Federal Court of Australia

Pabai v Commonwealth of Australia [2022] FCA 836

File number(s):

VID 622 of 2021

Judgment of:

MORTIMER J

Date of judgment:

18 July 2022

Catchwords:

PRACTICE AND PROCEDURE – discovery – where categories of discovery remain in dispute between the parties – referral to Registrar for further mediation

PRACTICE AND PROCEDURE – amendments to pleadings – where pleadings have closed, but the proceeding is still at an early stage – leave granted to amend pleadings

PRACTICE AND PROCEDURE – trial dates – requirement for an expeditious resolution – requirement for favourable weather conditions for on-country hearing – trial divided into hearing of lay evidence and hearing of expert evidence, so that trial dates are maintained

Legislation:

Federal Court Rules 2011 (Cth), r 16.51

Division:

General Division

Registry:

Victoria

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

37

Date of hearing:

15 July 2022

Counsel for the Applicants:

Ms F McLeod SC with Ms L Barrett

Solicitor for the Applicants:

Phi Finney McDonald

Counsel for the Respondent:

Mr S Lloyd SC with Ms Z Maud

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

VID 622 of 2021

BETWEEN:

PABAI PABAI

First Applicant

GUY PAUL KABAI

Second Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

order made by:

MORTIMER J

DATE OF ORDER:

18 JULY 2022

THE COURT ORDERS THAT:

Pleadings amendments

1.    Leave is granted for the applicants to file and serve an amended statement of claim by 4pm on 12 August 2022.

2.    By 4pm on 19 September 2022, the respondent is to file and serve any amended defence.

3.    Any interlocutory application on behalf of the respondent in relation to the amended statement of claim is to be made by 4pm on 19 September 2022.

Discovery

4.    The question of the most expeditious and cost effective way for discovery of the presently agreed categories of documents be referred to mediation before a Registrar of the Court at a date and time to be confirmed, with such mediation to be completed by 19 August 2022.

5.    The mediation is to be conducted in person if practicable.

6.    The respondent is to ensure that persons with appropriate knowledge of the detail of, and mechanisms for, the respondent’s discovery processes attend the mediation referred to in Order 4 of these orders.

7.    By 4pm on 19 August 2022, the parties are to agree on an Electronic Discovery Protocol for the purpose of exchanging electronic documents for use in this proceeding.

8.    As soon as practicable after 19 August 2022, the respondent is to commence discovery of documents in the categories identified as agreed in Schedule 1 to the letter marked as Annexure EN-5 to the affidavit of Emily Nance filed on 14 July 2022 (the discovery letter), with discovery to be given in tranches on a progressive basis.

9.    The parties are to agree dates for the provision of tranches of discovered documents, and in default of agreement the Court will determine those dates at the next case management hearing.

10.    Subject to further order, the respondent is not required to give discovery of the documents in the categories identified as disputed in Schedule 2 to the discovery letter.

Trial

11.    The trial referred to in Order 9 of the orders made on 17 March 2022 be confined to a hearing of lay evidence (the lay evidence hearing).

12.    The trial proceed by way of affidavit.

13.    By 4pm on 17 February 2023, the applicants file and serve any affidavits from lay witnesses upon which they intend to rely at trial.

14.    By 4pm on 21 April 2023, the respondent file and serve any affidavits from lay witnesses upon which it intends to rely at trial.

15.    Prior to the lay evidence hearing, the parties may apply to the Court for orders that certain lay evidence in chief be given orally.

16.    The lay evidence hearing is to be conducted primarily in Cairns, Queensland, at a venue to be determined, with a week reserved for the conduct of a viewing and the hearing of any on-country lay evidence at locations to be determined in the Torres Strait.

