FEDERAL COURT OF AUSTRALIA

Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115

ORDERS

ON 9 DECEMBER 2019, THE COURT ORDERS THAT:

1.    Lester Lorraine Barnard, Delia Fay Kemppi and Linda Jane Bobongie (the joinder parties) be joined as respondent parties in this proceeding.

2.    By close of business on 13 December 2019, the joinder parties are to file a native title determination application supported by a statement of claim.

3.    By close of business on 13 December 2019, the joinder parties are to file a defence to the statement of claim in this proceeding.

ON 12 DECEMBER 2019, THE COURT ORDERS THAT:

1.    Queensland South Native Title Services Limited (QSNTS) assign a lawyer who has not previously acted for the Applicant in this proceeding before 20 September 2019 to be the solicitor on the record for the Applicant.

2.    No QSNTS lawyer who has previously acted for the Applicant before 20 September 2019 will instruct Counsel in the proceeding.

3.    The Principal Legal Officer of QSNTS, Mr Tim Wishart, and the Deputy Principal Legal Officer, Ms Andrea Olsen, will have no further involvement in the proceeding.

4.    Just Us Lawyers assign a lawyer who has not previously acted for the Applicant in this proceeding (as constituted from time to time) to be the solicitor on the record for the Joinder Parties.

5.    No lawyer who has previously acted for the Applicant (as constituted from time to time) will instruct Counsel in this proceeding.

6.    The Principal of Just Us Lawyers, Mr Colin Hardie, is to have no further involvement in this proceeding.

7.    The date in Order 2 of the Orders made on 9 December 2019 is amended from 13 December 2019 to 20 December 2019.

8.    The date in Order 3 of the Orders made on 9 December 2019 is amended from 13 December 2019 to 20 December 2019.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J

1    These reasons concern two groups of applications. The first group comprises three applications for joinder as respondent parties in this proceeding. The second is an application for orders to prevent Mr Hardie, the lawyer for the joinder applicants, from continuing to act for those parties. I have decided to deliver these reasons together because the two applications are closely related. I will deal with the joinder applications first.

2    By three interlocutory applications filed on 4 December 2019, Ms Delia Kemppi, Ms Lester Barnard and Ms Linda Bobongie applied under s 84(5) of the Native Title Act 1993 (Cth) (the NTA) to be joined as respondent parties in this proceeding. The authorised applicant under the NTA of the Clermont-Belyando claim group, who I will refer to, where appropriate, as the “CB applicant”, opposes the three applications. The State of Queensland, the main existing respondent party, neither consents to, nor opposes, them.

3    I recently reviewed the principles pertinent to a joinder application of this kind in Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]–[12]. In brief, an applicant needs to show that he or she has a sufficient interest and that it is in the interests of justice that the joinder be made.

4    Both the CB applicant and the State accept that each of the three joinder applicants has a sufficient interest to be joined as parties in this proceeding. The only question, therefore, is whether it is in the interests of justice that the joinder be made.

5    As with any discretion of this nature, it must be exercised judicially, having regard, among other things, to the objects and purposes of the NTA (see Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [26] and [28]). In particular, that includes the object to recognise and protect native title as set out in s 3(a) of the NTA. Furthermore, in the peculiar procedural context of this proceeding, which I am about to describe in some detail, I consider it must have regard to the overarching purpose of civil practice and procedure expressed in Part VB of the Federal Court of Australia Act 1976 (Cth). That includes the just determination of this proceeding, efficiently, in a timely manner and at a cost that is proportionate to the importance and complexity of the matter in dispute.

6    This proceeding relates to a native title determination application made on behalf of the Clermont-Belyando native title claim group. It is no understatement to describe it as an important and complex piece of litigation. Furthermore, like many, if not most, native title determination applications of its kind, it has an exceedingly long history. It was originally filed approximately 15 and a half years ago in 2004 on behalf of the Wangan and Jagalingou People. Since then it has been amended on a number of separate occasions. Apart from noting that is likely to explain some of the delay that has occurred in this proceeding over the past decade and a half, it is unnecessary to record the details of those amendments, or what it was that caused them to be made. The most recent set of amendments is, however, quite significant to these applications so I will describe them in some detail shortly.

