Federal Court of Australia

Glencore Coal Pty Limited v Franks [2020] FCA 1801

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    It is well-established that, subject to “inconsistent statutory provisions and to the requirements of [the] curial process in other litigation” (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33 per Mason CJ), a party who obtains documents or information through the process of discovery is subject to an implied undertaking not to make use of them or it for a collateral purpose. The undertaking, generally known as a Harman undertaking, after Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 313, binds not only the parties and their lawyers but also others to whom the documents are given: Hearne v Street (2008) 235 CLR 125 at [109] (Hayne, Heydon and Crennan JJ). The rationale given in Harman is that the undertaking protects the confidentiality of documents which the course of justice requires to be disclosed in the litigation (Harman at 312-3 per Lord Scarman; at 321 per Lord Roskill; see also Lord Diplock at 299-300 and Lord Keith at 308). The principle, however, is not limited to documents. It extends to information derived from the documents: Crest Homes Plc v Marks [1987] 1 AC 829 at 854 (Lord Oliver). It has also been applied to answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements prepared and served in accordance with a court direction, and affidavits: Hearne v Street at [96] and the authorities referred to there. The underlying principle is that “a document furnished for use for one purpose may not legitimately be used for another”: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510 (McPherson J); Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Wilcox) at 223.

2    The implied undertaking is subject to the qualification that, once the material is adduced in evidence in court proceedings, it goes into the public domain unless the court restrains its publication: Esso Australia Resources Ltd v Plowman at 32-33.

3    It is also well-established that the court may release a party from the undertaking but that, in order to be released, the party must show “special circumstances”: Crest Homes; Springfield Nominees at 225 (Wilcox); Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31] (Branson, Sundberg and Allsop JJ).

4    This is an application by Glencore Coal Pty Limited for leave to use an expert report filed in another proceeding for the purpose of making representations to concerning an application by the respondents, Scott Franks and Robert Lester, made under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The application was supported by affidavits from Anthony Gerard Denholder and Amaya Fernandez, both solicitors from Ashurst Australia, who act for Glencore in relation to the respondents’ application.

5    The report in question was produced pursuant to a court order but not tendered in the proceeding in which the order was made. I am satisfied that, without a court order, Glencore would be precluded by the Harman undertaking from using the report or the information it contains for any purpose unrelated to the earlier proceeding.

6    Section 10 of the Heritage Protection Act provides as follows:

(1)    Where the Minister:

(a)    receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;

(b)    is satisfied:

(i)    that the area is a significant Aboriginal area; and

(ii)    that it is under threat of injury or desecration;

(c)    has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and

(d)    has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, make a declaration in relation to the area.

(2)    Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3)    Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:

(a)    publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:

(i)    stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;

(ii)    inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and

(iii)    specifying an address to which such representations may be furnished; and

(b)    give due consideration to any representations so furnished and, when submitting the report, attach them to the report.

(4)    For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:

(a)    the particular significance of the area to Aboriginals;

(b)    the nature and extent of the threat of injury to, or desecration of, the area;

(c)    the extent of the area that should be protected;

(d)    the prohibitions and restrictions to be made with respect to the area;

(e)    the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);

(f)    the duration of any declaration;

(g)    the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;

(h)    such other matters (if any) as are prescribed.

7    “Aboriginal” is defined in s 3(1) to mean “a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands”. “Significant Aboriginal area is defined in the same section as:

(a)    an area of land in Australia or in or beneath Australian waters;

(b)    an area of water in Australia; or

(c)    an area of Australian waters;

being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.

“Aboriginal tradition” is defined as “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships”.

8    The limited evidence presented on this application establishes the following facts.

9    On about 7 July 2020 Mr Franks and Mr Lester lodged an application for a declaration under s 10 in relation to land which includes an area known as the Ravensworth Estate. They did so as representatives of the Plains Clan of the Wonnarua People. The Ravensworth Estate is situated in the Hunter Valley between Muswellbrook and Singleton. They claim that coal mining in the area will have a major impact in altering the natural landform threatening the traditions, customs and beliefs of the Wonnarua people.

10    The Minister nominated Daniel Leo, an anthropologist, to provide the report.

11    In a public notice published on 24 September 2020 and in an email to Glencore on 28 September 2020 acknowledging Glencore as an interested party in the matter, called for representations to be made by 5pm on 5 November 2020 and final comments (the final step in the consultation process) by 5pm on 19 November 2020.

