FEDERAL COURT OF AUSTRALIA
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The first applicant is restrained from engaging Ronald Michael David Levy to appear as counsel for the first applicant in the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.
2. The first applicant is restrained from seeking or obtaining legal services from Ronald Michael David Levy in connection with the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.
3. There be no order as to costs.
4. The parties are to seek to agree case management consent orders in respect of the hearing and determination of the interlocutory application filed on 2 December 2019 by the Jawoyn Claim applicant seeking summary dismissal of the application for native title determination by the Katherine Families Claim applicant.
5. Liberty to apply on the giving of 48 hours’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
1 There are currently in the Court two competing and overlapping native title determination applications in respect of land and waters in and around the town of Katherine. One proceeding is entitled Lisa Mumbin v Northern Territory of Australia and has the Court file number NTD57/2017 (Jawoyn Claim). The other is Joshua Hunter v Northern Territory of Australia and has the Court file number NTD46/2018 (Katherine Families Claim). The two proceedings are being heard together.
2 The Katherine Families Claim has a long history. In 1999 and 2000 two native title determination applications were made on behalf of the Dagoman People. They were given Court file numbers NTD6002/1999 and NTD6001/2000 respectively (Original Katherine Claims). On 13 March 2018, the claim groups for the Original Katherine Claims resolved to discontinue those claims and to make a new claim over the same or substantially the same area. The Original Katherine Claims were discontinued on 15 November 2018 and on 16 November 2018 the Katherine Families Claim was commenced. Although the new claim had a native title claim group description which was not identical to the Original Katherine Claims, it was made on the same basis as those earlier claims, namely that at sovereignty the claim area was occupied by Aboriginal people who were associated with the Dagoman language group.
3 By way of an interlocutory application filed on behalf of the applicant in the current Katherine Families Claim, that applicant seeks to restrain the applicant in the Jawoyn Claim from:
(a) engaging Mr Ron Levy to appear as counsel in the “Katherine Proceeding”;
(b) seeking or obtaining legal services from Mr Levy of counsel in connection with the “Katherine Proceeding”; and
(c) using in the “Katherine Proceeding” any confidential information obtained by Mr Levy in the course of his employment with the Northern Land Council (NLC).
4 In brief, Mr Levy worked as a lawyer with the NLC from 1994 to 2014. He was an employed solicitor for part of that time and eventually became the Principal Legal Officer at NLC on 3 July 2000, a position which he held for the next 14 years. Although Mr Levy was not nominated as the solicitor on the record on the original filed applications for a determination of native title in the Original Katherine Claims, there is evidence which indicates that he had some involvement in the prosecution of those claims (which I will expand on below). At some point, it appears that Mr Levy became the solicitor nominated as the address for service for the applicants in Original Katherine Claims. The precise point in time cannot be identified. It is evident, however, that in November 2007 (by which time Mr Levy had become the Principal Legal Officer for the NLC), he filed or caused to be filed a notice of change of address for service in the Original Katherine Claims. That notice of change of address for service, which is dated 14 November 2007, names Mr Levy as the person to whom service should be directed. On 9 December 2014, Mr Levy filed or caused to be filed a notice of ceasing to act in each of the Original Katherine Claims (it is common ground that although the notice is dated 9 December 2012, that is in error and 9 December 2014 is the correct date).
5 Accordingly, it is clear that Mr Levy was the solicitor at the Northern Land Council who was nominated as the person to whom service of documents should be directed for the Original Katherine Claims for at least seven years, between 2007 and 2014. During that period, Mr Levy appeared for the Original Katherine Claims applicants in various Court directions hearings or case management conferences. The nature of his involvement in those claims during that period will be elaborated upon below, as well as the evidence which indicates the nature and extent of his involvement in the Original Katherine Claims prior to 2007.
6 In brief, the Katherine Families Claim applicant contends that the interlocutory relief sought by it should be granted on the basis that:
(a) by acting for the Jawoyn Claim applicant, there is a risk that there will be misuse of confidential information which Mr Levy possesses because of his earlier involvement in the Original Katherine Claims; and
(b) he has assumed a position which is hostile to his former client, the applicants in the Original Katherine Claims, and to the applicant in the Katherine Families Claim whom it is alleged is the successor to the applicants in the Original Katherine Claims, and that he has a conflict of interest.
7 The primary issues which arise for determination may be summarised as follows:
(a) has the applicant in the Katherine Families Claim discharged the onus it carries of demonstrating either basis for granting the relief it seeks;
(b) does the evidence demonstrate that the Katherine Families Claim applicant waived any objection it had to Mr Levy’s retainer; and
(c) should the Court in its discretion deny any relief because of unexplained delay by the Katherine Families Claim applicant in bringing its interlocutory application?
8 As noted, the Original Katherine Claims were lodged in 1999 and 2000. The native title claim groups were identical. Both claims covered various areas of land and waters in and around Katherine. The NLC, which is recognised as a representative body under the Native Title Act 1993 (Cth) (NT Act), provided assistance to the applicants in the Original Katherine Claims. A solicitor employed by the NLC, Mr Greg Carter, was identified on various early Court documentation as the contact person at the NLC. The applicant in the first of those claims comprised the following people: Jessie Brown, Ivy Brumby, Rhoda Brumby, Marie Dowling, Garry Manbulloo, Amy Marrapunyah and Julie Williams. The applicant in the other claim was Jessie Brown.
9 Following a meeting of the claim groups, NLC was instructed on 13 March 2018 to discontinue the Original Katherine Claims and to file a new native title determination application over the same or substantially the same areas. The new application was to be made on the same basis as the Original Katherine Claims, being that at sovereignty the claim area was occupied by Aboriginal people who were associated with the Dagoman language group. The membership of the claim group changed, however, which reflected further anthropological research into who were the descendants of the apical ancestors. The applicant in the Katherine Families Claim is comprised of Joshua Hunter, Carol Dowling, Billy Harney Jr and May Rosas on behalf of the Wubojgun-Jurugin-Wungayajawun, Jorrolam, Gayn-Jalarr, Wungayajawun-Wumelemelewun, Dumditja and Jambalawa groups.
10 At the interlocutory hearing, which was conducted over the telephone, affidavit evidence was given by Ms Shannon O’Connell, an anthropologist with the NLC, and who had worked on both the Original Katherine Claims and the current Katherine Families Claim. She deposed, and I accept, that she has a detailed knowledge of the changes to the description of the claim group between the Original Katherine Claims and the current claim. Ms O’Connell summarised the relevant changes as comprising:
(a) removal of four apical ancestors from the claim group description as a result of further anthropological research;
(b) adding four apical ancestors, again as the result of additional anthropological research; and
(c) moving one generation back in the genealogies of one ancestral group.
11 Ms O’Connell deposed that, based on this information, she was of the opinion that the claim group in the Original Katherine Claim “is substantively the same as the claim group in the Katherine Families Claim”. I accept that evidence (I will explain below why I rejected the Jawoyn Claim applicant’s objection to central parts of her evidence). I prefer Ms O’Connell’s evidence on this issue to a submission which was made on behalf of the Original Katherine Claims applicants at a previous case management hearing on 17 October 2018 that the proposed claim group in the current Katherine Families Claim is a “substantially different claim group”, a matter which was seized upon by the applicant in Jawoyn Claim in resisting the interlocutory application. I also reject the Jawoyn Claim applicant’s submission that the table which is attached to Ms O’Connell’s evidence is inconsistent with her opinion. I will elaborate upon that below.
12 The Original Katherine Claims were discontinued on 15 November 2018. The following day a new claim was filed by NLC-employed lawyers over substantially the same area. It has the file number NTD46/2018.
13 On 12 November 2019, the Court ordered that the Katherine Families Claim be heard together with the Jawoyn Claim as the “Katherine Proceeding”.