Other

17.    The proceeding be listed for a further judicial case management hearing in the week commencing 22 August 2022 to be conducted via remote technology, at a time and date to be determined.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    These reasons explain why the Court has made the orders it has today, which do not reflect entirely what either party to this proceeding has sought. However, they reflect what the Court considers to be the appropriate case management for this proceeding, so as to focus on the real issues in dispute between the parties and advance the matter to trial in a cost effective, proportionate and efficient manner.

2    This is a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). The applicants identify as Torres Strait Islanders from the Gudamalulgal Nation. They seek relief on their own behalf and on behalf of all persons of Torres Strait Islander descent who they contend, at any time during the period from about 1985 and continuing, have suffered loss and damage as a result of the conduct of the Commonwealth. They contend that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect:

(a)    Torres Strait Islanders; and/or

(b)    Torres Strait Islanders’ traditional way of life, including taking steps to preserveAilan Kastom (defined in the statement of claim as the body of customs and traditions of Torres Strait Islanders generally, or of a particular community or group of Torres Strait Islanders, including connection to country, cultural ceremonies, burial rites, visiting sacred sites and hunting and fishing); and/or

(c)    the marine environment in and around the protected zone (a term defined in the applicants’ current statement of claim to be an area defined by a treaty between Australia and Papua New Guinea regarding the Torres Strait Islands), including the Torres Strait Islands,

from the current and projected impacts of climate change in the Torres Strait Islands.

3    The applicants contend the Commonwealth has breached, and remains in breach of that duty of care.

4    The applicants seek an injunction on their own behalf and on behalf of group members requiring the Commonwealth to implement such measures as are necessary to:

(a)    protect the land and marine environment of the Torres Strait Islands and the cultural and customary rights of the Torres Strait Islanders from greenhouse gas emissions into the Earth’s atmosphere;

(b)    reduce Australia’s greenhouse gas emissions consistent with the best available science target (a term defined in the current statement of claim to be the amount of greenhouse gases that can be emitted before the average global temperature rises by 1.5 degrees Celsius); and

(c)    otherwise avoid injury and harm to Torres Strait Islanders from greenhouse gas emissions into the Earth’s atmosphere.

5    They also seek damages for:

(a)    degradation of the land and marine environment, including life and coral reef systems;

(b)    loss of Ailan Kastom;

(c)    damage to their native title rights; and

(d)    physical and psychological injury.

6    They contend all or some of these losses are ongoing, due to the ongoing breaches of the Commonwealth’s alleged duty of care, and this is why they also seek injunctive relief.

7    In its defence, the Commonwealth rejects that it owes the duty of care pleaded by the applicants, and denies that it has breached the alleged duty of care in any event. The Commonwealth also denies that any loss or damage has been suffered, or will be suffered, as a result of any alleged breach of duty, and contends that the injunction sought by the applicants cannot be enforced by the Court.

8    In addition to the statement of claim and defence filed in this proceeding, the parties have filed concise statements of their respective cases. In accordance with the function to be served by concise statements in a proceeding such as this, the Court takes both the formal pleadings and the concise statements, cumulatively, to set out the parties’ respective cases.

9    Each of these documents, and each of the orders made in this proceeding to date, is publicly available on the Court’s online file for this proceeding.

10    On 17 March 2022 and following a judicial case management hearing, the Court listed the proceeding for trial, commencing on 6 June 2023 with an estimate of four weeks. The Court made orders programming the next steps towards trial, centred on discovery and the negotiation of appropriate categories of documents to be discovered. The orders provided that any issues about discovery that were unable to be agreed were to be referred to mediation before National Judicial Registrar Stride. This mediation occurred on 16 June 2022. The parties failed to resolve their dispute about appropriate categories of discovery.

