of the summary judgment application.

8    The six documents are described by the Barngarla and the Nukunu as follows:

(a)    Report of Conference of Experts, signed by the four experts and the District Registrar and the Deputy Registrar on 7 July 2015;

(b)    Report of Conference of Experts held 10 & 11 September 2015, signed by the eight experts and the Deputy District Registrar and the Deputy Registrar on 11 September 2015;

(c)    Report on behalf of the Barngarla (Lake Torrens) Claimants by Deane Fergie, Rod Lucas and Paul Monaghan, dated 6 October 2015;

(d)    Final Expert Report of Associate Professor Jon Willis (non-restricted version), filed 7 October 2015;

(e)    First Respondent’s Expert Report of Professor Peter Sutton (redacted version), dated 20 October 2015; and

(f)    Connection Report, Adnyamathanha Native Title Application – Lake Torrens by Bob Ellis, revised 15 December 2015.

9    The application by the Barngarla and Nukunu is opposed by the Kokatha People and by the Commonwealth. The State of South Australia, the Commercial Fishing Licence Holders, the Local Councils and the South Australian Apiarists Association have expressed a neutral view. No other party has appeared here today seeking to be heard.

10    The Barngarla and the Nukunu accept that the first, fourth, fifth and sixth documents were produced pursuant to an order made by Mansfield J in the Lake Torrens Overlap Proceedings on 10 December 2014, as amended from time to time, and that the second and third documents were produced pursuant to orders made by Mansfield J in the same proceeding on 8 July 2015, as amended from time to time.

11    The Barngarla and the Nukunu also accept that each of the six documents is subject to Order 9 made by Mansfield J on 10 December 2014 which was as follows:

Unless otherwise ordered, agreed or subject to objection pursuant to Order 7, the party making any document available after 10 March 2015 to another party taking an active role in the overlap proceeding, all of the materials shall be subject to the following restrictions:

(a)    the contents of the documents are not to be communicated to any person other than for the purpose of the overlap proceeding;

(b)    the document is not to be copied except for the purposes of the overlap proceeding with a register kept by the solicitor for each party of the copies made and their whereabouts; and

(c)    the document is not to be used for any purpose other than for the overlap proceeding.

12    As is apparent, the effect of those orders was to confine dissemination and use of the documents to the purposes of the Lake Torrens Overlap Proceedings. It is also apparent that Mansfield J contemplated that a later order of the Court may vary the extent of the restriction which he had imposed. It is pertinent to note that the orders made on 10 December 2014 are recorded as having been made by consent.

13    The Barngarla and the Nukunu also accept that use of each of the documents is subject to the Harman Undertaking, as explained by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

14    The acceptance by the Barngarla and the Nukunu Peoples of these matters means that it is not necessary to consider the effect, if any, of the subsequent use of the documents in question in the hearing of the Lake Torrens Overlap Proceedings.

15    The Harman Undertaking, which requires that a party to litigation not use for any other purpose documents which another party was compelled by Court order or rule to produce in the litigation, without the leave of the Court, was considered in Hearne v Street. Justices Hayne, Heydon and Crennan JJ said:

[96]    Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. …

(Footnotes omitted)

16    In [102], their Honours described the undertaking as an obligation of law arising from the circumstances in which the material was generated and received. The seriousness of the undertaking or obligation is underlined by the fact that a breach of it can be punished as a contempt.

17    It is open to a Court to release a party from the Harman Undertaking. However, the authorities indicate that the dispensing power is not freely exercised and, indeed, only when special circumstances exist: Hearne v Street at [107] approving the statement of Brennan J in Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 at 37. Hayne, Heydon and Crennan JJ also approved the following statement by Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 775:

Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party.

18    Some of the authorities in this Court appear to indicate that, in practice, the dispensing power may not be exercised with the stringency suggested by Hobhouse J. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 472; (1992) 38 FCR 217 at [26], Wilcox J said:

For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant.

His Honour then went on to list some of those factors which include:

    the nature of the document;

    the circumstances under which it came into existence;

    the attitude of the author of the document and any prejudice the author may sustain;

    whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

    the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);

    the circumstances in which the document came into the hands of the applicant for leave; and

    the likely contribution of the document to achieving justice in the second proceeding.