14 As noted, at the time of the filing of the Original Katherine Claims, Mr Levy was a solicitor employed by the NLC. Mr Daniel Wells, who is the current solicitor on the record for the applicant in the Katherine Families Claim, and who affirmed two affidavits, deposed that he had reviewed files held by the NLC in respect of the Original Katherine Claims and that they contain material which is subject to legal professional privilege. An issue which arises is who is entitled to assert legal professional privilege in respect of those materials.
15 While seeking not to waive any claim for legal professional privilege, Mr Wells gave evidence that, based upon his review of the NLC files in respect of the Original Katherine Claims, he considered that Mr Levy:
(a) was privy to, and a named recipient of, confidential communications concerning the assertion by the Jawoyn Association that the Jawoyn people are the holders of native title rights and interests in the area on which the town of Katherine is located, and concerning strategic approaches that might be taken in relation to the Jawoyn Association and its claimed interests in Katherine;
(b) was directly involved in the preparation, drafting and registration of the Original Katherine Claims, including in identifying the claim areas and the description of the native title claim groups. That involvement included being party to, or having access to, confidential communications between NLC legal and anthropological staff, consultants and native title claimants;
(c) communicated with Mr Carter, the solicitor on the record, about correspondence in July 1999 with the National Native Title Tribunal (NNTT) concerning the registration test in respect of one of the Original Katherine Claims;
(d) appeared in the Federal Court on behalf of the applicants in the Original Katherine Claims at various directions hearings and callovers between 2000 and 2014;
(e) was privy to, and a named recipient of, confidential communications concerning an indigenous land use agreement (ILUA) that affects land and waters covered by the Original Katherine Claims; and
(f) from 1999 to 2014, was privy to, and a recipient of, internal correspondence within the NLC regarding the progress and development of the Original Katherine Claims, including in respect of anthropological research.
16 Mr Wells provided a few documents from the NLC’s files which throw some light on the nature and extent of Mr Levy’s involvement in the Original Katherine Claims while he worked at the NLC (Mr Wells was understandably concerned not to prejudice the claim for confidentiality by divulging more material). Those documents comprised:
(a) a chain of email correspondence in which Mr Levy confirmed that he had reviewed a draft of the first of the Original Katherine Claims and stated that he considered that it was well drafted and in the right form for NNTT purposes;
(b) a draft of Schedule A to the first of the Original Katherine Claims which has annotations on it by Mr Carter based on comments he received from Mr Levy on 23 May 1999;
(c) a letter dated 1 July 1999 from the NNTT to Mr Levy;
(d) a draft letter dated 19 July 1999 from the NLC to the NNTT annotated with Mr Levy’s handwritten comments; and
(e) a copy of an email dated 17 August 1999 from Mr Carter to an NLC employed anthropologist which referred to discussions with Mr Levy regarding the Original Katherine Claims.
17 The Katherine Families Claim applicant also relied upon a letter dated 3 July 2000, in which Mr Levy advised the NLC’s professional indemnity insurance broker that a solicitor, Mr Brett Midena, had ceased employment with the NLC on 2 July 2000. Mr Levy signed the letter as Acting Principal Legal Adviser of the NLC. Furthermore, as noted, it was Mr Levy who filed the notice of change of address for service on 14 November 2007 in respect of various proceedings, including the Original Katherine Claims, and on 9 December 2014 he filed a notice of ceasing to act.
18 The Katherine Families Claim applicant also relied upon Mr Levy’s participation in a case management conference conducted by Judicial Registrar Colbran on 6 November 2019, where Mr Levy appeared for the Jawoyn Claim applicant. He advised Judicial Registrar Colbran that that applicant intended to apply to have the Katherine Families Claim struck out. His oral submissions included the following statements:
(a) “It is entirely clear that there will not be any Aboriginal witnesses who will say that Katherine was Dagoman at the time of effective sovereignty.”
(b) “We say that [Professor Francesca] Merlan has gone on a frolic. She is on cloud cuckoo land.”
(c) “We are somewhat buoyed by the delegate’s decision not to accept the Katherine Families’ claim for registration.”
(d) “The Dagoman claim is hopelessly not authorised. It is not capable of being authorised.”
(e) “If we do succeed [in the application for summary dismissal], the rest will be resolved by consent [with the First Respondent].”
19 The case management conference before Judicial Registrar Colbran on 6 November 2019 was the first occasion when the Jawoyn Claim applicant informed the Court and the parties of its intention to seek summary dismissal of the Katherine Families Claim for want of authorisation.
20 At an earlier point in time, however, on 13 April 2018 the issue of Mr Levy possibly having a conflict of interest was raised at a case management hearing before me by the solicitor for the Katherine Families Claim applicant. At that time the matter was left to the parties to discuss and to make a formal application if necessary.
21 In his second affidavit, which was affirmed on 10 March 2020, Mr Wells provided a chronology which provided greater detail about the matters set out in his first affidavit concerning the nature and extent of Mr Levy’s involvement in the Original Katherine Claims. It is desirable to set out that chronology:
Date Event
28 Apr 1998 Mr Levy and other NLC staff met with various people in Katherine to explain the process of making a native title application and obtained agreement to continue with the process of making a native title determination application.
At this meeting Mr Levy witnessed various affidavits given by persons said to have interests in Katherine which are in a form required for s 62 of the Native Title Act 1993 (Cth).
I have not been able to locate a copy of the proposed native title determination application which those affidavits were made in support of. Based on other records I have seen, I understand that particular application was not filed because it had been decided to await amendments which were then proposed to be made to the Native Title Act.
Apr-May 1998 Mr Levy conferred with Greg Carter in relation to the land which was to be claimed in the native title determination application to be made over Katherine.
16 May 1999 Mr Levy was one of various recipients of a memorandum from Mr Carter concerning the proposal to lodge a native title determination over Katherine. That memorandum, inter alia, addressed the following issues:
• traditional ownership of Katherine;
• the proposed native title claim group;
• the native title claim area; and
• the Jawoyn Association's opposition to the claim and concerns or risks arising from that opposition.
19 and 23 May1999 Mr Levy and Mr Carter conferred and proposed a redraft of the description of the native title claim group in the proposed native title claim over Katherine.
01 Jul 1999 The National Native Title Tribunal (NNTT) wrote to Mr Levy in relation to the time for applying the registration test to the NTD 6002/1999 (Dagoman Claim).
20 Jul 1999 Mr Levy provided comments for Mr Carter's consideration regarding
• a preliminary assessment by the NNTT in relation to the application of the registration test to the Dagoman Claim; and
• submissions from the NT Government to the NNTT concerning the registration of the Dagoman Claim.
Aug 1999 Mr Levy and Mr Carter conferred about the possibility of amending the Dagoman Claim to remove apical ancestors and the need for further information in relation to same.
11 Apr 2000 Mr Levy appeared before O'Loughlin J in NTD 6001/2000 (Second Dagoman Claim), for which Jessie Brown was the sole applicant (and who is a person who, jointly with others, comprises the Second Applicant here).
06 Jul 2000 The NNTT wrote to Mr Levy in relation to the publication of the reasons for registration of the Second Dagoman Claim.
21 Aug 2000 Mr Levy appeared at a directions hearing for the Second Dagoman Claim.
03 Jul 2001 Mr Levy provided advice to the NLC in relation to a proposed native title claim over Katherine that the application had been made for the Dagoman people and that the NLC certify the application as having been made properly on behalf of the Dagoman people.
10 Sep 2001 Mr Levy provided draft correspondence to Norman Fry, then Chairperson of the NLC, regarding the proposed compulsory acquisition of native title rights and interests and making representations on behalf of the "Dagoman People" concerning the time for filing objections to same.
08 Apr 2002 Mr Levy was a recipient of a memorandum concerning priorities of various native title claims and projects being worked on in NLC. The memorandum confirmed that responses to offers to negotiate made by the NT Government in, inter alia, relation to the Original Katherine Claims were to be made, and that those responses were to be provided to Mr Levy before being sent.