12    The Ravensworth Estate falls within an area which was the subject of a native title proceeding in this Court instituted by Mr Franks and Mr Lester: Scott McCain Franks & Anor on behalf of The Plains Clans of the Wonnarua People v Attorney General of New South Wales & Ors (NSD1680/2013, later NSD39/2019) (Native Title Proceeding). Mr Franks and Mr Lester claimed to have standing to bring that proceeding on the basis that they were respectively descendants of Mary Shoe, the mother of Matilda Hughes, and Emily, the mother of Henry Frederick Taggart. The Native Title Proceeding was filed on 19 August 2013. On 24 April 2015 Glencore applied to be joined to the proceeding and an order was made on 10 July 2015 adding it as a respondent. Glencore is a holding company in the Glencore Australia group of companies, a number of which hold mining tenements in the area covered by the native title claim.

13    The claim by the Plains Clans of the Wonnarua People was disputed by other Aboriginal people.

14    On 12 December 2017 the issues between the Plains Clans of the Wonnarua people and the Aboriginal respondents were referred by the Court to mediation. The parties subsequently approached the Court seeking the appointment of an independent anthropological expert to prepare a report on certain issues.

15    On 6 August 2018 Perry J made orders in the Native Title Proceeding (and also in two other proceedings (NSD788/2013 and NSD1093/2012)) appointing Dr Lee Sackett as an independent anthropological expert pursuant to r 23.01 of the Federal Court Rules 2011 (Cth) and directing him to answer a number of questions. The application was made jointly by the Plains Clans of the Wonnarua People and the Attorney General of New South Wales. The report by Dr Sackett was a “desktop” review only. It did not involve any field work on his part.

16    Among the questions Dr Sackett was directed to answer was whether certain people were “Wonnarua people”. They included Mary Shoe, the mother of Matilda Hughes, and Emily, the mother of “Henry Frederick/Frederick Taggart”. In his report, Dr Sackett concluded that nothing was known of Mary Shoe’s origins and she should not be considered as “an apical”, that is to say a lineal ancestor of a Wonnarua person. As for her daughter, Matilda Hughes, Dr Sackett concluded that “some fairly strong evidence “suggests that she was not Wonnarua but Kamilaroi”. Similarly, with respect to Emily, the mother of Henry Frederick/Frederick Taggart, Dr Sackett considered that there was “some fairly strong evidence” that her alleged birthplace of Sandy Hollow did not lie in Wonnarua lands but in Kamilaroi country.

17    Dr Sackett’s report was filed on 5 August 2019 but was never tendered in evidence. The Native Title Proceeding was discontinued with the leave of the Court on 28 February 2020.

18    The s 10 application is supported, amongst other things, by a report of Associate Professor Neale Draper, an anthropologist. In his report (Draper report), Ass Prof Draper states that the Plains Clan of the Wonnarua People (PCWP) are “not only a registered Aboriginal party, but also comprise the known Wonnarua Aboriginal traditional owners for the project area”, referring to two earlier reports of his own. Glencore contends that the Draper report is underpinned by an assumption that oral histories taken from the “PCWP informants” represent oral histories of Wonnarua people. Ass Prof Draper described Matilda Hughes as the “Wonnarua ancestor of the Franks, Foot/Stocks and Lester families”, whom he interviewed.

19    The Draper report refers to the Sackett report, but only briefly. It records Ass Prof Draper’s understanding that the native title claim was withdrawn by the claimants “in order for amendments to be made following an anthropological review of Wonnarua claims (Draper 2018, 2020, Sackett 2019)”. The Sackett report is also mentioned in the bibliography to the Draper report, indicating that Ass Prof Draper was provided with the Sackett report, presumably before the notice of discontinuance was filed in the Native Title Proceeding and for the purpose of that proceeding. In an affidavit affirmed in the Native Title Proceeding in support of the application for leave to discontinue, Mr Franks deposed that he was a descendant of Mary Shoe and her daughter, Matilda Hughes, that he and Mr Lester had consulted Ass Prof Draper, and that he disagreed with aspects of Dr Sackett’s methodology, but that they did not have the resources to continue the proceeding. He also said that he understood that some of Emily’s descendants, including the head of the Taggart family, Mrs Ward, identify as Darkinjung and her position makes it “very difficult” for him and Mr Lester to continue with Wonnarua claims that include her and other descendants of Emily.