7    By late 2017, when it became apparent that the application was unlikely to be resolved by a consent determination, I made orders aimed at achieving a trial of the proceeding in 2018. That trial was to proceed before Jagot J. For various reasons that are not presently material, it did not take place. In May this year, I set the matter down for a hearing to commence in Clermont in Central Queensland on 2 December 2019, at which time I was to hear evidence from lay witnesses. It was then intended that evidence would be taken from expert witnesses at a later and separate session in 2020.

8    On 31 August and 1 September this year, the newly described Clermont-Belyando claim group held a meeting to consider their claim. During that meeting, among other things, the claim group authorised and directed their applicant to apply to the Court to amend the description of the claim group for this application. Such an application is provided for under s 64 of the NTA and was anticipated in the trial programming orders made on 24 May 2019 (see Order 4). That amendment application was duly filed and, since it was not opposed, I made orders accordingly on 20 September 2019.

9    As I foreshadowed before, one of the effects of those orders is critical to the present applications. It was to change the description of the composition of the claim group in this application to remove from it the descendants of six apical ancestors: Daisy Collins, Nellie Digaby, Annie Flourbag, Katy of Clermont, Maggie of Clermont (also known as Maggie Miller and Nandroo) and Momitja. This directly affected each of the present joinder applicants. That is so because Ms Kemppi claims to be a descendant of Daisy Collins, Ms Bobongie claims to be a descendant of Maggie of Clermont and Ms Barnard claims to be a descendant of Nellie Digaby. It is also important to record that, according to exhibit R2 that was tendered at the trial last week, Maggie of Clermont was added to the list of apical ancestors by an amendment made to the description of the composition of the claim group, then described as the Wangan and Jagalingou claim group, on 30 September 2013. That followed an authorisation meeting held on 25 May 2013. She continued to hold that status until her removal by the 20 September 2019 orders. As for Daisy Collins and Nellie Digaby, they were added to the list of apical ancestors by an amendment made to the description of the composition of the claim group, then still described as the Wangan and Jagalingou claim group, on 14 August 2014. They, too, continued to hold that status until the orders made just short of three months ago.

10    The trial of this matter commenced on 2 December 2019 and proceeded for five days in Clermont. During that period, evidence was taken in whole or in part from four lay witnesses, three called by the CB applicant and one interposed by the State. It should also be noted that, in the lead up to the trial, the State gave notice that it proposed to call Ms Kemppi and Ms Barnard as witnesses at the trial.

11    The trial continued last Monday, 9 December 2019 in Brisbane for the continuation of the cross-examination of Mr Patrick Malone. At the commencement of that session, Mr Hardie, the lawyer for the three joinder applicants, made the present applications. After hearing from the parties and adjourning to allow their lawyers to consult, I made orders allowing the joinders on certain conditions. Among other things, those orders allowed for Mr Hardie to cross-examine Mr Malone and any subsequent witnesses called at the trial. In a moment, I will outline the factors that persuaded me to exercise that discretion. Before I do so, I will complete the procedural history of this trial because that is relevant to the other application to which I will turn shortly.

12    The cross-examination of Mr Malone by Mr Lloyd SC for the State continued throughout the afternoon of Monday, 9 December 2019 and into the morning of Tuesday, 10 December 2019. When that was completed, Mr Hardie began his cross-examination of Mr Malone. His seventh question was as follows:

So how do you know … if, to be a member of the claim group, you have to be descended from those people that were the old people from the country at about the time of the effective sovereignty, how do you know who they are?