16 Sep 2002 Mr Levy received an email from George Newhouse for the NT Government in relation to projects proposed to be undertaken in, inter alia, Katherine which would extinguish native title.
02 Oct 2002 Mr Levy responded to Mr Newhouse including by noting that extinguishment of native title will deny the Original Katherine Claimants the opportunity to participate in the development of Katherine and that resolution of the proposed extinguishment include "an appropriate area of freehold land to the Dagoman People".
17 Nov 2008 Mr Levy received correspondence from the Australian Government Solicitor, on behalf of the Commonwealth of Australia, in relation to tenure interests held by the Commonwealth in the Original Katherine Claims.
09 Oct 2007 Mr Levy received a memorandum concerning the NLC entering into an ILUA in its own right (which concerned Katherine) and noting that under the agreement the NLC represents and warrants that all reasonable efforts have been made to identify persons who hold or may hold native title and that those persons authorised the making of the agreement.
02 Dec 2009 Mr Levy received a memorandum concerning the certification of an application to register an ILUA which concerns Katherine. The memorandum provided a history and overview of the identification of native title holders in Katherine over time.
03 Feb 2011 By letter dated 28 January 2011, Joe Morrison (a member of the Original Katherine claims native title claim groups and the Katherine Families claim) wrote to the NLC in relation to the need to progress the resolution of Dagoman interests in Katherine and seeking assistance from the NLC in relation to same. That letter was received by the NLC on 3 February 2011 and marked as being provided to Mr Levy amongst others.
18 Apr 2011 Ms Gattis, for the Solicitor for the NT, wrote to Mr Levy and provided information concerning tenure interests in Katherine “for consideration to assist in exploring a possible whole of town settlement”.
20 Feb 2014 Mr Levy was provided with various emails concerning the prioritisation of work within the NLC and the need or desire to secure anthropological opinion in relation to the Original Katherine Claims.
03 Mar 2014 Mr Levy was provided with a general update from Bob Gosford, lawyer within NLC, about the proposed progress of the Original Katherine Claims, including advice that there had been discussions with the Northern Territory's solicitor about those matters possibly proceeding by way of settlement.
26 May 2014 Mr Gosford provided an email to various NLC staff, including Mr Levy, about the progress of the Original Katherine Claims and issues relevant to those claims - including the issue of Jawoyn assertions of interests in Katherine.
01 Jul 2014 Mr Levy is provided with a copy of a report prepared by Jeff Stead (anthropologist) concerning Mr Stead's opinion about ways to progress the Original Katherine Claims, including by considering the anthropological basis upon which those claims were then brought. That report addressed strategic matters concerning Jawoyn people and the Original Katherine Claims.
12 Jul 2014 Mr Gosford provided an email to various NLC staff, including Mr Levy, about the progress of the Original Katherine Claims and proposals made within the NLC for seeking to resolve those matters by consent, including having regard to intra-indigenous issues.
16 Sep 2014 Mr Levy provided an update to the Federal Court of Australia in anticipation of a callover to be convened on 17 September 2014. Mr Levy relevantly advised in relation to the Original Katherine Claims that:
• tenure materials had been received from the NT and that it would take some time for a response to be prepared to those materials;
• a draft anthropological report had been prepared but not finalised and Mr Levy had not been advised of an anticipated date for completion;
• fruitful discussions have been held with NT officers as to a possible settlement;
• regular meetings are being conducted with the claim group with a view to facilitating a settlement.
22 The Katherine Families Claim applicant drew particular attention to the entries for 16 September 2002, 2 December 2009, 3 February 2011, 3 March 2014, 26 May 2014 and 1 July 2014 and 12 July 2014 as demonstrating that Mr Levy obtained confidential information relating to the Original Katherine Claims.
23 The Court was also provided with copies of correspondence between the solicitors for the Katherine Families Claim applicant and the Jawoyn Claim applicant regarding Mr Levy’s retainer. That correspondence substantially reflects the submissions made by the parties in respect of the interlocutory application.
24 The Katherine Families Claim applicant relied upon other affidavits, which I will summarise below.
25 The Jawoyn Claim applicant relied upon various affidavits, including one affirmed by its solicitor, Mr Stephen Kenny. Mr Kenny described a telephone conversation he had on 3 December 2018 with Mr David Spicer-Harden, who was then the solicitor on the record for the Katherine Families Claim applicant. Mr Kenny said that the conversation occurred shortly after the Katherine Families Claim application for a native title determination was filed on 16 November 2018. Mr Kenny deposed that Mr Spicer-Harden “explicitly told me that the Katherine Families applicant would take “no objection” to Mr Levy’s retainer on behalf of the Jawoyn Applicant” (emphasis added) . Mr Kenny said that he made a handwritten and contemporaneous file note of that conversation, which lasted for 15 minutes. The file note relevantly recorded:
- Ron – no objection will be raised.
- “You will be 1st to hear if we do”.
26 Shortly after his conversation with Mr Spicer-Harden on 3 December 2018, Mr Kenny sent an email to Mr Levy in which he summarised the conversation, including the following:
But, he did agree they will not take any objection to you!
27 In his affidavit, Mr Kenny also made detailed observations on the six categories of material relied upon by the Katherine Families Claim applicant as demonstrating Mr Levy’s past involvement in the Original Katherine Claims. I will address those observations below. I will also address other affidavits which were relied upon by the Jawoyn Claim applicant.
28 Mr Spicer-Harden affirmed an affidavit dated 10 March 2020 in which he gave his recollection of his conversation with Mr Kenny. Mr Spicer-Harden also provided an explanation for the delay in challenging Mr Kenny’s affidavit. On the first matter, Mr Spicer-Harden said that his conversation with Mr Kenny on 3 December 2018 was in the context of the case management hearing scheduled for the following day. He said that it was in this context that, when he was asked whether he would seek to object to Mr Levy’s appearance at the hearing on the following day, he told Mr Kenny with words to the effect that “there will be no objection to your counsel appearing at the hearing” (bold emphasis added). Mr Spicer-Harden deposed that he did not say that there would be no objection to Mr Levy’s retainer. He deposed that he never intended or purported to waive his client’s right to object to Mr Levy’s retainer and that he had never been instructed to do so. On the contrary, he said that many of the senior members of the claim group in the Katherine Families Claim shared his serious concerns regarding Mr Levy’s retainer. He said that these serious concerns were reflected in the submissions he made at the case management hearing on 13 April 2018, which was the first such hearing in which Mr Levy appeared for the Jawoyn Claim applicant.
29 Neither Mr Kenny nor Mr Spicer-Harden (nor, indeed, any witness) was required to attend for cross-examination. Accordingly, it was left to the Court to resolve the conflict in their evidence by reference to relevant objective matters, including the consistency of the different accounts with the contemporaneous documents.
30 For the following reasons, I prefer Mr Spicer-Harden’s account. First, I agree that it is an important matter of context that the conversation occurred the day before a scheduled case management hearing. It makes sense that Mr Spicer-Harden would say to Mr Kenny that the Katherine Families Claim applicant did not object to Mr Levy appearing at that case management hearing, without suggesting that Mr Spicer-Harden had any instructions not to raise any objection to Mr Levy’s retainer generally.
31 Secondly, I accept that Mr Spicer-Harden did not have instructions at the relevant time to waive any such objection and I think it most unlikely that he would act contrary to his instructions.
32 Thirdly, and significantly, Mr Kenny’s file note and email to Mr Levy are not inconsistent with Mr Spicer-Harden’s account. Neither of them says that Mr Spicer-Harden said that there was no objection to Mr Levy’s retainer generally, as opposed to the issue of him appearing for the Jawoyn Claim applicant at the case management hearing scheduled for the day after the conversation occurred. Indeed, the fact that Mr Kenny noted in his file note that Mr Spicer-Harden said that “You will be 1st one to hear if we do”, is consistent with Mr Spicer-Harden not having said anything which indicated that there was no ongoing issue with Mr Levy’s retainer.