11    At a further case management hearing on 15 July 2022, the parties outlined their respective understanding of the extent of the continuing discovery dispute. The Commonwealth read an affidavit affirmed by its solicitor, Emily Nance. This affidavit annexed correspondence between the parties’ legal representatives about discovery. This included a very recent letter sent by the Commonwealth on 13 July 2022, just before the case management hearing. This letter set out as schedules the agreed and disputed categories of discovery as at the date of the letter. At the hearing, counsel for the applicants handed up a further piece of correspondence between the parties’ representatives about this matter, dated 15 June 2022. In that letter, the applicants’ representatives confirmed the pleadings allege breaches of duty arising from the Commonwealth’s operational decision-making, and not just decision-making about policy or “high level” matters. Hence, they maintain the need for discovery in some of the presently disputed categories.

12    At the July case management hearing, the applicants did not dispute the accuracy of the schedules attached to the 13 July letter, and I have relied upon them in forming my views about appropriate orders.

13    The failed mediation, the correspondence between the parties and the submissions at hearing indicate the parties maintain different views about the proper scope of discovery. Nevertheless, substantial agreement has been reached, as reflected in schedule 1 to the 13 July letter from the Commonwealth. I accept the contents of that letter represented a considered position by the Commonwealth, and demonstrate the Commonwealth is attempting to cooperate and advance the discovery process as to the agreed categories. Even on the basis of those categories, the 13 July correspondence indicates the agreed categories are likely to generate more than 274,000 documents, and that does not include email searches, which have not been carried out. Senior counsel for the Commonwealth submitted that review and production of these documents would take far longer than the time provided for on the proceeding’s current timetable. While there was no application by the Commonwealth to vacate the trial dates, the correspondence foreshadowed one, and senior counsel for the Commonwealth indicated that the Commonwealth did not presently consider it feasible to maintain the trial dates in the face of the size of the discovery exercise, and the significant expert evidence to be adduced by both parties in this proceeding.

14    Senior counsel for the applicants emphasised the applicants did not wish to have voluminous discovery and were committed to reducing the scope of discovery as much as possible. Yet she maintained her instructions were that the disputed categories of discovery included documents relevant to the applicants’ case.

15    There is some tension in the position taken on behalf of the applicants, in terms of the extent of discovery but their determination to maintain the trial dates.

16    The applicants also foreshadowed amendments to their pleadings. On 4 July 2022, the applicants informed the Commonwealth of their intention to file and serve an amended statement of claim to clarify aspects of their case. The Commonwealth’s response noted that it would be required to amend its defence, contending the applicants would require leave to amend, and leave might be contested. The Commonwealth’s proposed orders set out a series of programming steps that included a contested leave application for the applicants to amend their pleadings.

17    At the case management hearing, the Court raised a number of possible ways to manage some of the present difficulties. The parties were willing to agree to some but not all of them. Having read the material, considered the parties’ submissions and reflected on the issues, I consider the appropriate, proportionate, cost effective and efficient way forward is the following:

(a)    The applicants should have leave to file, serve and rely upon an amended statement of claim.

(b)    Discovery should presently be limited to the agreed categories.

(c)    The parties should be referred to further mediation, preferably face-to-face, to attempt to narrow and rationalise discovery of the agreed categories of documents. Officers and representatives from the Commonwealth with a real and detailed knowledge of the processes necessary for the Commonwealth to give discovery should be present.

(d)    Discovery should be progressive by the Commonwealth and should start as soon as practicable after a protocol has been agreed.

(e)    The June 2023 trial dates should be maintained, but only for the hearing of lay evidence from both parties.

(f)    The lay evidence should be given by affidavit with the parties being able to request that certain evidence in chief be given orally if it is said to be significantly contentious.

(g)    Programming orders should be made for the lay evidence.

(h)    The hearing of expert evidence should occur in a separate tranche, in the second half of 2023.

(i)    The entire trial should be completed, and judgment reserved, by the end of 2023. Consistently with the expectations the Court has imposed on the parties, the Court will take all reasonable steps to hand down judgment as expeditiously as practicable, in the first few months of 2024.

18    That timetable would still mean the proceeding will have taken more than two, and probably around two and a half years from the time it was issued until judgment. Given what is at stake, and the nature of the proceeding, that amount of time is tolerable, but on the outer end of acceptable.

