Federal Court of Australia

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 8) [2020] FCA 1488

ORDERS

THE COURT ORDERS THAT:

1.    Orders 1 and 2 of the orders made on 24 September 2020, as temporarily vacated by the orders of 6 October 2020 and 12 October 2020 are reinstated such that:

(a)    The time for the Buurabalayji Thalanyji Aboriginal Corporation (BTAC) to file and serve all lay and expert evidence relevant to the determination of the second, third and fourth cross-claims, in compliance with order 5 of the orders made on 20 May 2020, be extended to 22 October 2020; and

(b)    Failing compliance by BTAC with order 1(a) above, the following pleadings be struck out:

(i)    Paragraphs 26 to 35 of BTAC’s amended defence to the second cross-claim;

(ii)    Paragraphs 24 to 34 of BTAC’s amended defence to the third cross-claim; and

(iii)    Paragraphs 10 to 19 of BTAC’s amended defence to the fourth cross-claim.

2.    The interlocutory application filed by BTAC on 5 October 2020 is otherwise dismissed.

3.    The time for each of Onslow Salt Pty Ltd, the State of Western Australia and Chevron Australia Pty Ltd to file and serve any lay evidence and expert evidence in reply, in compliance with order 6 of the orders made on 20 May 2020, be further extended to 6 November 2020.

4.    The pre-trial conference currently listed at 9.30 am (AWST) on Monday 26 October 2020 is adjourned to a date to be fixed, but not later than 27 November 2020.

5.    The balance of the orders pertaining to the hearing of the second, third and fourth cross-claims, being orders 8 to 17 of the orders made on 20 May 2020, remain in force.

6.    The parties have liberty to apply on two days’ notice.

7.    BTAC is to pay the cross-claimants’ costs of the interlocutory application filed on 5 October 2020.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    In the long procedural history of this litigation, the hearing of three cross-claims brought by Chevron Australia Pty Ltd (the second cross-claimant), the State of Western Australia (the third cross-claimant) and Onslow Salt Pty Ltd (the fourth cross-claimant) against the Buurabalayji Thalanyji Aboriginal Corporation (RNTBC) (BTAC) are presently in the spotlight. In August 2019, I ruled that the cross-claims are to be heard separately to, and in advance of BTAC’s principal claim, as they deal with a preliminary question: Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 4) [2019] FCA 1275 (BTAC (No 4)). In each of the three cross-claims, the cross-claimants seek to rely on certain terms of the Native Title Agreement (the NT Agreement) between BTAC and Chevron in relation to the Wheatstone Project which purport to operate as a bar to BTAC’s principal claim under a covenant not to be sued.

2    The hearing of the cross-claims has already been adjourned once from dates in April and May of this year and is currently set down from 21-24 December 2020. That adjournment was necessary to deal with issues that arose concerning the appointment of a special administrator in January 2020 and his purported withdrawal of consent to a continuation of the cross-claims. In Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 7) [2020] FCA 572 (BTAC (No 7)), I ruled that the special administrator’s withdrawal of consent was invalid and that the cross-claims could proceed (BTAC’s application for a general stay was also refused). On 20 May 2020, programming orders to facilitate a December 2020 hearing were made. In July 2020, I granted a six-week extension to the timetable at BTAC’s request to allow it additional time to file its evidence. On 14 September 2020, Onslow Salt’s solicitors sought an urgent directions hearing in relation to BTAC’s non-compliance with orders for discovery and filing of witness statements. On the same day, BTAC formally changed its solicitors on record.

3    By order made on 24 September 2020, BTAC was required to file the witness statements it proposes to rely on at the hearing of the cross-claims on or before 8 October 2020. Failure to comply with that order would result in substantial parts of BTAC’s defences to the cross-claims being struck out (the springing order).

4    By interlocutory application filed on 5 October 2020, BTAC seeks:

(a)    that the programming orders be reformulated to enable the cross-claims to be relisted in February to April 2021;

(b)    an opportunity to file amended defences to the cross-claims;

(c)    an additional six weeks to file its evidence; and

(d)    the vacation of the springing order.

5    In support of its interlocutory application, BTAC relies upon an affidavit of Ms Tannock, its solicitor, affirmed and filed 5 October 2020 (the Tannock affidavit) and a second affidavit of Ms Tannock, affirmed 12 October 2020.

6    By order made administratively on 6 October 2020, the springing order was vacated until completion of the interlocutory hearing on 12 October 2020.

7    At completion of that hearing, the vacation of the order was further extended until the delivery of this interlocutory judgment.

APPLICABLE PRINCIPLES

8    Whether or not the relief sought by the interlocutory application is to be granted is a matter of discretion. The question to be decided is whether it is in the interests of justice to grant the procedural indulgences that BTAC seeks.

9    A determination of what the interests of justice require in a particular case does not proceed on a consideration of the parties’ interests alone. Case management principles relevant to the overall disposition of proceedings before a Court will be relevant to that assessment: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 per Gummow, Hayne, Crennan, Kiefel and Bell JJ (at [102]). It is the moving party who bears the onus of establishing the need for the relief: Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420; [2014] FCAFC 108 per Logan J (at [65]).

