Federal Court of Australia

Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 4) [2023] FCA 1083

ORDERS

THE COURT NOTES THAT:

A.    The following orders are made in respect of each of the Marlinyu Ghoorlie native title determination application (proceeding WAD 647 of 2017) and the Karratjibbin native title determination application (proceeding WAD 38 of 2022). References to the “Applicants” are references to the Applicant in each of those native title determination applications. References to the “Participating Parties” are references to the Applicants, the First Respondent in each of those native title determination applications and to each other respondent who filed a notice indicating that they wish to take an active part in the hearing of the separate questions in accordance with order 3(a)(i) of the orders made by Bromberg J on 22 December 2022.

B.    The Central West Goldfields proceeding (proceeding WAD 65 of 1998) was a native title determination application covering an area of land that falls almost entirely within the area of the Marlinyu Ghoorlie native title determination application.

C.    On 19 September 2000, Justice Carr made an order in the Central West Goldfields proceeding that, unless otherwise ordered or agreed between the parties, expert reports and genealogies, and related source materials provided under request, were subject to the following restrictions:

(i)    the contents of the document were not to be communicated to any person other than for the purpose of the proceedings;

(ii)    the document was not to be copied except for the purposes of the proceedings and after notice of each copy to be made having been given in writing to the solicitor for the party who filed or provided the relevant document; and

(iii)    the document was not to be used for any purpose other than for the proceeding.

THE COURT ORDERS THAT:

1.    The legal representatives of the Participating Parties may inspect and read each of the documents listed in Annexure A to this order (the Central West Goldfields Reports) subject to the following conditions or any further order:

(a)    the contents of the Central West Goldfields Reports are not to be communicated to any person other than for the purpose of obtaining instructions and making any submission in support of an application made under order 3 or an objection under order 4; and

(b)    the legal representatives may show or disclose the contents of the Central West Goldfields Reports to any person if and to the extent it is necessary to do so for the purpose described in paragraph (a) above.

2.    To the extent that the Central West Goldfields Reports are in the possession of the State, the State is to provide a copy of any of the Central West Goldfields Reports to any Participating Party who requests a copy.

3.    A Participating Party may apply to the Court for leave to use a Central West Goldfields Report during the hearing of lay evidence in this proceeding by filing and serving an application, any evidence in support and an outline of submission not exceeding 10 pages on or before 19 September 2023.

4.    A Participating Party may object to an application made under order 3 by filing and serving a notice of objection, any evidence in support and an outline of submission not exceeding 10 pages on or before 26 September 2023.

ANNEXURE A

The following reports and documents filed or provided to the Court in proceeding WAD 65 of 1998 (Central West Goldfields):

1.    Haebich, Anna. "Applicant's Historical Report" filed 30 July 2001.

2.    Muller, Craig. "Applicant's Historical Report" filed 30 July 2001.

3.    Stevens, Robin. "Applicant's Anthropologist's Interim Report" filed 15 August 2001 (as amended by corrigenda filed 21 September 2001).

4.    Stevens, Robin. "Applicant's Supplementary Anthropological Report" filed 20 November 2001.

5.    Stevens, Robin. "Anthropologist's Report of Consultations with Cadley Sambo, a claimant in the Gubrun Native Title Claim" filed 20 November 2001.

6.    Stronach, Chris. "First Respondent's Historical Expert Report" filed 31 January 2003.

7.    Brunton R, "Anthropological Assessment of the Central West Goldfields Claim" filed 31 January 2003.

8.    The following documents marked for identification:

(c)    MFI #7(a): Document Titled The Descendants of Muradi;

(d)    MFI #7(b): Document Titled The Descendants of Nellie; and

(e)    MFI #7(c): Document Titled The Descendants of Warada.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1    The applicant in proceeding WAD 647 of 2017 claims native title rights and interests on behalf of the Karlamaya (Kalamaia) Kapurn (Gubrun, Kaparn) people, also known as Karlaku (Kalaako, Kalarku) people (Karlamaya Kapurn people) in respect of an area located in the Western Goldfields region of Western Australia (the Marlinyu Ghoorlie claim). Broadly described, the claim area takes in Kalgoorlie in the east and extends past Kalannie in the west and Southern Cross to the south.

2    Part of the area the subject of the Marlinyu Ghoorlie claim is also the subject of a second native title application (proceeding WAD 38 of 2022) which is made on behalf of the Karratjibbin people (the Karratjibbin claim). The Karratjibbin claim area is wholly within the Marlinyu Ghoorlie claim area. It shares the western boundary of the Marlinyu Ghoorlie claim and extends east past Southern Cross, but does not extend as far as Coolgardie or Kalgoorlie.

3    The Marlinyu Ghoorlie claim and the Karratjibbin claim are set down for trial commencing on 2 October 2023 in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim areas?