33 Fourthly, in an email dated 19 December 2019 from Mr Wells to Mr Spicer-Harden, which followed shortly after a telephone conversation they had at that time about what was said back on 3 December 2018, Mr Wells recorded that Mr Spicer-Harden told him that he only “hazily” recalled the particular conversation. Significantly, however, Mr Wells also noted that Mr Spicer-Harden rejected any proposition that he had told Mr Kenny that there would be no objection to Mr Levy’s retainer. He explained to Mr Wells that this was because he was not instructed to waive the right to object and that he was still actively looking at how his client might “get Ron off the case”. I accept that evidence.
34 In a reply email dated 19 December 2019 from Mr Spicer-Harden to Mr Wells, Mr Spicer-Harden confirmed that Mr Wells’s summary of their conversation was correct and that, while he reiterated that he did not have a precise recollection of the earlier conversation with Mr Kenny, Mr Spicer-Harden was adamant that he had said nothing to Mr Kenny which supported Mr Kenny’s claim that there had been a waiver. Mr Spicer-Harden added that he did recall telling Mr Kenny that the Katherine Family Claim applicant “reserved its rights with respect to that matter”. I accept that evidence. I prefer Mr Spicer-Harden’s account of what was said between he and Mr Kenny on 3 December 2018. I reject the Jawoyn Claim applicant’s contention that there was a waiver of the right to object to Mr Levy’s retainer.
35 In his affidavit, Mr Spicer-Harden also gave evidence which is relevant to the issue of the matter of delay in filing the interlocutory application concerning Mr Levy’s retainer. Mr Spicer-Harden said that, although he had the serious concerns from at least as early as 13 April 2018, because of limited time and resources, he gave priority, throughout 2018, to working on the preparation and successful authorisation of the new Katherine Families Claim, which was finalised in November 2018. He also deposed that senior management of the NLC was experiencing “significant disruptions” in December 2018, when the then Chief Executive Officer resigned. He said that the interim CEO of the NLC, who was closely connected to the Jawoyn Association and the Jawoyn Claim, announced that Mr Levy had been engaged as a consultant in charge of the legal section of the NLC. Mr Spicer-Harden deposed that in March 2019 the NLC’s then Principal Legal Officer left and that he did not feel able, at that time, to pursue his client’s concerns regarding Mr Levy’s retainer. Mr Spicer-Harden deposed that he himself left the NLC in May 2019. I will return later to address the issue of delay, but I can indicate at this point that I accept Mr Spicer-Harden’s explanation for the delay.
Relevant legal principles summarised
36 The parties were in substantial (although not full) agreement as to the relevant legal principles. The focal point of their dispute relates to the application of those principles to the particular facts and circumstances here.
37 In brief, dealing with the matters raised in the order adopted by the parties at the hearing, the relevant principles are as follows.
(a) Risk of misuse of confidential information
38 The relevant principles may be summarised as follows:
(a) An injunction may be granted if there is a real and sensible possibility of the misuse of confidential information by a legal practitioner (Farrow Mortgage Services Pty Ltd (In liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 at 5 per Hayne J).
(b) The moving party must identify with precision both the confidential information which is in the possession of the legal practitioner and the reason why that information is or may be relevant to the issues in dispute (Smirke on behalf of the Jurruru People v Western Australia [2017] FCA 825 at [13] per Barker J).
(c) It is not necessary to demonstrate some particular quality of confidentiality in relation to the material – any information received by a legal practitioner in relation to a client’s affairs is prima facie confidential (Re Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189 at [73]-[77] per Anderson J).
(d) A structured approach to the issue whether a legal practitioner should be restrained on the basis of the possible misuse of confidential information is as follows:
(i) What is the relevant information?
(ii) Is that information confidential?
(iii) Does the legal practitioner have possession of that information?
(iv) Is the legal practitioner proposing to act “against” the former client or a person as good as a client in the requisite sense?
(v) Is there a real risk that the confidential information will be relevant?
(vi) Is there no real risk of misuse of the confidential information? (Timbercorp at [64] per Anderson J).
(e) The party moving for an injunction bears the onus of identifying the relevant information with sufficient particularity (question (i) immediately above), as well as demonstrating that the Court should answer the balance of questions (ii) to (v) described immediately above in its favour. However, once these matters are sufficiently demonstrated, the evidential onus shifts to the respondent to address the last question (Timbercorp at [65] per Anderson J).
(f) Most significantly, it is common ground that each case necessarily turns on its own particular facts and circumstances as is illustrated, for example, by cases such as Smirke and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 at [25] ff per Reeves J).
(b) Court’s inherent jurisdiction
39 The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(a) The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).
(b) The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
(c) Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).
(d) This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).
(e) This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 at [35] per Young J).
(f) A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).
40 Given its relevance to the current interlocutory application, it is desirable to say something more at this point regarding the sui generis nature of native title litigation, with particular reference to who is a “party” or “client” for the purposes of legal professional privilege. The parties were agreed that there is a need to accommodate the novel and unusual features of native title litigation, in respect of both the claimed bases for injunctive relief (see generally North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; 185 CLR 595 at 614-615).
(c) Legal professional privilege in native title litigation
41 In Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551, Mortimer J helpfully discussed the need to accommodate the novelty and complexity of the NT Act in determining legal issues such as claims of legal professional privilege and who is the “client” for that purpose. Her Honour’s analysis may be summarised as follows.
(a) The holder of legal professional privilege in the circumstances of that matter was the applicant in a native title determination application lodged under s 61 and, post-determination, the holder of the privilege is the prescribed body corporate determined by the Court under ss 56 and 57 to hold the native title on behalf of the common law holders (see at [34] ff).
(b) The responsibility for adducing sufficient evidence to establish the relevant facts falls on the person who asserts a claim of legal professional privilege (at [37]).
(c) Legal professional privilege exists to protect the interests of the client but in some circumstances it may extend to cover communications involving third parties so as to advance the policy of the law which lies behind legal professional privilege. Generally speaking, that policy is to protect the confidential relationship between lawyer and client, so as to encourage and facilitate a free and frank flow of information within that relationship, either for the purposes of litigation or for the giving or receiving of legal advice (at [38]).
(d) The importance in native title litigation of the need for clear identification of the solicitor who is nominated to act for an applicant was emphasised by Reeves J in QGC Pty Limited v Bygrave [2010] FCA 659; 186 FCR 376. At [57] Reeves J said:
All these observations underscore the fact that the role of the solicitor on the record is critical to the Court’s ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. This is particularly so in native title litigation where the costs sanction against the parties has been significantly reduced by the provisions of s 85A of the Act requiring costs orders to be the exception in such litigation. This necessarily means that the Court has to rely even more heavily upon the diligence and integrity of the solicitor on the record, among others, in the case management of native title litigation. These observations also go to demonstrate how important it is that the solicitor on the record is properly identified by name and address and all the required contact information is provided in accordance with the Rules.
(e) The applicant is the moving party in an application for a determination of native title under s 61 and if the Court makes orders, it does so in respect of, or against, the applicant and not the claim group members (at [52]).
(f) There are, however, some statutory restraints on the capacity of the members of an applicant to bind the claim group as a whole, as discussed in McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [448].