10    As BTAC asserts, although there are no fixed criteria by which the interests of justice must be determined, the following matters will be relevant:

(a)    whether the moving party has provided an explanation for why the relief is required and, if so, does that explanation reveal that the need for relief is because of that party’s decisions and actions: Aon Risk per French CJ (at [30]) and per Gummow, Hayne, Crennan, Kiefel and Bell JJ (at [103]) and Shannon (at [52] and [59]);

(b)    the timeliness of the application and the diligence with which the moving party has acted in bringing the application for relief (Shannon at [36], [51]-[52] and [54]), including by having regard to the stage that the proceedings have reached: Aon Risk (at [112] and [114]);

(c)    case management principles, including those prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA), and the effect of granting the relief sought on the overall disposition of matters before the Court; and

(d)    the consequences to the parties, and the resolution of the dispute according to law, of granting or not granting the relief.

11    The weight to be afforded any particular consideration is a matter for the Court. However, a decision to deny the relief sought is not to be punitive, even if the moving party has been non-compliant or has delayed in the past: Aon Risk (at [30]). Such non-compliance or delay, however, may be relevant to determining whether relief ought to be granted, including because there is no reasonable basis to conclude that the moving party will comply if relief is granted.

12    Applications concerning the exercise of discretion are fact specific. The precedential value of authorities where the exercise of a similar discretion has arisen for consideration must be determined accordingly.

BTAC’S EXPLANATION FOR ADDITIONAL TIME AND ADJOURNMENT OF THE HEARING DATES

13    In her first affidavit, Ms Tannock explains the events by which her firm came to be BTAC’s solicitors on the record, the work undertaken since coming on the record and her assessment of the preparedness of BTAC’s case. As will be seen, much of the present controversy concerns BTAC’s ability to adduce evidence in support of its estoppel and misleading or deceptive conduct pleas in defence of the cross-claims. It is accepted that in order to make out those pleas, BTAC must adduce evidence from Mr Jerome Frewen who was purportedly told certain things about the operation of the NT Agreement by a representative of Chevron shortly before BTAC entered into the Agreement in November and December 2010. It is these pleas that are subject to the presently-vacated springing order and Ms Tannock in her affidavits attempts to explain the delays in filing Mr Frewen’s witness statement. The balance of her evidence, however, concerns the work done, and yet to be done, in reviewing the thousands of discovered documents that have been received from the previous solicitors.

14    In short, BTAC’s explanation as to the reason why it seeks an adjournment of the hearing dates and additional filing time is that its case is simply not prepared to the extent where it could realistically proceed to hearing on all issues on 21-24 December 2020. It is maintained however, that this state of relative unpreparedness has not been caused by BTAC’s election to change its representation, or any other aspect of BTAC’s own conduct, and that it is not open for the Court to draw inferences to the contrary. This is said to be because:

(a)    at all material times, BTAC has been legally represented;

(b)    BTAC was required to have filed its evidence on or before 27 July 2020, then 24 August 2020, and then on 8 October 2020;

(c)    as at 14 September 2020, other than Mr Frewen, BTAC’s former legal representatives had not identified the witnesses who were required to give evidence at the hearing of the cross-claims;

(d)    it cannot be, and has not been, concluded that no evidence other than Mr Frewen’s evidence is required. Insofar as BTAC pleads reliance in its estoppel case and also pleads misleading and deceptive conduct, evidence of reliance by BTAC will be required. That is not consistent with any inference that a forensic or deliberate decision has been made that such evidence is not required ,or that Mr Frewen’s evidence alone will establish those matters;

(e)    insofar as the State submits that it should be entitled to the benefit of the springing order because BTAC did not provide the evidence of Mr Frewen by 8 October 2020 or otherwise identified any document said to be relevant to that evidence, BTAC says it has explained why that evidence was not provided;

(f)    there is no evidence that the non-identification or collation of witness evidence other than from Mr Frewen is as a result of BTAC’s own conduct or decision-making. Where BTAC’s evidence is provided by Ms Tannock, an experienced solicitor and officer of the Court, on the basis of her direct knowledge from having examined the relevant files, it should be inferred that no such evidence is available;

(g)    contrary to previous explanations provided by BTAC’s former legal representatives, the collation of BTAC’s evidence for the cross-claims is not substantially progressed or near completion;

(h)    where the former solicitor explained that relevant work was progressing and was, at least as regards the evidence, substantially progressed, that explanation is not consistent with Ms Tannock’s evidence and does not support a finding that the non-compliance is a result of BTAC’s own conduct;

(i)    given the stage of preparation of that evidence, and the documentary review process still to be undertaken, BTAC is not in a position to adduce the evidence it requires before the hearing of the cross-claims in December 2020.

15    BTAC says its election to change solicitor’s some 12 weeks out from trial cannot be said to be the basis for BTAC requiring the additional time sought. That additional time is not sought to enable the new representatives to prepare for an otherwise prepared case. In fact, as detailed in the Tannock Affidavit, Ms Tannock’s firm was engaged on 23 May 2020 to assist in the retaining of senior counsel to provide an advice on the merits of BTAC’s claim. Although Ms Tannock makes the point that her firm’s instructions prior to coming on the record were quit discrete, with limited documentary access, it should be appreciated that Ms Tannock’s firm had been advising BTAC for a number of months before coming on the record. BTAC stresses however that, but for the change in solicitor, the parties and Court would still not have been assured that there would have been orderly progress to hearing on the current timetable.