20    On 7 August 2020 Ms Fernandez telephoned Dr Sackett apparently to inquire whether he would assist Glencore in relation to the s 10 application. He was unwilling to do so. He claimed he would have “a conflict” since he had met with the claim group about “this” and he was worried they would be concerned if he helped Glencore. He also said he had done work for the Court on the matter and did not therefore feel that he could help. He suggested two other names to her. There is no evidence to indicate what Ms Fernandez did with this information.

21    On 12 October 2020 Ms Fernandez emailed Mr Leo on behalf of Glencore and its associated entities, seeking copies of the Sackett report and three earlier reports of Ass Prof Draper mentioned in the Draper report. Mr Leo replied the next day, saying that, apart from some email correspondence, the only other documents he had were those supplied with the application. He expressed the view that it was open to interested parties “to raise such an issue in their representation”. Ms Fernandez asked Mr Leo to seek the documents from Mr Franks and Mr Lester, observing that “[t]o best prepare [Glencore’s] substantive response in the representation and fully understand the basis for the application, it needs access to the referenced material”. On 16 October 2020 Ashurst wrote to Mr Leo renewing the request. They claimed that the documents were “used and referenced in, and form part of, the material upon which Dr Draper has relied in preparing his report, which itself forms part of the [a]pplication” and are “clearly relevant” to his consideration of the applicant and Glencore’s response. They argued that “[d]oing so may avoid a reviewable error and therefore result in saving in time and costs for all concerned”. They claimed that Glencore was “entitled to address the matters contained in the documents “as a matter of procedural fairness and natural justice”.

22    Unsurprisingly, Mr Leo emphatically rejected Ashurst’s claim that he would fall into reviewable error if he did not supply them with the reports. He said he had no power to compel parties to produce documents but was prepared to ask the s 10 applicants to consider submitting the documents as part of a representation or final comment. He urged Ashurst, when making representations and final comments, to focus on addressing the eight matters set out in s 10(4) of the Heritage Act.

23    On 11 November 2020 Mr Leo visited Maria Stocks at her Singleton home and received oral submissions from her, her brother (David Foot), and Mr Franks. The next day he visited parts of the Ravensworth Estate with Ms Stocks and Mr Franks and received further oral submissions. He prepared a report summarising those submissions. The report indicates that oral histories were given about the significance of the Ravensworth Estate to Mr Franks, Ms Stocks and Mr Foot as descendants of the Wonnarua people. Mr Leo described each of them as a descendant of Matilda Hughes.

24    On 27 November 2020 Ashurst wrote again to Mr Leo, urging him to obtain Dr Sackett’s report repeating some of the matters raised in their 16 October correspondence. They explained that Dr Sackett was appointed by this Court as an independent anthropological expert and that in his report he had addressed such matters as “who were the Wonnarua people, what their traditional laws and customs were, and what was the extent of country traditionally associated with the Wonnarua people”. They asserted that those matters were “of critical relevance to [his] assessment of the [a]pplication”. They pleaded with Mr Leo to call for the documents and provide Ashurst with copies. They added, arguably contrary to the implied undertaking:

We should also mention that our client is aware that Dr Sackett’s report contains views contrary to those expressed by the applicants in the Application and that are adverse to the applicants.

25    In the event that Mr Leo was unable to obtain Dr Sackett’s report from the s 10 applicants and provide it to them, they wrote that Glencore would need to consider whether to apply to the Court and foreshadowed the need to seek an extension of time to deliver its final comments if Ass Prof Leo was unable to provide it with the report.

26    On 1 December 2020, when pressed by Ashurst, Mr Leo said he would invite Mr Franks and Mr Lester to consider submitting the native title reports “as part of their final comments”. He went on to say, however:

[Y]our request pertains to trying to obtain a report that is described by you as being an ‘expert desktop review’ commissioned by the FCA in relation to a native title matter. Or put another way, the report has not been written in relation to the Application nor to the representations duly received, and it is clearly not particular to the Aboriginal cultural heritage of the Specified Area, and it evidently serves to give opinion about other people’s documents and opinion.

27    In a letter to Mr Leo dated 4 December 2020, which foreshadowed the present application, Ashurst wrote:

The proposition that the Sackett Report does not directly address the application or the applicants’ representations is not relevant to whether it should or should not be considered by you. As should have been apparent from our letters, the Sackett Report addresses issues which are directly relevant to your report. Those issues, covering the identity of the Wonnarua people, their traditional laws and customs and the extent of country associated with them, are directly relevant to the matters in section 10(4) of the Act. The report also addresses matters relevant to the reliability of much of the evidence put before you by the applicant.