(g) Section 66B of the NT Act provides the statutory mechanism for replacing members of the applicant, as well as reinforcing that the applicant is the relevant party for the purposes of the NT Act. In Lennon v State of South Australia [2010] FCA 743; 217 FCR 438, Mansfield J considered that s 66B was not exhaustive in terms of responding to the situation where a person who constitutes the applicant dies. His Honour held that the surviving members of the applicant could continue to prosecute the s 61 application without applying under s 66B. His Honour said at [34]:
… In my view, in the absence of any evidence to suggest to the contrary, that authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of them. Although it is not express, I consider that the authorisation in its terms is one for them, or so many of them, as continue to be living and able to discharge their representative function to do so. The authorisation contemplated not simply the making of the application, but dealing with matters in relation to it, which (as experience has shown) may extend over a quite lengthy period of time. Accordingly, as Spender J did in Doolan (see in particular at [57]-[59]), I consider that the authorisation by the native title claim group under s 251B impliedly authorised those persons to act as the applicant to the extent that each of them was willing and able to do so. Indeed, it is not necessary to go beyond implying, as I do, that the authorisation was to each of them, and that in the case of the death of one or more of them, to the surviving authorised persons. The approach demonstrated in the decisions of French J in Anderson and Siopis J in Coyne should be adopted in any event.
(h) In Tommy at [56], Justice Mortimer described this passage from Lennon as recognising “the ongoing, collective responsibility of those individuals who constitute the applicant for the conduct of a native title application” and that, subject to any factual situation where the evidence is to the contrary, “it is the applicant, as an entity (and therefore those individuals who constitute the applicant, jointly) which is the “party” and “client”, and holds any privilege”. I respectfully agree with that view.
(i) Her Honour said in Tommy at [58]:
That being the structure and purpose of the Native Title Act, it seems to me that insofar as any legal professional privilege arises (or like privileges under the uniform legislation), the relationship of lawyer and client for the purposes of the conduct of a proceeding must exist between the members of the applicant, jointly as the entity “the applicant” established by the Act, and any legal representatives. The Native Title Act contemplates that it will be the applicant who will conduct the proceeding on behalf of the claim group members, and therefore from whom the legal representative will take their instructions. Chaos would result if it were otherwise, and legal representatives in a native title claim could be subject to “instructions” of varying content by dozens or indeed hundreds of individuals. The Native Title Act provides no structure for a claim group to act communally in the conduct of a proceeding and indeed prohibits any other way of bringing a proceeding: see s 61(1). Aside from the definitional terms of s 251A and s 251B (as to which see my view of these provisions as definitions in McGlade at [423]-[424]) which pick up other provisions where the word “authorised” is used, the Native Title Act provides no structure or process for a claim group to act independently of its representatives, who are, jointly, “the applicant”. The Native Title Act prescribes when there must be “authorisation” from the whole of the claim group for a step, or a decision, and it is through those provisions, and s 66B, that the whole of the claim group retains control over those claim group members who, jointly, constitute the applicant.
(j) Questions such as who holds legal professional privilege in litigation under the NT Act, need to be worked out on a case by case basis (at [67]).
(k) That is not to say, however, that individual claim group members are not for any purpose, the client of a lawyer who represents the native title applicant for the purposes of a s 61 claim. Rather, as Mortimer J said in Tommy at [84]:
There are a range of ethical and professional duties owed by a lawyer to his or her “client” which may well attach and extend to those duties being owed to individual claim group members, as much as they are owed to the people who, jointly, constitute the applicant. Once again, the circumstances presented by the Native Title Act are unique, and call for careful consideration of how existing legal principle applies to those circumstances…
(l) At [89] to [92], Mortimer J explained why, notwithstanding some differences in the claim groups of the relevant two applicants, the area covered by the two claims was the same and this was sufficient to find that the two claim groups were composed of essentially the same people.
Consideration and determination
42 For the following reasons, while acknowledging the high bar before the Court will prevent a party from retaining the lawyer of its choice, I consider that both bases for relief have been established. It is convenient to deal with each of them in turn and in the same order as the parties did at the hearing.
(a) Real risk of Mr Levy misusing confidential information
43 It is convenient to adopt the structure from Timbercorp set out at [38(d)] above.
(i) What is the relevant information?
44 The relevant information is that which is identified in Mr Wells’s two affidavits. It is convenient to break the information down into three broad categories, as proposed by the Katherine Families Claim applicant. The first is information which is relevant to the Original Katherine Claims, such as that identified in Mr Wells’s second affidavit by reference to the items in his chronology relating to 2 December 2009, 3 February 2011, 3 March 2014, 26 May 2014 and 12 July 2014. The relevant information is described in the chronology set out at [21] above.
45 The second category of information relates to Mr Levy’s involvement in the previous proceedings which provides a basis for inferences to be drawn concerning the nature and extent of his involvement in those proceedings. The email received by Mr Levy on 16 September 2002 from a representative of the NT Government in relation to projects which were proposed to be undertaken in, among other places, Katherine which would extinguish native title was cited as an example of this category.
46 The third category of information relates to the evidence that Mr Levy had access to the entirety of the NLC’s files concerning the Original Katherine Claims. Mr Wells gave evidence as to these matters in [7] to [12] of his second affidavit, which I accept. Based upon his review of the NLC’s files and his discussions with the Manager of the Legal Branch of the NLC (who has been employed by the NLC since 2009), I accept that Mr Levy had access to the Original Katherine Claims files kept by the NLC which contained information of a privileged and confidential nature. For obvious reasons, Mr Wells was constrained in his description of individual documents in those files which may have caused any underlying legal professional privilege to be waived. Despite that reticence, however, I accept Mr Wells’s evidence that the files contained privileged and confidential nature relating to such matters as the knowledge, use and connection of various claimants to Katherine and its environs; anthropological information relating to matters such as the composition of the native title claims groups for the Original Katherine Claims; and internal documents either recording or relating to discussions by NLC solicitors regarding strategic decisions about discrete issues concerning native title.
47 I reject Mr Kenny’s evidence in [21] of his affidavit, in which he said that even if information concerning strategic approaches to the competing Jawoyn Claim was confidential in respect of the Original Katherine Claims, this was not material to the issues presented for determination by the current competing applications for determination of native title. It is difficult to understand any rational or acceptable basis for that view having regard to the patent inconsistency between the applicants’ competing claims under s 61. I will explain below why I consider that the Katherine Families Claim is properly regarded as the successor to the Original Katherine Claims.
48 I also reject Mr Kenny’s evidence that the material identified by Mr Wells fails to demonstrate that Mr Levy was directly involved in the preparation, drafting and registration of the Original Katherine Claims, including in matters such as identifying the claim areas and the description of the native title claim group. Mr Kenny asserts that “Mr Levy had only a minor role”. That evidence cannot be accepted having regard to Mr Wells’s review of documents in the NLC’s files dating from 28 April 1998 onwards which indicates that Mr Levy had a reasonably active role in commencing the Original Katherine Claims, including discussing with Mr Carter on 19 and 23 May 1999 a proposed redraft of the description of the native title claim group. It is scarcely surprising that Mr Levy would play such a role, not the least after he became the Principal Legal Officer for the NLC in 2000 and in circumstances where there is no evidence to suggest that there was a Chinese Wall operating within the legal team in that organisation. Mr Wells’s chronology well illustrates that Mr Levy had an ongoing and not insignificant role in the prosecution of the Original Katherine Claims.
(ii) Is that information confidential?
49 I respectfully agree with, and adopt, what Anderson J had to say in Timbercorp at [73]-[77] as to the relevant test of confidentiality. That is the test that I have applied here. I accept that the Katherine Families Claim applicant has established that the information which is referred to immediately above is confidential, not including matters which have entered the public domain, such as things said by Mr Levy at, for example, public Court hearings.
50 For the following reasons, I reject the Jawoyn Claim applicant’s contention that some of the information cited by Mr Wells is not confidential. First, it contends that any confidentiality relating to strategic approaches that might be taken in the Original Katherine Claims in response to the competing claims of the Jawoyn people was lost because of information that was in the public domain, including as a result of information relating to the steps which were proposed to be taken in obtaining a consent determination that the Dagoman people possessed native title at Katherine. Reference was made, in particular, to an affidavit of Mr Spicer-Harden affirmed on 14 June 2016 and filed on the same date. Mr Spicer-Harden deposed that Professor Merlan had been engaged to provide a connection report and that Ms Bauman would commence work on designing “a community engagement model for the native title claim group and other Aboriginal interests in the native title claim region”.