19    I turn to give a brief explanation of my reasoning for these orders.

Pleadings

20    There was a question whether the pleadings had closed and therefore the applicants did not need leave to amend: see 16.51 of the Federal Court Rules 2011 (Cth). In the first case management orders made in this proceeding, dated 23 November 2021, there was provision for a reply by the applicants. None was filed, and no leave sought for a variation to the time to do so. I consider the pleadings have closed and the applicants require leave to amend their statement of claim. Rule 16.51 does not apply. Nevertheless, on any view the proceeding is at an early stage. The applicants have informed the Court that the amendments arise from clarifications they seek to make, which in turn arise from correspondence between the parties. It is appropriate the applicants clarify matters the Commonwealth has inquired about. Senior counsel for the Commonwealth submitted that there had not yet been any application to strike out the pleadings, or request for particulars, but that the Commonwealth may seek to use these processes. He submitted a contested leave process may avoid them. But understandably, he could not undertake to the Court that if a contested leave process occurred, the Commonwealth would not make any other interlocutory applications about the applicants’ pleadings.

21    The appropriate course in this proceeding is to give the applicants leave to amend. They are on notice about the Commonwealth’s concerns. They well understand the novelty of their allegations and the need for precision. All parties are capably represented, and know what is required of pleadings, in order to inform the other party of the case to be presented. That said, there is potential for this proceeding to become bogged down in pleadings fights between lawyers. That is an unproductive use of the parties and the Court’s resources. At least on the side of the Court and the Commonwealth, those are public recourses which should be responsibly and carefully expended. As the Federal Court Act, the Rules and the Court’s Practice Notes make abundantly clear, this Court operates under a modern and flexible approach to case management, with an eye to reaching as expeditiously as possible the real issues in dispute between the parties, in a way which is fair, but which is also proportionate.

22    The Court would not expect the Commonwealth to make any interlocutory application concerning the applicants’ amended statement of claim, unless it is about a matter of such substance that this is the only course appropriate, and there is no other way for the Commonwealth’s concerns to be addressed. The Court’s orders provide that any interlocutory application about the pleadings is to be made within a limited period of time.

Discovery

23    Having considered the presently agreed categories, and the Commonwealth’s position on the size of the task presented by discovery in accordance with those categories, in my opinion the appropriate way forward at the present time is to limit the Commonwealth’s discovery obligation to those agreed categories.

24    Even with that limit, the parties will need to be practical, and work together to compromise on what is required of the Commonwealth, to ensure the process is as targeted as it can be. In the correspondence, a broad estimate of around six months is given for the discovery process under the agreed categories, and that is – as I have noted – without taking into account discovery of emails. Careful parameters will need to be agreed by the parties so that discovery remains manageable on the agreed categories. That is the purpose of the further mediation – refinement of search terms, refinement of repositories to be searched, perhaps consideration of what facts might be agreed to avoid discovery – all these tools should be actively employed in the coming months. There may be other tools or processes that can be employed; the Court encourages the parties to be proactive in working out what processes will in a practical sense fulfil their trial preparation needs, while remaining as time and cost effective as possible.

25    It is apparent from the correspondence that the Commonwealth has done enough work already that it should be possible for it to commence discovering documents to the applicants in the near future. This should occur as soon as an electronic protocol has been agreed. Discovery should proceed in tranches as documents become available. This will also assist the applicants in forming views about whether there is a justifiable and substantive need to add to the existing discovery categories.

26    The Commonwealth has taken a reasonable position to this point. It may be it needs to apply more resources to this trial from here on, but its rationale for limiting its agreement on discovery categories is sufficiently sound for the Court to require the parties to proceed on that basis.

27    The applicants will not at this stage be prohibited from seeking discovery in further categories, but in my opinion the appropriate time for this will be once they have a substantial idea of what documents have been discovered through the agreed categories, and whether there are any substantive categories of documents that are unlikely to be produced through the agreed categories.

