FEDERAL COURT OF AUSTRALIA

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 6) [2019] FCA 1711

ORDERS

THE COURT ORDERS THAT:

1.    The date for compliance with orders 2 and 3 of the orders made on 15 August be extended until 10 September 2019.

Discovery

2.    Each of the cross-claimants is to inform the applicant by 25 October 2019 whether they seek standard discovery under r 20.14 or non-standard discovery under r 20.15 of the Federal Court Rules 2011 (Cth) and, if the latter, serve details of the discovery requested.

3.    The applicant is to inform each of the cross-claimants by 1 November 2019 whether it seeks standard discovery under r 20.14 or non-standard discovery under r 20.15 of the Rules, and, if the latter, serve details of the discovery requested.

4.    Pursuant to Part 10 of the Central Practice Note (CPN-1), the parties are to confer and attempt to reach agreement as to the discovery to be given, and a protocol for discovery (including any regime needed to deal with confidentiality).

5.    The parties are by 13 November 2019 to provide to Justice McKerracher’s Associate, and serve, their respective requests for discovery, including indications as to which aspects are agreed or not agreed.

6.    The matter be listed for a case management hearing on Friday, 15 November 2019 at 9.30 am (AWST) to address those matters of discovery not agreed to between the parties.

Trial dates

7.    Within 7 days of these orders, the parties are to provide a list of available dates for trial between 6 April and 31 July 2020 of one week.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    On 15 August 2019, judgment was delivered in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 4) [2019] FCA 1275 (BTAC (No 4)). The judgment concerned an application brought by the State of Western Australia, relevantly being the third cross-claimant in this matter, seeking an order that the second, third and fourth cross-claims (the cross-claims) be heard and determined prior to the further programming or hearing of the principal proceeding and the first cross-claim. Buurabalayji Thalanyji Aboriginal Corporation (BTAC), relevantly being the second, third and fourth cross-respondent, opposed a separate hearing of the cross-claims. I found in the favour of the State.

2    Orders were made in BTAC (No 4) requiring the parties to file a minute of consent orders programming forward the hearing of the cross-claims, if a minute could not be agreed between the parties, opposing minutes. Consensus was not achieved. The parties sought leave to file written submissions in support of their proposed programming orders. I granted leave.

3    Fortunately, the dispute between the parties is relatively confined. The key points of difference between the parties’ competing minutes are:

(a)    the scope of discovery;

(b)    the timing of discovery (whether before or after the filing of lay evidence); and

(c)    whether it is possible to estimate the length of the hearing and hence to attempt to list a hearing date now and make associated programming orders.

DISCOVERY: BY WHOM AND ITS SCOPE

4    Pursuant to r 20.11 of the Federal Court Rules 2011 (Cth), a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. This principle reflects the overarching purpose of civil practice and procedure of the court stated in s 37M of the Federal Court of Australia Act 1976 (Cth).

5    The intent of the Rules to prevent unnecessary discovery is emphasised by r 20.12, which provides that a party must not give discovery unless the Court has made an order for discovery.

6    Standard discovery in this Court is controlled by the ‘directly relevant’ test prescribed by r 20.14(1) of the Rules, which is intended to be more limited in scope than discovery under the ‘train of inquiry’ test derived from Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55: see, for example, Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2018] FCA 1058 per Besanko J (at [5]-[12]).

7    It will be incumbent on the party seeking particular discovery to satisfy the Court that the document should be discovered in the circumstances of the case. In addition to the documents being relevant, the Court needs to be satisfied that discovery of the document will facilitate the efficient conduct of the proceedings.

8    The cross-claimants’ orders make no provision for discovery by the cross-claimants. That is, BTAC contends, inequitable and illogical. As moving parties, the cross-claimants contend that certain of BTAC’s claims are for ‘Native Title Compensation’ as defined in cl 1 of the Native Title Agreement (NTA) and hence are the subject of a release and indemnity not to sue detailed in cl 19 of the NTA: see BTAC (No 4) (at [11]-[18]).

9    Speaking broadly, those claims arise from the mining of fill material and BTAC contends that the mining needed to be authorised by a mining lease, was not authorised by the mining lease of Onslow Salt Pty Ltd (being the fourth cross-claimant) and no other mining lease was ever granted. BTAC also contends that the mining was not authorised by ‘the Purported Approval’ (as defined in the pleadings), which was invalidly given, and which was in any event purportedly granted by the State with knowledge that Onslow Salt’s stated ‘flood minimisation’ pretext was false and concealed its real purpose of selling fill material to Chevron Australia Pty Ltd, being the second cross-claimant. BTAC contends that such illegal conduct did not fall within the definition of Native Title Compensation, nor the scope of the releases in cl 19 of the NTA. So much has been clear since the separate hearing was agitated: BTAC (No 4) (at [72]).