19    In Australian Trade Commission v McMahon (1997) 73 FCR 211, Lehane J at 217 said:

“[S]pecial circumstances” will fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings.

20    In Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621 at [45], Robertson J, in circumstances which, while not analogous to, have some similarity with, the circumstances of the present case, adopted the approach of Wilcox and Lehane JJ.

21    In Ashby v Slipper (No 2) [2016] FCA 550; (2016) 343 ALR 351 at [10], Flick J said:

… The need for “special circumstances” recognises the balance between reasons for imposing the constraint on material secured for use in proceedings and the reasons why a party may seek to free itself from that constraint. There must be a reason to release a party from the constraint initially imposed which seeks to balance – or at least take into account – the reasons for imposing the constraint in the first place. Reasons for initially imposing the constraint include a recognition that the Court’s compulsory processes of obtaining information may have been employed to secure that information – in some cases from third parties – in order to facilitate the administration of justice between the parties to litigation. Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. …

22    The submissions of the Commonwealth raised a question of the Court’s power to make an order of the kind sought by the Barngarla and the Nukunu. I proceed on the basis that the Court does have that power, noting that orders to the effect now sought have been made on several occasions previously. It is not necessary to determine whether that power is to be found in s 23 of the FCA Act, as the Barngarla and the Nukunu submitted or whether, at least in respect of the order made by Mansfield J, it is incidental to the making of the order in the first place.

23    The Barngarla and the Nukunu submit that five matters indicate that the six documents should be available for use on the hearing of the summary judgment application:

(a)    The documents in question deal, amongst other things, with the areas of land which have been occupied by the Kokatha, both traditionally and otherwise, and so are relevant to the issue of whether the Kokatha have any rights and interests over the land encompassed by the Kokatha #3 application;

(b)    the documents were referred to by Mansfield J in his decision in the Lake Torrens Overlap Proceedings;

(c)    the Kokatha and the Barngarla were active parties in the Lake Torrens Overlap Proceedings and each produced one of the expert anthropological reports which is sought to be used, and the authors of those reports participated in the conferences of experts;

(d)    if granted leave, they will use only those parts of the documents which are non-gender restricted and which concern the ethnographic record informing the conclusions of Mansfield J in the Lake Torrens Overlap Proceedings; and

(e)    if granted leave, they will, in the absence of any further order, use the documents only for the purposes of the hearing of the summary judgment application.

24    As is apparent, the fourth and fifth of these matters concerns the nature of the use to be made of the documents.

25    A number of matters, considered in combination, indicate to my mind, that the orders sought by the Barngarla and the Nukunu ought not to be made. First, the application is not to be approached on the basis that it is only one for release from the Harman Undertaking. The documents in question are also the subject of an express order of the Court, and that order stands until set aside or varied. True it is that Mansfield J contemplated that the order could be subject to another order, and I accept that that may be taken to encompass an order in proceedings other than the Lake Torrens Overlap Proceedings, but the very fact that the restriction order was made suggests that there should be good reason for departing from the position directed by the Court at that time.

26    Secondly, it is appropriate to have regard to the reasons for the orders made by Mansfield J. It ought not to be assumed that the rationale for the orders is the same as the rationale for the Harman Undertaking discussed by the High Court in Hearne v Street. It is reasonable, in my view, to infer that Mansfield J was concerned about maintaining, so far as possible, the confidentiality of the documents which one or more of the parties may have regarded as confidential or as secret. His Honour sought to do so limiting the dissemination of the material. Given this rationale, the Court ought in my view, now be concerned about interfering with the position which his Honour put in place for that purpose.

27    Thirdly, there is the consideration that the Barngarla and the Nukunu contemplate using at least some of the documents in a way which may be prejudicial to a party who produced the documents pursuant to the consensual regime. That is not fatal to the application, but as the passage from Hobhouse J in Prudential Assurance v Fountain Page indicates, that is a pertinent matter.

28    Fourthly, the matters on which the Barngarla and the Nukunu rely in support of their application, do not, in my view, point persuasively to the grant of the application. The first matter mentioned is that the documents may contain relevant material. Relevance, of course, is a necessary condition for the admission of evidence in all proceedings, but it does not, of itself, suggest a special circumstance. The Barngarla and the Nukunu do not submit that the material in the documents may be critical to the summary judgment application. They do not, for example, submit that they can pursue the application only if the documents in question are available to them.