13    Mr Malone’s response was:

I can only talk about my own family, and – and it’s going back and – and looking at the records. I think my son Jonathan [sic – Jonathon] and I talked to you about – when you worked with Queensland South [Native Title Services] … about the relationship that we had with the claim when we first came onto the claim.

14    This response prompted Mr Glacken QC, for the CB applicant, to seek a short adjournment. Following that adjournment, he made the application which I mentioned at the outset of these reasons directed to preventing Mr Hardie from continuing to act for the joinder applicants.

15    Queensland South Native Title Services (Queensland South), it should be noted, is a native title representative body under Part 11 of the NTA. It has acted for the Wangan and Jagalingou claim group, now described as the Clermont-Belyando claim group, since the inception of this claim, discharging its facilitation and assistance functions under s 203BB of the NTA.

16    On the application affecting Mr Hardie, he gave evidence that he was the Principal Legal Officer of Queensland South from 2006 until about March/May/June 2010. He said that, as the Principal Legal Officer, he was responsible for the supervision of 15 or 16 matters and the eight solicitors on Queensland South’s staff who were working on those matters. He claimed that he did not have the day-to-day conduct of the Wangan and Jagalingou claim, as it was then known, but rather supervised the solicitor who did. He said he could not recall receiving instructions from Mr Jonathon Malone, that is, Mr Malone Junior, or for that matter, Mr Patrick Malone, Mr Malone Senior.

17    However, he acknowledged having attended and addressed an authorisation meeting of the Wangan and Jagalingou claim group in February 2010 in his capacity as the Principal Legal Officer of Queensland South. In cross-examination by Mr Glacken, he recounted his recollection of that event as follows:

And I suggest to you that the purpose of addressing the meeting was to make recommendations about the composition of the claim group?---Yes, in the broad sense. It would have been, having undertaken the research, Queensland’s – my position would have been to advise the claim group to accept the anthropologist’s recommendations.

And I suggest to you, at this meeting, you also reported upon genealogical research done to date, and a need for further research?---I don’t think so.

I suggest - - -?---I don’t think I would be – consider myself qualified to report on genealogical advice.

Well, do I – I suggest to you that this meeting that you report upon what further research should be done for the carriage of the matter?---I may have done that. I may have suggested that further research be conducted.

18    Finally, I should record a number of issues that emerged during the hearing of this application that have a bearing on its outcome. First, Mr Malone Senior was in Court during the hearing of Mr Hardie’s joinder applications and, I infer, must have been well aware of the circumstances underpinning the application that Mr Hardie no longer act for those joinder applicants. I asked Mr Glacken to explain why this matter was not raised at that time. To be fair to Mr Malone Senior, as a layperson he may not have been aware of the import of Mr Hardie’s earlier involvement. Nonetheless, neither that explanation, nor any other, was provided.

19    Secondly, since Queensland South has acted for the Wangan and Jagalingou, or more recently Clermont-Belyando, claim group throughout the life of this application, it became obvious during the hearing of the present applications that it must have acted for that claim group when it included the apical ancestors of the three joinder applicants. That raised the question whether it could now act against the interests of those persons in this proceeding. It also raised for consideration the provisions of s 203BB(4) of the NTA. That, in turn, gave rise to similar concerns about Queensland South’s involvement in these proceedings as those raised by the CB applicant in respect of Mr Hardie’s involvement. I will return to these matters later in these reasons.

20    For the time being, I will deal with the three joinder applications. They are supported by affidavits from each of the joinder applicants which briefly outline their interests (evidence which is now irrelevant following the concessions mentioned above) and their explanations for their delay in applying to be joined as respondent parties. Mr Glacken relied on an affidavit by Ms Olsen, the Deputy Principal Legal Officer of Queensland South, in which she described her dealings with the joinder applicants since May 2019 concerning the events relevant to the present applications. I have had regard to the contents of those affidavits.