10    Those claims are likely to be settled in a final and binding manner on the separate hearing. BTAC is entitled to discovery of relevant documents in order to allow it procedural fairness in meeting and defeating the cross-claims, as it will likely not have another chance to raise these points. Discovery is thus necessary for the just resolution of its defences to the cross-claims. Discovery is necessary from the cross-claimants, BTAC says, because there is no other basis for accessing those documents.

11    BTAC identifies that discovery will go to:

(a)    the legality of the mining operations and of the validity of the Purported Approval, including Onslow Salt’s and the State’s states of mind (respectively falsity and knowledge of falsity), and the illegitimacy of the pretext of flood mitigation;

(b)    the statements made by Chevron to BTAC that the NTA did not provide consent to mining or a grant of a mining lease and would not prevent BTAC from seeking compensation (including a royalty) pursuant to any mining lease for fill material granted over land subject to BTAC’s native title rights, which underlies the estoppel and the Trade Practices Act case raised in the defences to the cross-claims; and

(c)    knowledge by Chevron of the background facts against which the NTA must be read and whether ‘construction’ of the Wheatstone Project encompassed mining on land for salt production subject to Onslow Salt’s evaporites mining lease.

Consideration

12    The Court’s Central Practice Note (CPN-1) sets out some of the fundamental principles concerning the National Court Framework, together with key principles of case management. Pt 10 of the CPN-1 concerns discovery. Relevantly, it provides (at [10.2]-[10.3] and [10.5]):

10.2    Discovery is dealt with in Part 20 of the Federal Court Rules, with which parties should be familiar. In particular, it is to be recalled that no party is to give, and so no party has a right to, discovery (in the sense of provision of a list of documents under the Federal Court Rules) without an order (r 20.12). A Discovery Applicant should not make a Request unless it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible (r 20.11).

10.3    Discovery can be extremely burdensome. Matters in some NPAs will rarely need discovery. Where discovery is necessary, the Court expects the parties and their representatives to take all steps to minimise its burden. This involves co-operation between the parties. Informal exchange of documents may minimise the use of formal procedures. Parties should also consider the possible benefits of utilising innovative discovery techniques, including the Redfern Discovery Procedure set out in paragraphs 8.4 to 8.7 of the Commercial and Corporations Practice Note.

…

10.5    Prior to the Discovery Applicant approaching the Court with a Request, the Court expects that the parties will have discussed discovery issues between them and, if possible, agreed on a protocol for discovery. Such a protocol may involve consensual measures agreed to by the parties which may obviate the need for strict compliance with the Federal Court Rules (such as avoiding the need for a list of documents). The Court will consider the parties’ suggestions and may approve them if the Court considers them appropriate.

13    Orders should be made for a co-operative approach between the parties regarding discovery, with a mechanism to resolve disagreement. I apprehend that there may well be some disagreement given the history of these proceedings. BTAC’s minute contemplates the following orders for discovery:

…

6    Each of [Onslow Salt, Chevron and the State] is to inform [BTAC] by 27 November 2019 of whether they seek standard discovery under Rule 20.14 or non-standard discovery under Rule 20.15 and, if the latter, serve details of the discovery requested.

7    [BTAC] is to inform each of [Onslow Salt, Chevron and the State] by 4 December 2019 of whether it seeks standard discovery under Rule 20.14 or non-standard discovery under Rule 20.15, and, if the latter, serve details of the discovery requested.

8    Pursuant to part 10 of [CPN-1], the parties are to confer and attempt to reach agreement as to the discovery to be given, and a protocol for discovery (including any regime needed to deal with confidentiality).

9    The parties are by 18 December 2019 to provide to the Associate to Justice McKerracher and serve their respective requests for discovery, including indicating which aspects are agreed or not agreed.

10    If any aspects of discovery are not agreed:

(a)    the party making the request is to file and serve submissions concerning their request by 10 January 2020;

(b)    the party or parties opposing the request are to file and serve responsive submissions by 17 January 2020; and

(c)    the party making the request is to file and serve submissions in reply by 24 January 2020.