29    The submissions of the Barngarla and the Nukunu did not indicate how the fact that Mansfield J had referred to some of these documents contributed to the conclusion that there were special circumstances. All that tells one, I think, is that Mansfield J considered it necessary to refer to that material for the proper disposition of the Lake Torrens Overlap Proceedings.

30    The restrictions on use and dissemination which the Barngarla and the Nukunu propose, if the order is made, are sensible but do not, in my view, take the matter much further. On the contrary, one would expect that it would fatal to the application if restrictions on use of a like kind to those originally imposed by Mansfield J were not contemplated.

31    Fifthly, there is the relatively belated nature of the application. I have used the word “belated” because the Court’s orders of 27 November 2018, which timetabled the hearing of the summary judgment application, required that the Barngarla and the Nukunu file and serve the affidavits upon which they would rely by 19 December 2018, put in place a timetable for responsive material, and then a timetable for submissions, all with a view to the orderly preparation for the hearing on 6 March 2019. I accept the submission of counsel for the Kokatha that the making available of the material now has the potential to disrupt the preparation for the hearing, possibly necessitating an adjournment of that hearing, and that having a knock-on effect in relation to timetabling for the preparation of the hearing in March 2020.

32    Sixthly, the Court would wish to be satisfied that all parties to the Lake Torrens Overlap Proceedings have been notified of the present application and have had the opportunity to express the view about whether or not the orders sought should be made. Counsel acknowledged that the Court cannot be satisfied that all of those parties have been so notified. This is a pertinent consideration, because the parties to the Lake Torrens Overlap Proceedings and the Port Augusta Overlap Proceeding are not entirely coincident. In particular, the Court has not heard the attitude of the Adnyamathanha People, who were a principal party in the Lake Torrens Overlap Proceedings and who provided one of the documents which are the subject of the present application.

33    Next, I consider it pertinent that the proceedings in respect of which the documents are sought to be used are summary judgment proceedings. Applications under s 31A of the FCA Act are not generally occasions for detailed evaluations of evidence. That is because, generally speaking, the Court will decline to order summary judgment if there are factual issues capable of being disputed at trial. The place for resolution of these issues is the trial. That being so, the Court’s satisfaction on the hearing of the summary judgment application that there is evidence pointing in favour of the Kokatha #3 Claim and evidence pointing another way (if that is what the material sought by the Barngarla and Nukunu indicates), may not take the matter very far. It is unlikely that the Court will wish to engage, on a summary judgment application, in a detailed evaluation of conflicting evidence with a view to determining the prospects of the Kokatha establishing a disputed issue.

34    At a general level, the Court should, in my view, be careful to uphold the regime it puts in place for the protection of the confidential and secret information of the kind which must often necessarily be disclosed in applications for the determination of native title. Those protections ought not readily be set aside, undermined or diminished. It is in the interests of justice generally that litigants and, in particular, litigants in native title proceedings, can have some confidence that, when confidential and secret information is disclosed, the confidentiality and secrecy will be protected. A principal means by which the Court seeks to achieve that is by limiting the dissemination of the material and use to which the information can be put. As I indicated earlier, it is reasonable to infer that that was the purpose of Mansfield J when he made the orders on 10 December 2014.

35    The Commonwealth also raised the prospect that the Court may choose not to receive the material into evidence on the summary judgment application in any event. It referred, in this respect, to s 135 of the Evidence Act 1995 (Cth). In the view I take, it is not necessary to consider that submission. It would, in any event, be difficult to do so without having the material sought to be tendered before the Court.

36    For these reasons, I refuse the interlocutory application of the Barngarla and the Nukunu, filed on 11 February 2019.

Associate:

Dated:    28 February 2019

SCHEDULE OF PARTIES

SAD 6011 of 1998

First Applicant

Barngarla Native Title Claim (SAD6011/1998)

Second Applicant

Nukunu Native Title Claim (SAD6012/1998)

Third Applicant

Kokatha #3 Native Title Claim (SAD83/2016)