(b)    In relation to that part of the claim areas where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

4    In both proceedings, a number of respondent parties oppose the applicants’ claims on the basis of competing claims to hold native title rights and interests.

5    The parties who are participating in the hearing of the separate questions (whom I will refer to as “Participating Parties”) are the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, the first respondent (the State of Western Australia) and each other respondent who notified the Court that they wish to take an active part in the hearing in accordance with order 3(a)(i) of the orders of the Court made on 22 December 2022.

6    On 11 August 2023, the State filed and served an interlocutory application in the Marlinyu Ghoorlie and the Karratjibbin proceedings seeking the following orders:

The First Respondent's legal representatives are given leave to inspect, copy and use each of the documents listed in Annexure A to this order subject to the following conditions or any further order:

(a)     the contents of the document are not to be communicated to any person other than for the purpose of these proceedings;

(b)     the document is not to be copied or provided to any person other than for the purpose of these proceedings and must be provided with a copy of these orders placed at the front of each document provided; and

(c)     the document is not to be used for any purpose other than for these proceedings.

Annexure A

Reports filed in Central West Goldfields WAD 65 of 1998

1.     Haebich, Anna. “Applicant's Historical Report” filed 30 July 2001.

2.     Muller, Craig. “Applicant's Historical Report” filed 30 July 2001.

3.     Stevens, Robin. “Applicant's Anthropologist's Interim Report” filed 15 August 2001 (as amended by corrigenda filed 21 September 2001).

4.     Stevens, Robin. “Applicant's Supplementary Anthropological Report” filed 20 November 2001.

5.     Stevens, Robin. “Anthropologist's Report of Consultations with Cadley Sambo, a claimant in the Gubrun Native Title Claim” filed 20 November 2001.

6.     Stronach, Chris. “First Respondent's Historical Expert Report” filed 31 January 2003.

7.     Brunton R, “Anthropological Assessment of the Central West Goldfields Claim” filed 31 January 2003.

8.     The following documents marked for identification:

(a)     MFI #7(a): Document Titled The Descendants of Muradi

(b)     MFI #7(b): Document Titled The Descendants of Nellie

(c)     MFI #7(c): Document Titled The Descendants of Warada

7    I will refer to the documents listed in Annexure A to the interlocutory application as the “Central West Goldfields Reports”.

8    The interlocutory application was supported by an affidavit affirmed on 11 August 2023 by Sheila Begg who is a Senior Assistant State Solicitor at the State Solicitor's Office. In her affidavit, Ms Begg deposed to the following matters:

(a)    The Central West Goldfields proceeding (being proceeding WAD 65 of 1998) covered an area of land that falls almost entirely within the external boundary of this proceeding.

(b)    On 19 September 2000, Justice Carr made an order (the Restricted Use Order) in the Central West Goldfields proceeding that, unless otherwise ordered or agreed between the parties (to that proceeding), expert reports and genealogies, and related unpublished source materials provided under request, were subject to the following restrictions:

(i)    the contents of the document were not to be communicated to any person other than for the purpose of the proceedings;

(ii)    the document was not to be copied except for the purposes of the proceedings and after notice of each copy to be made having been given in writing to the solicitor for the party who filed or provided the relevant document; and

(iii)    the document was not to be used for any purpose other than for the proceeding.

(c)    A search of the Court file indicates that the Restricted Use Order made by Justice Carr has not been vacated.

(d)    On 12 July 2023, the Karratjibbin applicant filed an expert anthropological report by Dr Brendan Corrigan. In the report, Dr Corrigan includes a list of “Additional Reference Material which may be brought into any further draft”.

(e)    Ms Begg believes that certain reports included in Dr Corrigan’s list were filed in the Central West Goldfields proceeding and were subject to the Restricted Use Order.

(f)    The State seeks permission to have access to and use the expert reports filed in the Central West Goldfields proceeding in the terms set out in the interlocutory application in order to ensure that the State is able to have regard to relevant materials in this proceeding in its preparation and participation in the hearing.

9    The State’s application was not opposed by the Marlinyu Ghoorlie applicant or the Karratjibbin applicant. By a written submission filed on 17 August 2023, the Marlinyu Ghoorlie applicant stated that it had no objection to the State’s application, provided that it is also given access to the documents for the same purpose (that is, for its own case preparation, including briefing its own experts with the documents). By a written submission filed on 18 August 2023, the Karratjibbin applicant also stated that it had no objection to the State’s application, but also sought access to the documents for the same purpose. The Karratjibbin applicant also stated that:

The Karratjibbin Applicant contends that Dr Corrigan has not received, reviewed or relied upon this Additional Reference Material, however, say that it is necessary for their [sic] Dr Corrigan to review and consider this material for the purposes of any further or supplementary report.