…

14    Chevron has identified the categories of discovery it seeks:

4    Within 14 days [BTAC] is to give standard discovery of categories of documents pursuant to Rule 20.14 of the [Rules], being limited to all documents in the control of [BTAC] evidencing:

(a)    documents relating to the “background facts forming part of the factual matrix” to the [NTA], including (but not limited to) as pleaded in paragraph 4(b)(ii)(B), (C) and (D) of [BTAC’s] Amended Defence to the Second Cross-claim; and

(b)    documents relating to the supervision of the removal of fill material by [BTAC] and the Thalanyji People, as pleaded in paragraph 16(a)(iv) of the [BTAC’s] Amended Reply.

15    Onslow Salt largely concurs with Chevron’s proposed categories (with some amendment to 4(a)) but proposes additional categories (specifically, 4(c)-4(e)):

4    Within 14 days [BTAC] is to give standard discovery of categories of documents pursuant to Rule 20.14 of the [Rules], being limited to all documents in the control of [BTAC] evidencing:

(a)    documents relating to the “background facts forming part of the factual matrix” to the [NTA], including (but not limited to) as pleaded in paragraph 4(b)(ii)(B), (C) and (D) of [BTAC’s] Amended Defence to the Second Cross-claim and paragraph 8(a)(ii)(B), (C) and (D) of [BTAC’s] Amended Defence to the Third Cross-claim;

(b)    documents relating to the supervision of the removal of fill material by [BTAC’s] and the Thalanyji People, as pleaded in paragraph 16(a)(iv) of [Chevron’s] Amended Reply;

   (c)    documents relating to:

(i)    the proposed removal of fill from areas on Onslow Salt’s Mining Lease Area (as pleaded in paragraph 1 of the Fourth Cross-claim); and

(ii)    the removal of fill from those areas,

including (but not limited to) the heritage surveys pleaded in paragraph 1(a) of the [BTAC’s] Defence to the Fourth Cross-claim, and any documents involved in the preparation for and follow-up from those surveys;

(d)    documents recording exchanges between representatives of the Thalanyji People and [BTAC] about the activities of the Second Cross-Claimant in removing fill from areas on Onslow Salt’s Mining Lease Area, including (but not limited to) those pleaded in paragraph 1 of [BTAC’s] Reply; and

(e)    documents relating to the representations as pleaded in paragraph 25 of [BTAC’s] Amended Defence to the Third Cross-claim.

16    The State agrees with the minute proposed by Onslow Salt and the additions Onslow Salt proposes to Chevron’s minute.

17    That discovery is necessary is clear. That all parties may be required to provide discovery is also clear. However, I am far from satisfied that, as contemplated by CPN-1, the parties are in a position to define categories of discovery or that they have the appropriate and desirable consensus about how issues with discovery, which are likely (though regrettably) inevitable, ought be resolved. Having regard to these factors and the parties’ arguments, I consider the appropriate orders are these:

(1)    Each of the cross-claimants is to inform the applicant by 25 October 2019 whether they seek standard discovery under r 20.14 or non-standard discovery under r 20.15 and, if the latter, serve details of the discovery requested.

(2)    The applicant is to inform each of the cross-claimants by 1 November 2019 whether it seeks standard discovery under r 20.14 or non-standard discovery under r 20.15, and, if the latter, serve details of the discovery requested.

(3)    Pursuant to Pt 10 of CPN-1, the parties are to confer and attempt to reach agreement as to the discovery to be given, and a protocol for discovery (including any regime needed to deal with confidentiality).

(4)    The parties are by 13 November 2019 to provide to my Associate and serve their respective requests for discovery, including indications as to which aspects are agreed or not agreed.

(5)    The matter be listed for a case management hearing on Friday, 15 November 2019 at 9.30 am (AWST) to address those matters of discovery not agreed to between the parties.

TIMING OF DISCOVERY

18    BTAC’s minute contemplates a timeline by which evidence would be filed before discovery, relying on the observations of Perram J in Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 1) [2014] FCA 765 (at [20]-[21]):

20    The Australian Company sought discovery in relation to 10 specified categories. At this stage the pleadings have not closed and no evidence has been proffered by either party. Ordinarily, discovery would not be ordered this early in the case. The process of delivering first pleadings and then evidence has the practical effect of reducing the issues between the parties. More generally, there is tendency for the issues in dispute between parties to reduce the longer a case is on foot (although this is not an invariable principle – some cases, like bad wine, just get worse). Postponing discovery is, therefore, usually likely to reduce the ambit of discovery.

21    For that reason, it is regarded in many quarters as sensible to require parties to put on their evidence before seeking discovery. Whilst this will generally be the correct approach it cannot be a universal one. There will be some cases where it is unfair to require evidence to be put on before discovery takes place. ...