BTAC’S EXPLANATION FOR SEEKING LEAVE TO AMEND THE DEFENCES TO CROSS-CLAIM

16    The application seeks leave for BTAC to file amended defences to one or more of the cross-claims and for the cross-claimants to have an opportunity to object to those amended defences once filed.

17    The Tannock Affidavit explains that once the documentary review process has been completed, and the evidence obtained, it will be necessary to consider whether the defences to the cross-claim require amendment.

18    Until that is complete, BTAC says its solicitors are not in a position to seek instructions as to amendment of the defences to the cross-claims or to bring any interlocutory application seeking such leave now. It is submitted that the engagement of the current solicitors in May 2020 on a more limited basis, and for the purposes of seeking an opinion as to merits without access to the complete file, does not undermine that explanation.

19    BTAC says that if amendment to the defences to the cross-claims are sought, and no cross-claimant opposes those amendments, then BTAC’s proposed program may continue. If, however, amendment is made and opposed by the cross-claimants, they will have an opportunity to object to that amendment. Whether the cross-claimants oppose leave being given or object to the amended defences does not, and is not intended by BTAC to, substantively alter the right of the cross-claimants to be heard on the amendment to the defences. BTAC’s structure of order is proposed as a matter of efficiency.

THE CIRCUMSTANCES IN WHICH THIS APPLICATION WAS BROUGHT

20    The interlocutory application was made approximately three and a half weeks after the change of the solicitor on the record, and after that solicitor had undertaken necessary work to ascertain the state of the matter. Where BTAC has given instructions for the interlocutory application to be made swiftly with a program going forward, BTAC says that does not support a finding that its conduct is the reason why its case on the cross-claims is at the state of preparation that it is.

21    BTAC says the bringing of the application does not, of itself, cause a disruption to the programming orders so that, by the mere effect of bringing the application, the hearing dates are prejudiced or lost. It is that consideration which Aon Risk cautions against: Aon Risk (at [35]). I would observe however that the consideration is somewhat academic in present circumstances where the primary relief BTAC seeks is an adjournment of the hearing dates. The other orders sought would be futile without an adjournment. As the majority in Aon Risk went on to say (at [35]):

… In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place …

22    BTAC accepts that the relief it seeks could occasion further interlocutory disputes depending on the nature of any amended defences and the cross-claimants’ attitudes to them.

23    Further, although there has been non-compliance to date, the change of legal representatives is a relevant change of fact. The Tannock Affidavit explains the steps that have been taken since that change and the steps that are to be taken. BTAC says that change, and the evidence of Ms Tannock is against a conclusion that granting the indulgence sought will be fruitless in the sense of the possibility that BTAC fails to comply with any further extension if granted.

RELEVANT CASE MANAGEMENT PRINCIPLES AND s 37M OF THE FCA

Public confidence in the judicial system

24    BTAC says that the interlocutory application enables the current hearing to be adjourned approximately five (in fact it is about ten) weeks before the hearing dates. It is not inevitable that those hearing days will be entirely lost to the Court or other litigants with a resultant loss of public confidence in the judicial system. That is distinct, it is said, from the facts in Aon Risk (at [5], [30]-[31] and [35]) and Shannon (at [20]).

25    Importantly, BTAC points out that it is a registered native title body corporate that holds native title rights and interests on trust for the Thalanyji people: Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 (and the minute of proposed consent determination annexed to same). It is their native title rights and interests which are said to have been affected by the cross-claimants under BTAC’s principal claim. Individual Thalanyji people do not have an opportunity to opt out of this proceeding and pursue some other form of relief or remedy. It is relevant to consider that BTAC is not the ultimate or only party who will be affected by any outcome of these proceedings.

Efficiency, cost effectiveness and the just resolution of proceedings

26    BTAC observes that as matters presently stand, the parties have not filed submissions for the trial of the preliminary question the subject of the cross-claims. The trial bundles are not prepared. The cross-claimants have sought BTAC’s evidence such that the cross-claimants have not relied upon an understanding or conclusion that BTAC was not intending to file any evidence. Any preparation that the cross-claimants may have undertaken will not be wasted or duplicated at some later stage by the adjournment of the trial now. That is distinct from what may be expected where an adjournment or amendment is sought imminently before, or during, trial.

27    BTAC says that whether or not the relief sought by BTAC is granted on or after 12 October 2020, the cross-claims will remain on foot. BTAC is the only contradictor to the cross-claims.

28    The proceedings, BTAC says, are complex and novel. They involve complicated questions including contractual construction, privity of contract and the legality of Onslow Salt’s mining activities in relation to the NT Agreement. Proceeding to hearing on complex issues in the present circumstances creates difficulties for the Court and parties. Taking those complexities into account, BTAC says that maintaining the current program is not inevitably the most efficient course, or a course which will result in the disposal of all proceedings in a timelier manner than if the cross-claims were adjourned. I do not accept this submission in relation to this application. Rather, the evidentiary issues on the cross-claim and the defence to it as currently formulated are relatively straight forward and discrete issues. I do accept however that the issues in BTAC’s principal claim are novel and complex.