10    The Court received objections to the State’s application from a respondent, Elizabeth Sambo, and a non-party, Dorothy Dimer. By email dated 17 August 2023, Ms Sambo notified her opposition to the application. Ms Sambo submitted that the Restricted Use Order was made in the Central West Goldfields proceeding at the request of the claim group, members of which had since died. Ms Sambo submitted that the wishes of the deceased elders should not be ignored and varying the orders as sought by the State would be a serious breach of traditional law and culture. By email dated 18 August 2023, Dorothy Dimer also notified her objection to the application for similar reasons to those given by Ms Sambo. Ms Dimer identified herself as an elder for the Donaldson family, but Ms Dimer is not a party to the Marlinyu Ghoorlie proceeding or the Karratjibbin proceeding.

11    Following a case management hearing in which the State’s application, and the opposition to the application, was discussed, the State filed an amended interlocutory application seeking the following orders:

1.    The legal representatives of the Participating Parties may inspect and read the documents listed in Annexure A to this order subject to the following conditions or any further order:

(a)    the contents of the document are not to be communicated to any person other than for the purposes of obtaining instructions and making any submission in support of a request under order 2 or an objection under order 3;

(b)     the legal representatives may show or disclose the contents of the document to any person where it is necessary to do so for the purpose described in (a) above.

2.     On or before 6 September 2023, any Participating Party who requests leave to use a document in Annexure A during the hearing of lay evidence from 2 to 20 October 2023 must file any evidence in support of that request and an outline of submission not exceeding 10 pages setting out the basis for that request.

3.     On or before 13 September 2023, any Participating Party who objects to a request made in accordance with order 2 above shall file any evidence in support of that objection and an outline of submission not exceeding 10 pages setting out the basis for that objection.

12    The Karratjibbin applicant also filed a communication received from Dr Corrigan dated 1 September 2023. In the communication, Dr Corrigan extracted a subset of the documents referred to in his list of “Additional Reference Material”, being reports that are not publicly available. In respect of those reports, Dr Corrigan stated that:

(a)    The reports were prepared in the context of research into Aboriginal connections to the area claimed by the Karratjibbin application.

(b)    The reports have previously been considered by Dr Corrigan and referred to by him in a separate report prepared in 2018, in relation to effectively the same (or at least very similar) area as claimed in the current proceedings. Accordingly, Dr Corrigan either knows there to be relevant information in them or in some cases Dr Corrigan suspects that there is information in them “of direct relevance to most fully understanding relevant Aboriginal people’s connections to each other and the claimed land”.

(c)    In Dr Corrigan’s opinion, it is relevant to revisit these reports so that it can be established that all observations of relevance have been considered and allowed for in a full analysis.

(d)    The majority of the documents were prepared under contract by the Goldfields Land and Sea Council, most were filed in Court for various matters, and some were prepared for respondent parties and also filed in Court.

13    The State’s amended interlocutory application raises the question whether the Court should give leave for the Participating Parties in these proceedings to inspect, read and potentially use documents that were prepared for and filed in the earlier Central West Goldfields proceeding. Leave of the Court is required both because the documents would ordinarily be subject to the implied undertaking and because of the Restricted Use Order made by Carr J in 2001.

14    The Central West Goldfields claim never progressed to trial and therefore the historical and anthropological reports filed in the proceeding were never adduced in evidence at trial. The claim was not accepted for registration pursuant to s 190A of the Native Title Act 1993 (Cth) (NTA). On 24 August 2009, McKerracher J declined to make an order dismissing the claim pursuant to s 190F, providing the applicant with a further opportunity to take steps to satisfy the requirements for registration: see Sambo v State of Western Australia [2009] FCA 940. A year later, on 26 August 2010, McKerracher J dismissed the application under s 190F. His Honour concluded that the claim did not have the support of all the persons holding native title rights and interests and that all of the people holding native title rights and interests will not participate in the authorisation process for the claim: see Sambo v State of Western Australia (No 2) [2010] FCA 927 at [39]. Thus, the status of the Central West Goldfields Reports is that they are reports prepared by the parties to the Central West Goldfields proceeding and filed in that proceeding, but never adduced in evidence.

15    There is no common law right to obtain access to a document filed in a proceeding and held as part of a court record: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [31] per Spiegelman CJ. The Court file primarily exists for the purposes of the proceeding to which it relates. It is a record of relevant documents relating to the proceeding which the parties and the Court are able to access so that the proceeding can be conducted fairly and efficiently. Under the Federal Court Rules 2011 (Cth), a non-party to a proceeding may apply to obtain a copy of documents on the Court file with the leave of the Court. Typically, leave is granted where documents have been adduced in evidence, consistently with the principles of open justice: see for example Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 3) [2002] FCA 609 at [7] per Finkelstein J; Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [27] per Sackville J; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd; Ex parte Merlin BV (2008) 222 FCR 580 at [41]-[43] per Jacobson J; Oldham v Capgemini Australia Pty Ltd (2015) 241 FCR 397 at [24]-[27] per Mortimer J (as her Honour then was). As already noted, the Central West Goldfields Reports were not adduced in evidence because the proceeding never progressed to trial.