51 I do not accept the Jawoyn Claim applicant’s submission that Mr Spicer-Harden’s affidavit dated 14 June 2016 divulged confidential information relating to the issue of strategic approaches, which had the effect of undermining any current claim of confidentiality in respect of such material. The affidavit was made in response to the Court’s orders dated 13 April 2016 that the NLC file and serve an affidavit setting out a timetable for the completion of all remaining steps in one of the Original Katherine Claims. The affidavit describes in general terms various steps which will be taken and also includes a timetable for those steps to occur. The affidavit does not divulge the details of any “strategy” in addressing the rival position taken by the Jawoyn people other than in those general terms.
52 In my respectful view, the observations made by Mr Kenny in his affidavit in response to that of Mr Wells misses the point of Mr Wells’s claim that Mr Levy was privy to confidential communications concerning strategic approaches that might be taken by the Original Katherine Claim applicants in response to the rival claims of the Jawoyn people. As noted, Mr Kenny’s response relied heavily on the contents of Mr Spicer-Harden’s affidavit filed on 14 June 2016 which described a future timetable for progressing the Original Katherine Claims. That affidavit was filed approximately two and a half years after Mr Levy had left the NLC. It is difficult to see the relevance of that affidavit in relation to Mr Wells’s evidence regarding Mr Levy’s access to confidential communications on strategic matters while Mr Levy was at the NLC i.e. prior to December 2014.
53 Secondly, I reject the Jawoyn Claim applicant’s contention that one of the documents which Mr Wells claims is confidential no longer has that status because the Jawoyn Claim applicant has obtained a copy of it by way of third party discovery. The document in question is an anthropological report by Mr Jeff Stead, which, according to Mr Wells’s review of the NLC files, Mr Levy evidently saw on or about 1 July 2014. According to Mr Wells’s description of it, the Stead report addressed strategic matters concerning Jawoyn people and the Original Katherine Claims. I have no reason to doubt the accuracy of that description, nor was it challenged by the Jawoyn Claim applicant. Significantly, however, the Katherine Families Claim applicant claims that the document was produced in error and that the legal professional privilege attaching to it has not been waived by its erroneous production on third party discovery. This claim has been set out in correspondence to Mr Kenny, who had not provided a response as at the date of the hearing of the interlocutory application. Although I acknowledge that a claim for legal professional privilege has been made in respect of that document, I was not asked to resolve that issue at this time. I see no reason to doubt, however, the genuineness of the claim for legal professional privilege and the claim that its production was in error. In these circumstances, I am not prepared to find that the document is no longer confidential because the Jawoyn Claim applicant happens to have a copy of it in the circumstances described above.
54 Thirdly, Mr Kenny set out at some length in his affidavit why he disagreed with Mr Wells’s claim for confidentiality in respect of the ILUA which affects land and waters covered by the Original Katherine Claims. For obvious reasons, Mr Wells did not go into any detail in describing the confidential nature of that material, other than to say that it included confidential communications regarding the identification of the persons on whose behalf the ILUA was to be entered into, the terms of the ILUA, authorisation, and proposed certificates under s 203BE(5)(a) and (b) of the NT Act. Mr Kenny candidly acknowledged in his affidavit that Mr Wells did not identify with particularity the ILUA to which he referred. Necessarily, therefore, most, if not all, of Mr Kenny’s observations on Mr Wells’s claim in relation to this matter are entirely speculative. It was open to the Jawoyn Claim applicant to require Mr Wells for cross-examination if it wished to test his evidence. It did not do so.
55 Fourthly, I do not accept Mr Kenny’s evidence in response to Mr Wells’s claim that Mr Levy was privy to, and a recipient of, internal NLC correspondence from 1999 to 2014 concerning the progress and development of the Original Katherine Claims, including the progress of anthropological research. Mr Kenny may well be correct in his observations that anthropological research is ordinarily adduced in evidence, but that does not mean that, prior to that point in time, legal professional privilege may attach to such research and related matters which is created for the purpose of it ultimately being used in litigation. Moreover, merely because Professor Merlan and Ms Bauman may have extensively published their views and research regarding the native title rights and interests of the Dagoman people does not derogate from legal professional privilege rights in relation to research undertaken by both those anthropologists for the specific purpose of the Original Katherine Claims.
(iii) Does the legal practitioner have possession of that information?
56 I find that the Katherine Families Claim applicant has demonstrated that Mr Levy had access to the relevant information and I believe that there is a reasonable basis to infer that he still has “possession” of that information in the relevant sense. It is true that there is no evidence to support any proposition that Mr Levy has retained copies of the relevant documentation. It is sufficient for current purposes, however, to infer that he may still have a sufficient personal recollection of the substance of the relevant information. Moreover, I accept that it is reasonable to take into account the risk of a subconscious misuse of the information by Mr Levy.
(iv) Is the legal practitioner proposing to act “against” the former client or a person as good as a client in the requisite sense?
57 For the reasons given above, I find that the Katherine Families Claim applicant is a person who is “as good as” a client for the purposes of this application. I consider that any legal professional privilege reposed in any of the relevant documents is now the privilege of the Katherine Families Claim applicant for the reasons set out at [62] ff below. It is indisputable that Mr Levy is currently acting and, unless restrained, is proposing to continue to act against the Katherine Families Claim applicant. So much is apparent from Mr Levy’s appearance on behalf of the Jawoyn Claim applicant in various case management hearings and conferences either before me or Judicial Registrar Colbran.
(v) Is there a real risk that the confidential information will be relevant?
58 I have no hesitation in finding that there is a real risk that the confidential information will be relevant to the current proceeding. There is a long history of disputation, some of it acrimonious, between the Jawoyn people and the Dagoman people as to who has native title rights and interests in land and waters in and around Katherine. Mr Levy was well aware of that conflict, as is evident from entries in Mr Wells’s chronology such as those relating to 16 May 1999 and 26 May 2014. Moreover, it is abundantly clear from Mr Wells’s chronology that Mr Levy has had significant exposure to anthropological research and information concerning native title groups in relation to the relevant land and waters, as is reflected in the entries relating to 20 February 2014 and 1 July 2014.
(vi) Is there no real risk of misuse of the confidential information?
59 As noted above at [38(e)], in circumstances where issues (i) to (v) are established to the Court’s satisfaction, the evidential burden shifts to the respondent in relation to the final question of whether there is no real risk of misuse of confidential information. No such evidence has been adduced by the Jawoyn Claim applicant so as to displace the findings that I have made above.
60 I find that the Katherine Families Claim is a related matter to the Original Katherine Claims. That is because of the history of the matter, as outlined in [8] to [12] above. In particular:
(a) the new claim covers essentially the same area as the Original Katherine Claims;
(b) the native title claim group, although it has changed, continues to be based on persons who are associated with the Dagoman language group, but there has been some refinement in claim group members because of additional research; and
(c) although the applicant in the Katherine Families Claim is not identical with the applicants in the original Katherine Claims, there is some overlap.
61 Although it is not determinative (because each case necessarily turns on its own particular facts and circumstances), it may be noted that a similar conclusion was reached in Tommy at [89] to [92] per Mortimer J.
62 I also find that Mr Levy has a conflict of interest and has assumed a position on behalf of the Jawoyn Claim applicant which is directly hostile to the Katherine Families Claim applicant. In particular, I find that this applicant is “as good as” the applicants in the Original Katherine Claims, who were Mr Levy’s client, from at least 2000 to 2014.