Trial

28    There is no denying the unremitting march of the sea onto the islands of the Torres Strait. The reality for the people of the Torres Strait is that they risk losing their way of life, their homes, their gardens, the resources of the sea on which they have always depended and the graves of their ancestors.

29    Whether the Commonwealth has legal responsibility for that reality, as the applicants allege in this proceeding, is a different question. However, the reality facing Torres Strait Islanders gives this proceeding some considerable urgency. The applicants, and the Torres Strait Islanders they represent, are entitled to know whether the Commonwealth is legally responsible in the way alleged, or not.

30    The Court considers it is appropriate and necessary for the June 2023 trial dates to be maintained. However, recognising the realities of discovery even on the agreed categories, and also recognising the significant role of expert evidence in this proceeding, I consider the appropriate way forward is to split the trial into tranches. The first tranche, in June 2023, will take all the lay evidence from both parties. I consider it is appropriate to make orders today for the filing of affidavits for the lay evidence. I have used the applicants’ timing to some extent, but extended the time allowed for the respondent’s lay evidence. If the timetable causes the parties difficulties in terms of filing dates for affidavits, they can propose amended dates.

31    One advantage of splitting the lay and expert evidence is that the experts will have the benefit of the lay evidence in the consideration and finalisation of their expert opinions. That does not mean that the filing of expert reports should await completion of the lay evidence, but it may mean that the experts can consider the lay evidence before any conclave or experts conference occurs.

32    I agree with the applicants that it is appropriate to take evidence in the Torres Strait, including probably a relatively extensive view. That might occupy one of the four weeks. That week will need to take account of the weather conditions, and maintaining the June dates will allow for that to occur. The remainder of the lay evidence hearing should occur in Cairns, which is an accessible location for many Torres Strait Islanders, and is a regional city large enough to provide suitable facilities. The venue in Cairns can be the subject of further discussion. The reality of the Court’s hearings timetable, and indeed the timetables of legal representatives, is that we all work with commitments and listings fixed far in advance. If the June dates were to be vacated, it is unlikely there would be any other mutually suitable dates in 2023. That would occasion an unacceptable delay to the resolution of this proceeding.

33    The parties legal representatives are experienced and capable litigators. It is a common experience in litigation that as evidence is filed, facts agreed and especially once the start of a trial approaches what is truly in issue between the parties becomes clearer. Months can be spent fighting over documents which end up having little or no probative value to the real issues between the parties. If key documents have not been discovered through agreed categories, that is likely to become apparent as the proceeding is prepared for trial. No Court acting reasonably is going to refuse to order production of key documents with real probative value, and no litigant such as the Commonwealth acting reasonably is going to refuse to produce them, unless on a ground such as public interest immunity, which the Court can readily and expeditiously determine during the trial process.

34    I consider the question of whether further discovery is required can be addressed as trial preparation continues. If after discovery of the agreed categories has progressed, the applicants still consider there are categories of documents with likely probative value to their case that have not been discovered, then they can apply for further orders for discovery.

Closer case management

35    Now that the parameters of the trial are more settled it is appropriate the Court become more closely involved in case managing the proceeding, to ensure disputes are kept to a minimum, that the parties compromise appropriately where they can, and so that the Court can be available to resolve interlocutory disputes expeditiously when they arise.

36    Going forward it is likely there will be monthly or six-weekly case management hearings, with the parties required to report progress in accordance with the trial timetable.

Conclusion

37    There is a strong public interest in this matter being decided with reasonable expedition. By June 2023 the proceeding will have been on foot for more than 18 months. In most peoples lives, that is a long time. For the people of the Torres Strait, it is a long time to be waiting, and watching the march of the sea on a daily basis. It is in the interests of all parties that the important questions raised by this proceeding be determined, one way or the other, as soon as reasonably practicable.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:

Dated:    18 July 2022