29    Further, BTAC says that insofar as the cross-claimants submit that BTAC may have the opportunity to ‘seek other remedies’ (presumably including by commencing proceedings), that would be a reason to grant the relief which is sought. Avoidance of a multiplicity of proceedings, BTAC says, is to be encouraged. As was pointed out at the hearing, it appears this submission may have been misunderstood as the potential remedies referred to by the cross-claimants clearly concern parties completely unrelated to them or the issues pleaded in this litigation.

SUBMISSIONS FOR THE STATE

30    The starting point, the State says, is that it was granted a springing order under which parts of BTAC’s defences in the cross-claims were to be struck out if BTAC failed to file and serve its evidence and, particularly, a witness statement of Mr Frewen by 8 October 2020. Those parts of the defences raise the estoppel plea and the misleading or deceptive conduct plea. In essence, they assert an apparently brief representation was made to Mr Frewen concerning the nature and operation of the NT Agreement prior to its execution.

31    As the State notes, the pleading raising the representation said to be made to Mr Frewen was served on 9 May 2019, some 17 months ago. The defence was certified by BTAC’s then solicitors in accordance with r 16.01 of the Federal Court Rules 2011 (Cth) (the FCR) as being properly based on factual and legal materials available to them and considered by counsel.

32    The State particularly stresses that the very short particularisation of the statement said to be made to Mr Frewen was readily capable of being supplied (or not supplied) long before this date. If Mr Frewen is unable to sign a witness statement consistent with the particularisation in the defence, the State contends the defences should never have been pleaded and should be struck out. This was essentially the basis on which the springing order was made.

33    Secondly, the State argues that the Tannock Affidavit simply does not address this fundamental point. It speaks about the large number of documents to be inspected, the inadequacy of BTAC’s trial preparedness, the lack of advice on evidence and the need to prove additional possible witnesses. These matters have no bearing, however, on the question of providing Mr Frewen’s short witness statement. As the State says, the springing order was granted on the basis that the pleaded defences of estoppel and misleading or deceptive conduct both rely expressly and entirely on Mr Frewen giving evidence that he was told something in November 2010 about the effect of the NT Agreement, which presumably, he told others at BTAC, which turned out not to be the case in the draft for execution signed on 22 December 2010, a month later.

34    It is convenient to set out the short passage of BTAC’s defence which pleads the representation made to Mr Frewen and is consistent across all three cross-claims:

Estoppel

25    Shortly before entry into the Native Title Agreement, Chevron represented to BTAC and to the Native Title Claimants that:

a)    the consents Chevron sought to be given by BTAC and the Thalanyji people in the Native Title Agreement were limited to the Initial Taking Order Area and did not include consent to mining, or to the grant of a mining lease or other tenement outside the Initial Taking Order Area;

b)    if agreed and executed the provisions of the Native Title Agreement would not interfere with BTAC's and the Thalanyji people's negotiation rights under the Native Title Act in respect of areas outside the Initial Taking Order Area, and that BTAC and the Thalanyji people would retain and could exercise those rights:

i)    to object to any proposed new tenement sought by any person within the Native Title Determination Area that was outside the Initial Taking Order Area; and

ii)    to inter alia seek and obtain a royalty by agreement with that person,

collectively, “the Statements”.

Particulars

1.    The Statements were oral, and were made by Mr Peter McNally of Chevron to Mr Jerome Frewen as agent for and representative of BTAC and the Thalanyji people, in about November 2010.

2.    Further particulars may be provided following discovery and the close of evidence.

35    Ms Tannock does not explain the relevance of the document review work yet to be done to the settling of Mr Frewen’s evidence. There is no identification of the possible relevance of documents in this particular one month period, which is a substantially smaller number of documents than that on which Ms Tannock focuses. Whatever those documents may say for or against the oral representation, a witness statement should have been able to be supplied by now to support the particulars of the representation asserted.

36    To the extent that there is evidence about Mr Frewen’s possible witness statement, it is that only a draft statement from Mr Frewen has emerged which does not address the pleadings in ‘a number of material respects’. In reality though, there is only one material respect on the pleaded case as to the oral representation on which evidence should have been collated by this stage. Of course some evidence as to reliance would also be expected which would hardly have escaped those raising this defence 17 months ago.

37    Importantly though, nowhere in BTAC’s evidence now filed in support of the application is there any suggestion that Mr Frewen might yet be able to provide evidence supporting the pleas. Rather, the evidence implies that BTAC might need to explore whether further evidence from Mr Frewen and possibly other witnesses could be secured. It seeks vacation of the trial to explore that possibility.

38    The evidence does not explain why this is necessary, given that Ms Tannock has interviewed Mr Frewen personally, as well as a number of interviews having been conducted with Mr Frewen prior to the change of solicitors.