63 The applicants in the Original Katherine Claims comprised persons who were engaged in a representative proceeding and who were authorised to bring and maintain proceedings on behalf of the claim groups, both of whom asserted native title on the basis of their descent from Dagoman ancestors.
64 The following actions of Mr Levy, acting on behalf of the Jawoyn Claim applicant, are plainly hostile to the interests of both the Original Katherine Claim (prior to those applications being withdrawn) and to the Katherine Families Claim, which is the successor claim:
(a) the Jawoyn Claim applicant’s central position is that the Jawoyn people, and not the claim groups descended from Dagoman ancestors and who are the claim group for the Katherine Families Claim, possess native title rights and interests in the claim area;
(b) in presenting the Jawoyn Claim, Mr Levy has left no doubt that his client’s interests are hostile to the Katherine Families Claim. This is reflected not only in the submissions he made before Judicial Registrar Colbran on 6 November 2019 (as set out at [18] above), but also in seeking to have the Katherine Families Claim struck out, including on the basis that it is unauthorised.
65 In addition, although it is not essential in establishing a case for Court intervention under the rubric of the Court’s inherent jurisdiction to establish that there is a real risk of misuse of confidential information relating to the Katherine Families Claim applicant, I also take into account my findings above at [43] to [59] that such a risk has been demonstrated in this case.
66 I acknowledge that this basis for disqualification is an exceptional one and is to be exercised with appropriate caution, as has been acknowledged in numerous cases. But, as mentioned, each case necessarily turns on its own particular facts and circumstances. It is also appropriate to factor in the unique nature of native title litigation and the reality that native title applicants and group members may alter their position over time.
67 In all the circumstances here, it is necessary to ensure the due administration of justice and to protect the integrity of the Court’s processes that Mr Levy be restrained from acting for the Jawoyn Claim applicant, whose interests are diametrically opposed to those of the Katherine Families Claim.
(c) Legal professional privilege relating to the Original Katherine Claims
68 For the following reasons, I consider that the Katherine Families Claim applicant is the successor to the Original Katherine Claims applicants and is to be viewed as the client for the purposes of any claim of legal professional privilege or access to confidential material kept by the NLC in respect of the Original Katherine Claims.
69 First, I respectfully adopt and apply Mortimer J’s helpful analysis in Tommy, which is summarised at a [41] ff above. Although that analysis was not directed to the situation here, where earlier s 61 applications have been discontinued and a fresh s 61 application has been lodged, I consider that her Honour’s reasoning is applicable. That is largely because the relevant applications all relate to the same area and even though the membership of the claimed groups has changed (as has the applicant), there is a substantial overlap or commonality, as is explained by Ms O’Connell whose opinion I accept for the reasons given below. The change in the members who comprise the applicant reflects the fact that some of the members of the applicants in the Original Katherine Claims are now deceased. The changes in the claim group reflect further anthropological research. The basis for determining the claim group membership has not changed. The common determinant for membership remains descent from ancestors who are identified as Dagoman people. There are 20 such apical ancestors identified in Sch A to the current s 61 application, compared with 14 apical ancestors in the Original Katherine Claims. Four apical ancestors have been removed on the basis of further anthropological evidence which has revealed that they were not people from Katherine; four Dagoman apical ancestors have been added and the genealogies of one group (Wungayajawun) which was also named in the Original Katherine Claims, have been moved one generation back. Accordingly, I find that there is no inconsistency between Ms O’Connell’s evidence and the contents of the table.
70 Secondly, it is relevant to take into account the close proximity between the discontinuation of the Original Katherine Claims and the commencement of the Katherine Families Claim. The two steps are plainly inter-connected, as was made clear to the Court before those steps were taken.
71 Thirdly, it is also relevant to take into account that the NLC provided assistance not only in the Original Katherine Claims but also in the Katherine Families Claim, which is indicative of some continuity.
72 Fourthly, I acknowledge that surviving named members of the applicant in one of the Original Katherine Claims (Mr Gary Manbullo) has given evidence that:
(a) he was not consulted before material in the NLC’s files was used in support of the Katherine Families Claim s 61 application;
(b) he strongly objects to that material being used for that purpose;
(c) he is now a member of the applicant in the Jawoyn Claim s 61 application and believes that it is the right one to succeed the Original Katherine Claims; and
(d) he has no concerns about Mr Levy representing the Jawoyn Claim applicant and he approves Mr Levy having access to the materials relating to the Original Katherine Claims for the purposes of advancing the Jawoyn Claim s 61 application.
73 I do not doubt the sincerity or truthfulness of Mr Manbullo’s evidence. The fundamental difficulty with it, however, is that, as Mortimer J found in Tommy at [56], subject to evidence to the contrary, it is the applicant as a collective entity (being those individuals who constitute the applicant, jointly) which is the “client” and who holds any legal professional privilege, not any particular individual who is a member of the applicant. I respectfully agree with that view and note that no relevant evidence has been adduced here which would displace that approach.
74 Fifthly, my view that the Katherine Families Claim applicant is to be regarded as the successor to the applicants in the Original Katherine Claims is not displaced by other affidavits filed on behalf of the Jawoyn Claim applicant by other Indigenous persons who are either descendants of a listed apical ancestor in the Original Katherine Claims (as is the case with Ms Lisa Mumbin, Mr Joseph Marrapanya and Ms Maria Driver) or, in the case of Ms Hannah Brumby, the daughter of an apical ancestor named in the current Katherine Families Claim application. Again, I do not doubt the sincerity and truthfulness of their evidence, which is along similar lines to that of Mr Manbullo, but that evidence confronts the same fundamental difficulty which is described above.
75 I have explained above at [25] ff why I reject the Jawoyn Claim applicants’ contention that the Katherine Families Claim applicant waived any entitlement to object to Mr Levy’s retainer because of what was said by Mr Spicer-Harden to Mr Kenny in their telephone conversation on 3 December 2018.
76 The Jawoyn Claim applicant urges the Court to exercise its discretion and withhold relief in circumstances where:
(a) the interlocutory application was filed more than one year after the Jawoyn Claim was filed;
(b) it says that no adequate explanation has been offered for why the matter was delayed from that time and, indeed, from 13 April 2018, when the question whether or not Mr Levy had a conflict of interest was raised at a case management hearing (see [20] above); and
(c) since his retainer in 2017, a relationship of trust and confidence has been established between Mr Levy and his client and the cost and resulting delay in the proceedings of requiring the Jawoyn Claim applicant to retain new counsel is relevant (citing Jing Li v Jin Lian Group Pty Ltd [2018] NSWSC 479 at [61] to [64] per Gleeson JA).
77 For the following reasons, while I acknowledge that, on its face, the delay here is lengthy, I consider that an adequate and acceptable explanation has been provided for it.
78 First, as noted above, the issue of a possible conflict of interest was first raised at a case management hearing in April 2018. The issue was not advanced at that stage because the Court indicated that the parties should discuss the matter and, if necessary, a formal challenge could be made to Mr Levy’s retainer. Mr Spicer-Harden has explained in his affidavit how internal instability within the NLC caused distractions in the NLC’s normal functioning. There was a turnover in senior staff. And, it may reasonably be inferred, there was some internal tension regarding the NLC’s operations.
79 Secondly, although Mr Levy appeared on behalf of the Jawoyn Claim applicant at various case management hearings, including in April 2018, the nature and the extent of the role that he would play on behalf of his client in opposing the s 61 application by the Katherine Families Claim only became evident at the case management conference conducted before Judicial Registrar Colbran on 6 November 2019. It is hardly surprising that, in the light of the submissions made at that time by Mr Levy and his foreshadowing of an application to have the Katherine Families Claim application summarily dismissed, greater focus and action was then shifted to the issue of restraining Mr Levy.