21    Having done so, the following are the countervailing matters that I had regard to in deciding to exercise my discretion to allow the joinder of the three joinder applicants in this proceeding. To begin with, I find, on the evidence, that each of the joinder applicants was aware that she was to be, and subsequently had been, removed from the claim group as a result of the deliberations at the meeting on 31 August and 1 September 2019 and the orders of 20 September 2019. I also do not consider they have given a satisfactory explanation for their delay in not acting immediately to make their present applications. Ordinarily, these conclusions would be fatal to a late application such as these (see, for example, Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 (Alvoen) at [27]).

22    However, I consider the following matters dictate a different conclusion in this matter. First, I do not consider the three joinder applicants fall into any of the categories that would ordinarily justify a refusal of their application, for example, they being dissentient members of the claim group (see Alvoen at [28] for a full list of those categories).

23    Secondly, and more importantly, the fact that their apical ancestors had been included in the claim group description until at least three months ago provides each of them with a strong prima facie case that they may have native title rights and interests in the claim area for the Clermont-Belyando application. Whether they do will fall to be determined in this proceeding. That being so, they stand to suffer a real and significant prejudice if they are unable to assert and protect those claimed rights and interests from a native title determination in this proceeding. On the other hand, apart from the costs and delay that would be occasioned if this trial were to be adjourned as a consequence of their late joinder, neither the CB applicant, nor the State, has pointed to any relevant prejudice.

24    In those circumstances, as the Full Court said in Gamogab v Akiba (2007) 159 FCR 578; [2007] FCAFC 74, per Gyles J at [59] and [65], with Sundberg J agreeing at [50]: “[t]he remedy does not lie in excluding persons whose interests may be affected” but rather, in crafting appropriate case management measures to address the situation. It was for these reasons that I adjourned the trial to allow the parties to draft such orders. After considering those orders, I was satisfied that they allowed the trial to continue with minimum prejudice being occasioned to the CB applicant and the State, while still allowing the three joinder applicants to be involved as respondent parties. If any further measures become necessary during the course of the trial, I will consider those when they arise.

25    I now turn to the CB applicant’s application to prevent Mr Hardie continuing to act for the three joinder applicants. Mr Glacken put that application on two bases: that there is a real and sensible possibility of the misuse of confidential information; and relying upon the inherent, or in this Court implied, jurisdiction to ensure the due administration of justice to protect the integrity of the judicial process (see Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; [2014] FCA 1065 at [34] and [37] per Beach J and, on the former, see also Farrow Mortgage Services Pty. Ltd. (In liq.) v Mendall Properties Pty. Ltd. and Others [1995] 1 VR 1 at 5 per Hayne J and on the latter, see also Sent and Primelife Corporation Limited v John Fairfax Publication Pty Ltd [2002] VSC 429 (Sent) at [112]–[113] per Nettle J).

26    Mr Glacken relied upon an affidavit by Mr Malone Junior. In that affidavit, Mr Malone Junior said:

 1.    I am a member of the claim group represented by the Applicant.

2.    Since March 2005 my father Patrick Malone has been a member of the Applicant.

3.    From time to time I have assisted my father in the conduct of the claim and assisting him in making decisions about its conduct. In the course of doing that, I met and had dealings with Colin Hardie when he was the principal legal officer at Queensland South … At those times, I understood him to be the solicitor for the Applicant.

4.    Those dealings included giving instructions to Mr Hardie and receiving advice from Mr Hardie on changes to the claim group description used in the native title claim. The instructions included providing historical and contemporary evidence to support our links to country. That included a meeting of the claim group in February 2010 that I attended.

5.    I recall that the claim group decided to change the claim group description including by adding the descendants of Jack and Jim Malone and Maggie Miller (or Maggie of Clermont).

6.    I recall that at the meeting Colin Hardie reported on anthropological findings in an anthropological report and gave advice on the proposal to change the claim group, and advice on further research to be done in relation to the composition of the claim group.