39    The State correctly points out that there is nothing arising from the terms of the springing order that would prevent BTAC from seeking a vacation of the trial date or an amendment to its defence. That is a topic which stands on its own right. The State contends that the springing order should not be revoked on the mere possibility that, given more time, BTAC might be able to find evidence to support the current plea, which evidence it cannot specifically identify or even explain generally at this stage and, secondly, that there should not be a conflation of BTAC’s solicitors inability to prepare for trial with the specific failure to produce a witness statement from Mr Frewen. While in principle, the State is entirely correct that the issues of whether to vacate the springing order and whether to adjourn the hearing should not be conflated, practically speaking, the two forms of relief are dependent upon each other. There would be little utility in an adjournment if the relevant pleas are struck out by the springing order as BTAC would be left only with a narrow construction defence. Any suggestion of amendment to raise independent grounds of defence is mere speculation and one that BTAC has not made in its evidence.

40    In relation to the application to vacate the trial dates, the State emphasises the well-known content of ss 37M-37P of the FCA, the FCR and Aon Risk. By rr 1.39, 1.42, 5.21 and 5.23 of the FCR (which permit the Court to make consequential orders such as the springing order here) and s 37M(3) and s 37M(4) of the FCA, the Court is to interpret and apply the rules in the way that best promotes the ‘overarching purpose’ defined in s 37M(1). This requires consideration of how a just resolution according to law can be achieved as ‘quickly, inexpensively and efficiently as possible’. Similarly, the Court’s powers under s 37P are also subject to the overarching purpose.

41    The State notes that the proceedings have been on foot for over three years (although pre-action discovery was sought prior to that time). Within that time, BTAC has had 17 months to prepare its evidence in defence of the cross-claims. The Court has already indulged BTAC in respect of the trial date for the cross-claims. The trial was originally listed on dates in April and May 2020, but those dates were lost as a result of the unsuccessful application of the special administrator to withdraw his initial consent for the proceedings continuing during the special administration, alternatively to stay the proceedings. The current trial date has been listed since 20 May 2020, and at the date of hearing this application, there was still over two months until trial.

42    Additionally, there is clear evidence that:

(a)    in correspondence on 26 June 2020, BTAC’s previous solicitors indicated that Mr Frewen’s witness statement was ‘substantially complete’;

(b)    in the same correspondence, BTAC did not consider there to be any reasonable basis for the State to require an assurance that the hearing dates would not be disturbed;

(c)    BTAC’s previous solicitors indicated that they had a conference with Mr Frewen ‘tomorrow [9 September 2020] … at which we expect to finalise Mr Frewen’s (substantially complete) evidence, subject to matters which may then arise from the Japanese language documents’; and

(d)    in correspondence on 8 September 2020, BTAC’s previous solicitors anticipated that Mr Frewen’s statement would be finalised within a few days, subject only to the translation of the Japanese documents.

43    This tends to suggest that BTAC intended to file no lay evidence other than from Mr Frewen. Counsel for BTAC accepted at the hearing that to prove the defence (in respect of which the onus is on BTAC), it will be necessary to call Mr Frewen.

44    Contrary to the assurances above, it is now suggested that Mr Frewen’s statement is not substantially complete, it cannot be ready in a few days, there is now a basis for vacating the hearing dates due to unpreparedness and the possible need to amend the defence in a manner that cannot yet be articulated. This arises in circumstances where advice from senior counsel on the prospects of BTAC’s defence to the cross-claims was given in conference on 9 and 10 September 2020, having been initially sought some months before.

45    Although BTAC seeks that the trial be relisted ‘between mid-February and the end of April 2021’, there can be no confidence at all of the reasonable prospect of the trial being fixed in the first half of 2021, given previous experiences with the clashing commitments of senior counsel. Unlike Aon Risk, where the adjournment application was refused, the party in that case at least articulated, albeit late, the amendment which it proposed. The highest BTAC can put its position at the moment is that Mr Frewen may still be called, but the defence may need to be amended in some way.

46    The State notes that BTAC’s current solicitors blame the former solicitors for this situation, but that is certainly not an issue which I can resolve or on which I need express any view.

47    All that can be said is that there is a strong argument that the difficulties arising from the current situation should not have occurred and above all, should not be laid at the feet of the cross-claimants.

SUBMISSIONS FOR CHEVRON

48    Chevron supports the State’s contentions and also notes that BTAC started to seek new independent legal advice from senior counsel from May 2020 following the ruling in BTAC (No 7)) and at the instance of BTAC’s special administrator as to its prospective claim and defences. Chevron asserts that while BTAC’s current solicitors on the record (then so engaged off the record), may not have previously had access to discovered documents, there has been ample time to form a view as to the prospects of the defence both strategically and forensically. I think the difficulty in this assertion is that if the defence raised as a matter of law was thought to be available, it is not clear from the solicitors’ point of view that they in fact had access to Mr Frewen. However the evidence on this is silent, a matter on which BTAC, who seeks a significant indulgence, bears the onus.

49    Chevron also stresses that BTAC cannot say whether or not it will amend its defence or what the amendments will be, but simply that it may wish to do so.

50    Importantly, there is no precise explanation at all by BTAC as to why its evidence is not ready. The evidence appears to be that proofing of witnesses commenced in 2018 with various witnesses having been identified and spoken to, a draft affidavit was prepared and almost completed. The respondents observe that if BTAC has an issue with the way its previous solicitors conducted its case, it has other remedies.