80 Thirdly, while it is clear that Mr Levy has played a prominent role in recent months in opposing the Katherine Families Claim application, there is no evidence that he has played an extensive role in the substantive proceedings concerning the competing claims for native title made by the Katherine Families Claim applicant and the Jawoyn Claim applicant. Accordingly, while it has to be accepted that a degree of trust and confidence will have developed in relation to the summarily dismissal interlocutory application, I do not consider that this case is as strong as some others (such as in Jing Li) where there is evidence of a longstanding professional relationship with a client which the Court would be particularly wary of disturbing.
81 Fourthly, and related to the third point, the Jawoyn Claim applicant has not persuaded me that it would suffer significant prejudice if it were to lose Mr Levy as its counsel at this stage. There was no suggestion that there were no other suitable alternative counsel available. Moreover, having regard to the relatively undeveloped nature of the substantive proceedings, I do not doubt that competent counsel should be able to get on top of the brief reasonably quickly. Similarly, having to brief new counsel in respect of the Jawoyn Claim applicant’s interlocutory application for summary dismissal would not be unreasonably onerous or causative of an unduly long delay. On the latter matter, it is also pertinent to take into account the delays which will generally be occasioned to most native title litigation because of the current national crisis regarding CO-VID19 and its particular affects on Indigenous communities.
82 For all these reasons, I am not satisfied that the Court should withhold injunctive relief in its discretion.
(f) Objections to admissibility of parts of Ms O’Connell’s affidavit
83 As noted above, the Jawoyn Claim applicant objected to [11(a)-(b)], [12] and [13] of Ms O’Connell’s affidavit. The objections were that Ms O’Connell’s expertise had not been established as required by s 79 of the Evidence Act 1995 (Cth) and that her evidence was not in accordance with the Court’s Expert Evidence Practice Note (GPN-EXPT).
84 Immediately prior to the hearing of the interlocutory application the Court provided the parties with a list of its tentative rulings on objections to evidence. In the case of the objections to Ms O’Connell’s affidavit, the Court indicated that its tentative view was to reject the objections, adopting the brief written response by the Katherine Families Claim applicant to those objections. The Court then granted leave to the Jawoyn Claim applicant to file and serve by close of business on 25 March 2020 a short supplementary note in response to the tentative rulings. The Jawoyn Claim applicant subsequently provided an 11 page note (signed by Mr Kenny) which, by any measurement, could scarcely be described accurately as “short”. The note also went beyond the terms of the grant of leave in that, as will shortly emerge, it went beyond describing why that evidence was inadmissible.
85 For the following reasons, I am not persuaded by that note to alter the relevant tentative rulings. First, I am satisfied that there is sufficient evidence before the Court to establish Ms O’Connell’s expertise. I have no reason to doubt her statement that she obtained a Bachelor of Social Sciences with Honours from James Cook University and that, since May 2011, she has worked with Aboriginal groups in the Northern Territory on applied native title anthropology for representative bodies. I also accept her evidence that she worked as an anthropologist at the Central Land Council between May 2011 and February 2016 and that she has worked as an anthropologist at the NLC since late February 2016. I also accept her evidence that, from late 2016, she has worked in various capacities and with varying levels of involvement on the Original Katherine Claims, as well as on the Katherine Families Claim. I see no reason to doubt her statement that her work has included identifying and consulting claimants; being a contact point for claimants; recording biographical and genealogical information and providing some assistance to the consultant anthropologist, Professor Merlan.
86 Secondly, as to the non-compliance with GPN-EXPT, having regard to the terms of r 23.11 of the Federal Court Rules 2011 (Cth) (FCRs) which make explicit reference to “a trial”, I consider that there is serious doubt whether Pt 23 has any application to the hearing of an interlocutory application such as here, which is not a trial. In any event, even if that is wrong, the Court has a discretion to waive any of the FCRs including those in Pt 23. If necessary, I would be prepared to take that course in this case. A primary reason for doing so relates to the fact that, given her association with the NLC which, as a representative body, is providing assistance to the Katherine Families Claim applicant (as well as apparently providing financial assistance to the Jawoyn Claim applicant), it would be impossible for Ms O’Connell to declare that she was independent (see Guy v Crown Melbourne Ltd [2017] FCA 1104 at [56] ff per Mortimer J). Nevertheless, I have taken into account Ms O’Connell’s association with the NLC in assessing the weight to be given to her evidence.
87 In its post-hearing “short” note, the Jawoyn Claim applicant also said for the first time that, had the Court ruled on its objections in the course of the hearing, it would have sought to have the relevant paragraphs excluded pursuant to s 135 of the Evidence Act on the basis that the probative value of Ms O’Connell’s evidence was substantially outweighed by the danger of it being unfairly prejudicial, particularly where it was served in reply. It also complained that no provision was made for it to serve further expert evidence and its oral application to do so was dismissed at the interlocutory hearing. I reject those submissions. Ms O’Connell’s affidavit was filed on 10 March 2020 and I infer that it was served on or about that time. The Jawoyn Claim applicant raised no protest that Ms O’Connell’s affidavit had been served late. It had the affidavit for two weeks. In accordance with the Court’s directions, it had the opportunity to require Ms O’Connell to be present for cross-examination, but it did not do so. Apparently, it preferred to rely upon its objections to central parts of Ms O’Connell’s affidavit being upheld. That was its forensic choice. If the Jawoyn Claim applicant considered that it should have had an opportunity to provide its own expert evidence by way of rejoinder to that of Ms O’Connell, it could have filed an interlocutory application to that effect and it would have been dealt with in the normal way. It did not do so. For these reasons, I reject the additional matters raised in the “short” note.
88 In rejecting these belated claims of the Jawoyn Claim applicant, I give particular weight to the overarching purpose identified in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth).
89 For these reasons, I consider that the Katherine Families Claim applicant has established proper bases for the Court to grant injunctive relief. In the course of oral argument, Mr Wright SC (who together with Ms Taggart appeared for the Katherine Families Claim applicant) accepted that there was a need to amend some of the terms of the proposed injunctions so as to give them appropriate precision. It should also be noted that Mr Wright SC did not press order 3 in the interlocutory application.
90 Adopting the amended wording, the Court will grant injunctive relief in the following terms:
(a) The first applicant is restrained from engaging Ronald Michael David Levy to appear as counsel for the first applicant in the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.
(b) The first applicant is restrained from seeking or obtaining legal services from Ronald Michael David Levy in connection with the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.
91 As noted above, on 2 December 2019, the Jawoyn Claim applicant filed an interlocutory application seeking summary dismissal of the s 61 application by the Katherine Families Claim applicant. If that interlocutory application is to be pressed, the parties should seek to agree consent orders relating to case management matters applicable to the hearing and determination of the interlocutory application. Thus they should seek to agree orders by consent relating to matters such as the filing of evidence, the filing of outlines of submissions, any objections to evidence, notification of any witnesses who are required for cross-examination and whether the interlocutory application is suitable to be determined on the papers and without an oral hearing and, if not, why not. In view of the current national crisis and problems of communication, I will not set a formal deadline for this to occur, but would expect the parties to progress the matter within the next three months. Instead, I will grant liberty to apply on the giving of 48 hours’ notice so that the parties can apply to have the matter relisted in the event that they are unable to agree consent orders.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
NTD 57 of 2017 NTD 46 of 2018 | |
Applicants | |
First Applicant: | GARY MANBULLOO |
JANE RUNYU-FORDIMAIL | |
NOELENE ANDREWS | |
NEIL BROWN | |
SUZINA MCDONALD | |
Second Applicant: | CAROL DOWLING |
BILLY JR HARNEY | |
MAY ROSAS | |
Respondents | |
Second Respondent: | COMMONWEALTH OF AUSTRALIA |
Third Respondent: | TELSTRA CORPORATION LIMITED ABN 33 051 775 556 |
Fourth Respondent: | NORTH AUSTRALIA ABROIGINAL CORPORATION |