7.    These changes were authorised by the claim group at the 2010 meeting and were later put in place by Court orders. I am informed that on 28 May 2010 the Court made an order to replace the Applicant, but it was not until much later that the claim group description was changed to add additional apical ancestors including Jack and Jim Malone.

27    He also relied upon Mr Hardie’s evidence about his participation in the meeting in February 2010, which I mentioned earlier. Mr Glacken sought to characterise the manner in which the claim group had approached the changes to the claim group at that meeting as “getting to know you factors”, referring to Sent (at [67] and [70]). He also emphasised that it did not matter that Mr Hardie no longer recalled his involvement in that meeting, or with Mr Malone Junior, or the Wangan and Jagalingou claim group. Additionally, he claimed that the Court should apply a degree of flexibility in identifying the confidential information, relying upon Sent at [66]–[67].

28    For the following reasons, I do not consider the CB applicant has made out either of these two bases. I will deal with them in order. In the recent decision of Nash v Timbercorp Finance Pty Ltd (in liq), in the matter of the bankrupt estate of Nash [2019] FCA 957 (Nash) at [66], in the course of considering a similar application to the present one, Anderson J of this Court cited a number of authorities for the proposition that the confidential information the subject of an application of this kind must be identified with some precision. His Honour also quoted from one of those authorities, Durban Roodepoort Deep, Limited v Mark David Reilly and Glenn Robert Featherby As Administrators of The Deed of Company Arrangement of Laverton Gold NL (Subject to Deed of Company Arrangement) & Ors [2004] WASC 269 at [80] per Le Miere J as follows:

Before a court will grant an injunction to protect a client’s confidential information by restraining his former solicitor from acting against him, the former client must establish that the solicitor possesses confidential information and must identify the confidential information with precision and not merely in global terms. The client must identify the confidential information with some particularity. The degree of particularity required must depend upon the facts of the particular case. The confidential information must be identified with sufficient particularity to enable the court to determine whether the information is truly confidential, whether the confidential information which once existed, if it did, continues to be confidential and whether the confidential information is relevant to any issue in the current proceedings and might be used in those proceedings.

29    While Anderson J did not refer to Sent on this particular aspect, he did refer to the Full Court decision that Nettle J cited at [66] of that decision, namely Carindale Country Club Estate Pty Limited v Astill (1993) 42 FCR 307. The rationale expressed in these decisions for requiring a client to identify the confidential information concerned with some precision is, in my view, compelling. I respectfully agree with that approach and propose to apply it in this application.

30    In my view, Mr Malone Junior’s affidavit does not meet this identification test. The most direct description of the confidential information contained in it appears at [4], to the following effect: “[t]he instructions included providing historical and contemporary evidence to support our links to country”. This statement describes the “evidence” in the most general or global terms. It does not identify the source of the “evidence” concerned or provide any further details about it, for example, whether it was expert evidence from an anthropologist or lay evidence from a member or members of the claim group. It does not even identify whether it was in oral or written form and, if the latter, whether in the form of an expert report.

31    As for the “getting to know you factors”, Mr Glacken described them as the approach the claim group took to their decisions with respect to the composition of the claim group. He relied, in particular, on the meeting of the claim group which took place in February 2010, when it decided to accept the advice of anthropologists to make amendments to the composition of the claim group.

32    On this aspect, I should first note that, in Nash, Anderson J did not appear to require the same degree of precision, or particularity, with respect to these “getting to know you factors” (see at [68] and [72]). I will apply the same approach. I also accept that Mr Hardie’s memory, or lack thereof, of that meeting is irrelevant. It is not that meeting that is relevant, but rather the knowledge he gained of the character, personalities and idiosyncrasies of Mr Malone Junior and other members of the Wangan and Jagalingou claim group as a result of his involvement with them as the Principal Legal Officer of Queensland South.