51    Chevron also stresses the importance of the public interest and the proper use of the limited public resources of the Court, and the fact that adjourning the trial would undoubtedly lead to inefficiencies and increased costs in the preparation of the matter for trial. Importantly, Chevron argues that an extended period of strain on the litigants, including their employees and officers conducting the litigation and witnesses will result, which is an important consideration: Aon Risk (at [100]). As also observed in Aon Risk (at [102]), the Court should consider the general prejudice to the parties which can reasonably be assumed to flow from any delay, including that which cannot readily be articulated. The reality of the course that BTAC advocates for is that the cross-claims will be delayed by as long as one year, assuming fresh dates can be secured in the first half of 2021; a very uncertain prospect given the previous mutual availabilities of senior counsel in this matter.

SUBMISSIONS FOR ONSLOW SALT

52    Onslow Salt also supports the submissions of the State and Chevron. Onslow Salt makes the point that a change of legal representation shortly before a hearing will not necessarily, or even routinely, merit an adjournment, because each case is addressed on its individual circumstances with the ultimate aim being the ‘the attainment of justice’: Jarrett v Westpac Banking Corp [1999] FCA 425 per Mansfield J (at [78], with whom Carr J agreed generally), applying Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, and Shannon per Flick and Perry JJ (at [128]). In Jarrett, Heerey J made the following observations (at [6]):

General considerations applying to decisions to adjourn a fixed trial date include the following. First, a party to civil litigation does not have an absolute right to legal representation in the sense that the trial must be adjourned if the party does not have a lawyer. A party is of course entitled to every reasonable opportunity to obtain legal representation but this is subject to other, sometimes competing, considerations such as the rights of the other parties to reasonably prompt disposition of the litigation and the need to maintain public confidence in a fair and efficient system of civil justice. The vacating of a trial date which has been fixed, by consent of the parties, well in advance, is a serious step. Parties and their witnesses, solicitors and counsel and the Court itself make important commitments based on the assumption that the trial date will be honoured. And, as practical experience of litigation shows, the approach of a fixed trial date is a powerful incentive to realistic negotiations and possible settlement, all of which is in the public interest. Against that background it is necessary to consider the circumstances in which counsel on behalf of the Jarretts made application on 11 and 12 May 1998 for adjournment of the Westpac trial.

(cited with approval in EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 per Kenny J (at[18]); WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 per Jackson J (at [2])).

53    As Onslow Salt observes, in May 2020 when the Court was determining when to list the cross-claims, my associate prepared a spreadsheet showing each parties’ availability. All respondent parties and the Court were able to hear the proceedings from 21-25 September 2020, but BTAC indicated it was unavailable. The only dates between September and December 2020 when all parties, including BTAC were available was 21-24 December 2020. This is illustrative of the likely difficulties to be faced if fresh dates are considered in February to April 2021.

54    Onslow Salt argues that any difficulties which BTAC or its special administrator face, or assert that they face, in preparing for the hearings are of their own making. They engaged the current solicitors in May 2020, albeit that the solicitors did not come onto the record until September 2020. That timing, Onslow Salt argues, tells against the proposition that an inability to advise BTAC is a sound basis to apply to adjourn now: cf Matthews v Whites Hill (SA) Pty Ltd [2019] SASC 78 per Hughes J. As to this contention, clearly in a matter of this complexity, speaking of the primary claim, it would take some time to ‘get up to speed’, particularly, if it were the case as seems to be suggested, that BTAC did not or could not make the discovery documents available or more importantly, Mr Frewen available for an interview shortly after the current solicitors were engaged ‘off the record’. But if such access was not possible, once again, there is no explanation at all from BTAC as to why it was not available.

55    Onslow Salt also refers to my decision in BTAC (No 7) (at [82], [86] and [92]-[93]), where I said:

82    This is undoubtedly an important question which the Special Administrator has stressed. The matters to be examined and prepared for the preliminary issue claim, primarily by virtue of the defence raised to the cross-claim by BTAC go to the actions of BTAC, Chevron and their representatives around 2009 to 2010. I refer to these matters in BTAC No 4 (at [11]-[18]). Of course, while those matters have no connection with the Special Administrator’s activities and doubtless investigations into them would be carried out by BTAC’s solicitors, nonetheless clearly they will occasion some element of distraction and some element of cost. However, at this stage, one would expect, as Onslow Salt contends, that BTAC’s solicitors would presumably have done most of the work to advise and prepare for hearing by reason of the following matters:

(a)    BTAC’s lawyers pleaded in May 2019 that the representations claimed to estop or preclude (as misleading or deceptive conduct) the 2010 Native Title Agreement. On this basis, BTAC’s solicitors must have already taken “comprehensive instruction from clients and only [be] pleading according to those instructions’ and have ‘use[d] reasonable endeavours to ensure that a claim or a defence has a rational basis on which it might succeed’;

(b)    the Special Administrator’s consent was purportedly withdrawn the day before the provision of discovery by the parties, so that much of the work should have already been completed; and

(c)    the legal fees for BTAC in June to December 2019 were $696,154 by reference to p 3 of the Newsletter. Given that the only other legal proceeding in which BTAC was involved was the finalisation of a bankruptcy proceeding in the Federal Circuit Court where BTAC’s petition was withdrawn, it is clear that the bulk of that amount would have been incurred in relation to the no doubt substantial work undertaken by BTAC’s solicitors in that period for the cross-claims. I observe that one difficulty at least in this analysis is that it is possible that some of this expenditure could have related to advice, negotiations or drafting in relation to entirely different matters other than this or other litigation. But it must be observed that no attempt has been made by BTAC to seek leave to file any material which may support or establish that possibility. The absence of any such attempt or evidence may tend to add weight to the contention for Onslow Salt.