The proposition that the Sackett Report is not particular to the Aboriginal cultural heritage of the specified area is self-evidently wrong given the subject matter of the report described above.

It is difficult to understand what you mean by “it evidently serves to give opinion about other people's documents and opinion”. If you mean to say that the report simply represents Dr Sackett's view and nothing more then it is difficult to see how that conclusion could be reached without having read the report. In any case, Dr Sackett could be expected to have formed his views on the basis of underlying primary facts, some of which may not have been put before you for your consideration and report.

Moreover, Dr Sackett is undoubtedly qualified. He was entrusted by the Federal Court with the task of preparing a report on a number of matters, many of which are relevant to those which you are called upon to consider. It must be that his opinions and the reasoning process by which he has reached them are themselves likely to be of assistance to you in preparing your report.

Finally, the Sackett Report is referred to by Dr Draper, the applicant's expert, and it is only reasonable that you consider Dr Draper's comments in context.

28    Following the grant of an earlier request for an extension of time, Glencore’s representations are due to be made to the reporter by 17 December 2020.

29    Against this background, the question for resolution is whether Glencore has established that there are special circumstances warranting the grant of leave to enable it to use the Sackett report for the purpose of making representations to Mr Leo.

30    Glencore submits that the Sackett report is plainly relevant to the s 10 application in that it goes to the question of whether the oral histories underpinning Ass Prof Draper’s opinions and those received directly by Mr Leo are reliable sources of ethnographic information. It argues that Mr Leo is likely to be assisted by Dr Sackett’s analysis in the preparation of his own report.

31    Mr Franks and Mr Lester, however, oppose the application. In an affidavit sworn on 14 December 2020 Mr Franks notes that the Sackett report was prepared for the purpose of the mediation in the Native Title Proceedings, was never “read into court” or tested in open court. He contends that it contains numerous inaccuracies. He deposed that he is “very concerned” that release of the report will cause substantial damage to “various First Nations communities”. He went on to say:

If released, this information may undermine the identities of a number of Wonnarua peoples descended from Matilda Hughes and other named apical ancestors.

Identity is very significant to First Nations peoples. It will cause enormous pain and hurt to First Nations peoples if their identity is questioned by an untested desktop study, especially in circumstances where there is other evidence which directly contradicts the Sackett Report’s assertions.

An order permitting the Sackett Report to be released may give rise to the perception of legitimacy to the untested speculative views in the Sackett Report.

Not only will the assertions contained in the Sackett Report will be detrimental to the human right to identity of First Nations peoples, but it would allow a coal mining company to use those untested assertions against the Wonnorua peoples who are attempting to protect Wonnarua lore and customs through our application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

32    He sought an adjournment of 30 days in order to obtain additional evidence from First Nations people about the detrimental impact on them if the Sackett report were to be released.

33    The relevant principles in which special circumstances may justify relief from the Harman undertaking were outlined by Wilcox J in Springfield Nominees at 225 and approved by the Full Court in Liberty Funding at [31]. In short, it is enough that there is “a special feature”, that is, a feature not usually present, which provides a reason for modifying the undertaking or relieving the party in question from it in the exercise of the Court’s discretion. As the Full Court put it in Liberty Funding:

The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.

34    In Springfield Nominees, Wilcox J observed that it is neither possible nor desirable to exhaustively list the factors that bear upon the exercise of the discretion but they include (at 225):

    the nature of the document;

    the circumstances in which the document came into existence;

    the attitude of its author and any prejudice that might be caused to the author;

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

    the nature of the information in the document, especially whether it contains personal data or commercially sensitive material;

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

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

35    In Springfield Nominees Wilcox J considered the last factor “perhaps the most important of all”. For this reason, no doubt, the relevance of the document to the later proceeding is a significant consideration.

36    The extent of “commonality” in the two proceedings alone may give rise to special circumstances as in Sweetman v Australian Thoroughbred Finance Pty Ltd (Federal Court of Australia, 23 July 1992, unreported), which Wilcox J followed in Springfield Nominees. In Sweetman, there were some common respondents and some common facts in the two actions. Other judges have similarly held that special circumstances arose from the connection between the two proceedings: see, for example, Australian Prudential and Regulation Authority v Rural & General Insurance Limited (ACN 000 007 492) [2006] FCA 151 at [9] (Gyles J).

37    On balance I am not satisfied that Glencore has established the existence of special circumstances or that it is in the interests of justice to grant Glencore’s application.