33    However, the problem I have with this aspect is that I do not consider those factors are, in the circumstances of this matter, confidential. That is so for the following reasons. In my experience as a judge dealing with native title matters, I am aware that most, if not all, claim groups adopt the same approach, at least in part, when they are deciding whether to apply to amend a native title determination application to change the description of the composition of the claim group. That is to say, it is a commonplace approach to rely upon anthropological advice, at least in part, when making such a decision. So much is apparent from the references to this factor in many of the resulting amendment applications that are filed in this Court. The application that resulted in the 20 September 2019 orders in this matter provides a recent telling example.

34    Finally, even if neither of these conclusions is valid, I do not consider that either the confidential information proffered, or the “getting to know you factors”, have any relevance to any issue that has to be decided in this proceeding. In broad terms, each of the joinder applicants is seeking to establish that her recent exclusion from the claim group was wrong because each is descended from apical ancestors who held rights and interests in that land which are sourced in pre-sovereignty traditional laws and customs. I fail to see how Mr Hardie’s interactions with Mr Malone Junior, or the members of the claim group, approximately 10 years ago, or his attendance at a claim group meeting in February 2010, has any bearing on this issue. None of the joinder applicant’s ancestors was added or removed at that meeting, or at about that time. Further, there is no evidence that was an issue at about that time. Indeed, Maggie of Clermont was not added until 2013 and Daisy Collins and Nellie Digaby were not added until 2014. For these reasons, I do not consider the CB applicant has made out the first basis.

35    I turn, then, to deal with the second basis, the due administration of justice basis. On that basis, the test is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Hardie be prevented from acting for the joinder applicants (see Sent at [113] and Nash at [124]). As Anderson J noted in Nash, “[t]his basis for disqualification is an ‘exceptional one’ and ‘to be exercised with appropriate caution’, with due weight to be given ‘to the public interest in the client not being deprived of the solicitor of its choice’”. For the following reasons, I do not consider that that exceptional descriptor applies in this matter.

36    First, and without repeating them, the conclusions I have reached above about the first basis do not support this conclusion. Secondly, I have had regard to the circumstances I outlined earlier in which this application came to the fore, essentially as a result of an unresponsive answer given to questions asked by Mr Hardie early in his cross-examination of Mr Malone Senior leading to a corresponding difficulty with Queensland South’s acting for the CB applicant. Thirdly, during debate on this application, Mr Besley, who acts for Mr Hardie for the purposes of the application but is also a solicitor at Mr Hardie’s firm, Just Us Lawyers, informed me as follows: first, that Mr Hardie is the only solicitor in the firm holding a principal solicitor’s practicing certificate. Secondly, that none of the other solicitors in the firm has previously acted for any of the parties in this proceeding. Thirdly, that one of those solicitors will instruct Mr Freeman, a barrister who the firm has now retained to act for the joinder applicants. Fourthly, that beyond holding the practicing certificate necessary for the firm to continue to act, Mr Hardie will not have any further involvement with the matter.

37    The fourth reason for rejecting this second basis is that, if I were not to accept these measures and instead order Mr Hardie’s removal, that would not just deprive the joinder applicants of their lawyer of choice, but it would also most likely require an adjournment of this trial to allow them the opportunity to retain another lawyer. Given the history of this application which I outlined earlier, I do not consider that course serves the interests of the administration of justice. Put differently, having regard to all of these factors, I do not consider a fair-minded, reasonably informed member of the public would conclude that it is in the interests of justice to prevent Mr Hardie from acting for the joinder applicants.

38    For these reasons, I do not consider the CB applicant has made out either basis for obtaining an order that Mr Hardie no longer act for the joinder applicants in this matter.

39    Before closing, two further observations are appropriate. First, I consider the measures outlined by Mr Besley above should be encapsulated in a set of orders to guide the future representation of the joinder applicants. Secondly, now that I am aware that a similar position applies with respect to Queensland South and its current Principal Legal Officer, in order to attempt to prevent any further disruption to this trial, I consider a similar set of orders should be prepared and apply to them.

Associate:    

Dated:    13 December 2019

SCHEDULE OF PARTIES