…

86    In BTAC’s written submissions it is asserted that the stay would not deprive the cross-claimants of their rights, but merely operate to defer their claims. I accept the submission for the cross-claimants that such a deferral is (depending on how long it lasts) in itself, a deprivation of their rights to have the claims heard and adjudicated. Plainly these corporations and the State suffer a disadvantage for as long as this significant litigation remains on foot.

…

92    The stage at which the litigation is advanced and the prospects of success of litigation have been factors taken into account in previous instances. In BBC Hardware Ltd v GT Homes Pty Ltd [1997] 2 Qd R 123 per Thomas J, the Supreme Court of Queensland granted leave to a party which had previously been litigating against the company and was close to obtaining judgment when the company went into voluntary administration. His Honour went on to say (at 125) that:

the defendants were stalling and that their financial situation and no doubt other factors have induced them to seek the appointment of an administrator. However, the question is whether that circumstance should be allowed to frustrate the position of the plaintiff which … was on the brink of an entitlement to obtain judgment

93    I do not suggest either that BTAC has been stalling or that the cross-claimants are on the brink of obtaining a judgment as in BBC Hardware, but certainly the respondents were in receipt of orders that their cross-claims should be determined before other matters in the litigation and hearing dates had been set for that purpose in September 2019. Onslow Salt has given evidence that it continued preparations because of the Special Administrator’s consent. This is a further factor to take into account in weighing up whether a stay should be granted or leave given to proceed permitted.

(Emphasis added.)

56    BTAC has explained that it was in light of this decision that BTAC sought independent advice from senior counsel.

57    There is ongoing prejudice to Onslow Salt, verified in an affidavit sworn by Mr Andrew Bohnen of 9 October 2020. There is nothing in BTAC’s materials which could lead the Court to conclude that the facts and reasoning in BTAC (No 7) were incorrect. Onslow Salt says the springing order was consistent with that position. The current pandemic has not been put up as a basis for the difficulty in being ready for the hearing of the cross-claims. In any event, the rationale in programming the cross-claims for hearing in December took that factor into account: see BTAC (No 7) (at [98]). Onslow Salt stresses that these proceedings, commenced after a pre-action discovery application made in September 2016, have finally reached the point of a fixed date for hearing the preliminary issue which is potentially dispositive of the proceeding despite repeated non-compliance with programming orders by BTAC. Nothing advanced on behalf of BTAC explains why the trial should not proceed with any relevant precision.

CONSIDERATION

58    Although there is evidence from its current solicitor, no evidence has been given by the special administrator or any officers of BTAC, or any of its members that might illuminate what has happened in the 17 months since the defences to the cross-claims were filed and why BTAC now finds itself in this position.

59    There is certainly no evidence from BTAC or its legal representatives supporting a belief or likelihood that evidence can be given by Mr Frewen which will support the pleaded representation defence.

60    Counsel for BTAC accepts the obvious, that Mr Frewen would have to be called to make good the plea as to the representation. That of course must have been obvious for at least 17 months.

61    There is no suggestion from BTAC or its special administrator that it could not, at least as early as May this year, have arranged access to Mr Frewen or the relevant limited number of documents for the period between the pleaded representation and the execution of the NT Agreement to its solicitors who are now on the record. While there is evidence as to understandable delay in obtaining advice from busy senior counsel, that delay did not mean that nothing could be done in the meantime on the narrow issue arising on the preliminary question.

62    The possible evidence of Mr Frewen as to the oral representation would be quite confined. The pleaded representation is simple. Although evidence as to reliance has not been referred to in any materials put forward by BTAC, the need to supply that evidence, if available, would always have been obvious.

63    There appear to have been five or six interviews with Mr Frewen to date yet there is no evidence as to the reason why it has not been possible by now to put on a witness statement which supports the making of the representation if such prospective evidence were available. Ms Tannock has only gone so far in her first affidavit to say that, contrary to the representations made by the previous solicitors, Mr Frewen’s evidence is by no means in a completed form. This is not so much an explanation as it is a correction or an update. No reason is given as to why the evidence is in the state that it is and, critically, no cogent reason is given as to why the evidence cannot be prepared in advance of the current hearing dates, still almost 10 weeks away.

64    There is no evidence as to any difficulty gaining access to Mr Frewen recently, and indeed it has been achieved.

65    I fully understand that the new solicitors for BTAC now find themselves in a position which would be challenging if it were to proceed to a trial of the whole of BTAC’s claim in December. But it is not. The preliminary question on the cross-claims raises a narrow point.