38    On the one hand, the document is a report of an independent expert. It came into existence as a result of an application to which Mr Franks and Mr Lester were parties. But for the decision of Mr Franks and Mr Lester to discontinue the Native Title Proceeding, there was at least a real prospect that it would have been admitted into evidence and therefore enter the public domain. The document does not contain commercially sensitive material or personal data of the kind I expect Wilcox J had in mind. The Native Title Proceeding and the s 10 application have some common features, notably the common applicants and the common interest Glencore has in them.

39    On the other hand, while the Sackett report may have found its way into evidence had the Native Title Proceeding not been discontinued, Mr Franks contended that the report was prepared for the purpose of a mediation in the Native Title Proceeding. The orders made by Perry J do not limit its use in this way but it is apparent from the Joint progress report delivered to the Court which supported those orders that it was borne out of the mediation process and conceived as a vehicle to assist in the settlement of the proceeding or issues in the proceeding. One should be cautious about granting relief from the Harman undertaking in these circumstances. Giving leave to Glencore, which was not a party to the mediation, to use the report for an ulterior purpose could conceivably affect the willingness of First Nation peoples to cooperate with, or participate in, the Court’s processes.

40    The contents of the Sackett report are clearly sensitive and controversial. As it was not tendered in evidence in the Native Title Proceeding, Dr Sackett was not subjected to cross-examination. Mr Franks contends that the use of the report even for the limited purpose proposed would cause irreparable harm, not only to him and Mr Lester and the people they claim to represent but potentially to third parties, too. Glencore have known about the s 10 application since August at least. Yet its application for leave to use the Sackett report was made within days of the extended deadline for representations, making it impossible for Mr Franks and Mr Lester to provide cogent evidence to support their claim unless the application were to be adjourned to permit them to do so. Third parties who are potentially affected have had no opportunity to be heard. In view of the looming deadline, an adjournment would render the current application nugatory. The matter should be determined on its merits. But the potential for unfairness, if not actual prejudice, bears upon the exercise of the discretion. So, too, does the delay in making the application, a delay which is largely unexplained.

41    To the extent that the evidence discloses anything about Dr Sackett’s attitude to Glencore’s application, it suggests that he would at least be uncomfortable with it. Having regard to the matters he raised in his conversation with Ms Fernandez, release of the report to Mr Leo might embarrass, if not prejudice Dr Sackett.

42    It is arguable that the Sackett report could affect the weight to be given to Ass Prof Draper’s report. Having given the matter anxious consideration, however, I have concluded that it is most unlikely. The omission from Ass Prof Draper’s report of any discussion of the substance of the Sackett report is readily explained by the fact that the Harman undertaking would preclude it. And the issues with which the Sackett report deals are different from the issues upon which Mr Leo is required to report.

43    As Mr Franks submitted, the Sackett report deals with the geographical limits of the country occupied by the Wonnarua peoples and the family lineage of certain individuals. On close inspection it appears to have little, if any, relevance to any of the matters the reporter is required to consider.

44    In order to bring their application under s 10 of the Heritage Act, Mr Franks and Mr Lester did not need to be native title holders or claimants. Nor did they need to be Wonnarua people. Their standing to apply to the Minister rested on their Aboriginality; it did not depend on an association of any kind they might have to the land the subject of the application: Williams v Minister for the Environment & Heritage [2003] FCA 627 at [6] (Lindgren J). The evidence before the Court indicates that they are Aboriginal. Glencore did not suggest otherwise. Unlike in the Native Title Proceeding, they were not required to swear an affidavit or provide other evidence to show that they were authorised by all members of the native title claim group to make the application and deal with matters arising in relation to it: cf. Native Title Act 1993 (Cth), s 62. Moreover, the success of the s 10 application does not depend on them establishing native title. In contrast to the Native Title Proceeding, the application under the Heritage Act does not require proof of a connection to land (or waters) by reason of “traditional” (in the sense of pre-sovereign) laws and customs: cf. Native Title Act, s 223(1); Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [75]. In other words, the issues for determination on the s 10 application are different from the issues considered by Dr Sackett. Thus, contrary to Glencore’s submissions, it is doubtful that Mr Leo would derive any assistance from the Sackett report. It follows that it is unlikely that a grant of leave to use the report would make any contribution to the achievement of justice in the s 10 process.

45    For these reasons I decline to make the order Glencore seeks. The originating application should be dismissed. Costs should follow the event.

Associate:

Dated:    15 December 2020