19    BTAC seeks orders that evidence be filed prior to discovery and that conferral regarding discovery occur only after the parties have filed and served their evidence.

20    I do not consider this is an appropriate case for such a course.

21    It is not the lay or expert evidence which defines the scope of discovery. Rather, it is the pleadings which define the issues in dispute and, therefore, whether a document is discoverable or not. In Anchorage Capital, Perram J stood over generally an application for discovery on the understanding that it would be restored when certain evidence had been filed. However, that was in a context where the pleadings had not yet closed. This case is very different, where the pleadings have long since been closed.

22    If discovery is provided after the filing of evidence, it is likely that parts of the evidence filed would be rendered less useful or unnecessary, whilst other discovered documents will not be addressed in evidence when they ought to be. Orders for evidence after discovery will afford the parties the best opportunity to adduce their evidence completely, which will be of greater utility at trial than evidence which has been filed prior to discovery being given.

23    In this case, the detailed pleadings (that is, the cross-claims) more than sufficiently set out the issues in dispute and provide the framework for discovery.

24    In my view, notwithstanding what was said in obiter in Anchorage Capital (at [21]), the usual adversarial process is for discovery to be given before the filing of evidence, particularly where the inquiry is limited in scope, as it plainly is in this case. But as Anchorage Capital shows, it is always a matter of selecting the procedure to suit the case.

25    The nature of the claims in estoppel and statutory breach will almost certainly require witnesses to speak to documentary evidence, including any relevant exchanges between the parties during the negotiation of the NTA.

26    BTAC does note that it may need to seek further discovery after receiving Chevron’s responsive evidence to ensure that BTAC is not deprived of the chance to test the case made against it in relation to the estoppel and Trade Practices Act claims. The same may be true of other issues in dispute. This may be the case and it is why I contemplate programming orders that task the parties with working towards a protocol for discovery. However, I am not satisfied the filling of evidence should precede discovery.

TRIAL DATES FOR THE HEARING OF THE CROSS-CLAIMS

27    BTAC’s minute does not contemplate a trial date. The cross-claimants’ minutes contemplate orders to the following effect:

3    Within 7 days of these orders being made, during which time the parties are to advise the Associate to the Honourable Justice McKerracher of their unavailable dates for a trial between the date of these orders and 30 June 2020, the trial of the second, third and fourth cross-claims (Trial) be listed on a date to be fixed, on an estimate of two days.

28    Their minutes also contemplate timetabling orders consequential to the listing of trial dates, including pre-trial conferences, the filing of written submissions and trial bundles and the preparation of authorities.

29    BTAC’s position is that it is not yet known whether, and if so how many lay and expert witnesses will be called. It is not clear how extensive any points of difference between the respective experts may be. BTAC takes issue with the respondents’ timetable making no provision for expert evidence or a conclave (and one cannot sensibly be ordered yet), where the amount of hearing time needed to deal with expert evidence cannot be determined. BTAC’s position is that it is premature at this stage to list this matter for trial and make the associated programming orders sought by the cross-claimants.

30    BTAC’s position is that the length of the hearing cannot presently be accurately determined. There is no point trying to set down a hearing, or to make programming orders. Rather, the appropriate order is to hold a case management hearing after evidence and discovery have been completed. At that point, further mediation can be considered, the length of a trial might be able to be estimated and, if so, a trial date can be sensibly chosen. Programming orders can then be made.

31    There is much in BTAC’s submission that there are many as yet unknowns in the scope of the hearing of the cross-claims. I doubt that two days will be sufficient. I would rather reserve more time to limit the risk of a split hearing. However, I am conscious of the time that has elapsed since this complex proceeding first commenced on 20 July 2017. I think there is benefit in fixing trial dates, at least to concentrate the parties’ minds with respect to achieving some of these milestones. I am also conscious of prior difficulties with listing interlocutory applications given the number of parties and the limited availabilities of their counsel. I will make an order that within 7 days of these orders, the parties are to provide a list of their available dates for trial between 6 April and 31 July 2020 of one week.

32    I will list the hearing of the cross-claims for one week, not because I in any way seek to encourage the parties to work towards filling that time period, but because I would rather have ample time and not further delay in this proceeding by leaving things part heard.

33    By the case management hearing in November 2019, the parties should have had ample time to consider the scope of discovery, the likely expert evidence and lay witnesses required and be in a position to address the Court on programming orders for trial which, by that time, will be set. Should the parties agree in the interim, I will of course consider a minute of proposed orders in Chambers.

Associate:

Dated: 17 October 2019