66    As against that, on the face of matters, the cross-claimants have long been apparently entitled to rely upon a documented agreement that BTAC would not issue legal proceedings. This was the basis for the grant of the relatively unusual relief of setting down the preliminary question for hearing in order to save time, costs and to preserve the prima facie contractual rights of the cross-claimants: BTAC (No 4) (at [68], [75] and [78]-[79]). They have had to wait a long time with repeated procedural non-compliance by BTAC to assert their argued contractual entitlement.

67    As to the possibility of a new argument/defence being belatedly raised, no information has been provided as to the nature of any possible amended defence, let alone the precise content of it. No minute has been provided.

68    The State in particular made its position on these matters very clear at the 24 September hearing when the springing orders were made.

69    In my view, BTAC has had more than sufficient opportunity to prepare its case on the preliminary question, especially given the narrow compass of it.

70    There are personal considerations for all parties. The events date back as far as November 2010, about a decade ago. The pleaded representation makes an assertion that an individual made the representation. Reputational questions arise. Reliability of recollection arises as a fundamental factor. The evidence on the pleaded exchanges should not be left unaddressed any longer than is absolutely necessary. Having regard to the court’s availability and the likely availability of all senior counsel as historically demonstrated, any adjournment would be to dates at least 12 months and probably longer after the original trial date.

71    Onslow Salt has ongoing relationships with the members of BTAC which have suffered under the cloud of this major litigation remaining unresolved for an extensive period of time.

72    And, of course, if the preliminary issue were decided in favour of BTAC, the principal claim would still be many months at least away from determination. While not dispositive of the current issue, this observation does reveal the prospect that this litigation may require significantly more time to deal with all the issues. It has taken three years to now approach a determination of the preliminary issue.

73    All parties but particularly for present analysis, the cross-claimants have also incurred substantial expense to date in the matter generally, including the discovery and examination of tens of thousands of documents and numerous court appearances and contests.

74    I have given particularly careful consideration to, and am particularly mindful of, the position of the individual people who BTAC represent. They are people who, although perhaps not as familiar with the conduct of civil litigation as the cross-claimant corporations and State government, no doubt understand the argument as to the impact of these proceedings on the enjoyment of their native title rights. They may be losing, or fear they are losing, a valuable opportunity for lawful compensation for loss of part of the land over which native title is held. In this sense, such loss is not just a money issue. There is a question as to whether the prejudice in not vacating the springing order, and not vacating the trial, is so great to those persons represented by BTAC that the relief sought by BTAC should be granted.

75    After giving particularly careful consideration to this factor, I am of the view that such prejudice is outweighed by other factors, including the prejudice to the cross-claimants in light of the procedural history to date and the nature of the evidence adduced in support of the application.

76    I do note additionally that the estimated further cost of preparation for trial will impose upon BTAC, and ultimately those whom it represents, over and above the substantial costs already incurred, a particularly taxing burden during its period of special administration.

77    Some of the cross-claimants have pointed to the fact that if BTAC has complaints about its former representation, it may pursue its remedies accordingly. I expressly do not take that matter into account. To the limited extent there may be evidence suggesting as much, it has certainly not been addressed by those to whom it is apparently directed. Similarly I would add that nothing in these reasons is intended to criticise the handling of the matter by the new solicitors and counsel for BTAC or anyone else assisting BTAC.

78    I consider that it is clear that BTAC has had more than a generous opportunity to prepare its case on the preliminary issue. The considerations advanced by the respondents are largely correct and, BTAC has failed to provide sufficient reasons as to why the discretion should be exercised to grant the relief it seeks. The majority’s observation in Aon Risk (at [108]) is apposite:

The absence of explanation suggests the possibility that none which favoured ANU could be offered.

79    The application for relief was filed as a matter of urgency by BTAC on 5 October 2020. The date for expiry of the springing order concluded two days later. I vacated the springing order pending determination of the urgent application. I will give BTAC a very last, but brief, opportunity to file its evidence, if BTAC can do so, by granting an extension of the springing order to a date five business days from the date of these reasons. I am mindful that, against the possibility that its urgent application might fail, BTAC has had the opportunity in the meantime to focus on finalising at least Mr Frewen's evidence, if it wishes to proceed with that aspect of its defence.

80    If BTAC’s evidence is not filed within five business days from the date of these reasons, the relevant paragraphs of the defences going to the alleged representation will be struck out.

81    There would in that event remain in the BTAC’s defence an argument as to the proper construction of the NT Agreement. That is a matter which the parties consider can comfortably be accommodated well within the four days allotted for the hearing from 21 December 2020. The hearing dates will not be vacated. The trial dates for the preliminary issue will not be vacated.

82    BTAC suggested at the hearing that if it were successful the costs of the application should be reserved given the state of the timetable and the state of the matter generally. This position may have been warranted had BTAC achieved some or all of the relief sought. Given the outcome however, the usual rule should apply. BTAC should pay the other parties’ costs of its unsuccessful application.

Associate:

Dated:    15 October 2020

SCHEDULE OF PARTIES