16    The forensic utility of the Central West Goldfields Reports in the Marlinyu Ghoorlie and Karratjibbin proceedings is unclear. The Central West Goldfields Reports are unlikely to be admissible in evidence in the Marlinyu Ghoorlie and Karratjibbin proceedings. The titles to the Central West Goldfields Reports indicate that they are reports prepared by the identified historians or anthropologists for the purposes of the Central West Goldfields proceeding. As such, the reports would be inadmissible hearsay in the Marlinyu Ghoorlie and Karratjibbin proceedings.

17    Ms Begg’s affidavit makes reference to Dr Corrigan’s report which includes a list of “Additional Reference Material which may be brought into any further draft”. The purpose of that list in Dr Corrigan’s report is unclear. It is included at the end of Dr Corrigan’s report after he provided a “reference list” of source material that he relied upon for the purposes of the report. I infer that Dr Corrigan has not relied on the “Additional Reference Material” in preparing his report. It is not clear whether that is because the “Additional Reference Material” is not available to him, or because it is the subject of the Restricted Use Order, or for some other reason. Neither the Karratjibbin applicant nor Dr Corrigan has explained why Dr Corrigan considers that he is entitled, in the course of this proceeding, to bring the “Additional Reference Material” into a “further draft” expert report. Such an approach to the preparation of expert reports in proceedings before the Court would be irregular and procedurally unfair. In any event, as Dr Corrigan has not relied on the “Additional Reference Material” in his report, Dr Corrigan’s report provides no basis for the State’s application.

18    In her affidavit, Ms Begg deposed that the State wishes to access the Central West Goldfields Reports in order to ensure that the State is able to have regard to relevant materials for the purposes of its preparation and participation in the hearing. Dr Corrigan has communicated that he has previously reviewed the Reports and considers there to be relevant information in the Reports for the purposes of the present proceedings.

19    I am concerned that the State’s application has been made very close to the commencement of the trial in these proceedings. No proper explanation has been provided for the delay in making the application. The existence of the Central West Goldfields proceeding and the Reports appears to have been known to the State (no doubt as a result of the State being a party to that proceeding). Although Dr Corrigan’s recently filed report referred to some of the Central West Goldfields Reports, it appears that Dr Corrigan did not rely upon those Reports in preparing his report.

20    Whilst the application has been made late, I consider that there is a possibility that the Central West Goldfields Reports will contain information that is relevant to the present proceedings and that has some forensic utility in the present proceedings. Given that possibility, there are four considerations that weigh in favour of granting the State’s amended application.

21    First, and as described in my reasons in Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060, since the commencement of the NTA there have been a large number of native title determination applications filed in the Goldfields region which have not progressed to determination or even hearing, including over a significant portion of the Marlinyu Ghoorlie claim (at [16]). One of those applications was the Central West Goldfields proceeding which was commenced in 1998. An unfortunate consequence of this history is that persons who had knowledge of the traditional laws and customs acknowledged and observed with respect to the area which is the subject of the present proceedings may have died without their knowledge having been received in evidence or otherwise recorded. It is possible that the Central West Goldfields Reports will record that knowledge.

22    Second, the State’s application is supported by both the Marlinyu Ghoorlie and the Karratjibbin applicants. Thus, the principal moving parties in the proceedings consider that there may be potential benefit in having access to the information contained in the Central West Goldfields Reports.

23    Third, the orders sought by the State will not adversely affect the current timetable for the hearing of the separate questions, and are therefore consistent with the efficient conduct of this proceeding.

24    Fourth, the State’s amended application respects the fact that the Reports were prepared on behalf of persons who are not parties to the present proceedings and the Reports are presently subject to the Restricted Use Order. Under the orders proposed by the State, initially the Participating Parties will only be permitted to have regard to the Reports for the purpose of determining whether a further application should be made to the Court to enable broader use of the Reports. If a further application is made, the Court will be in a better position to weigh the significance of the Reports to the present proceedings and any potential harm to persons by reason that the Reports may be read by a wider group of persons.

25    Having regard to the matters discussed above, I consider that it is in the interests of justice to allow the legal representatives of the Participating Parties to inspect and read the Central West Goldfields Reports in order to assess whether the Reports can and should be used for the purposes of the present proceedings. I therefore grant the State’s amended application.

26    As stated earlier, I infer that a copy of each of the Central West Goldfields Reports is in the possession of the State. A search of the Court file in the Central West Goldfields proceeding indicates that the Court may not have a copy of each of the Reports. In the circumstances, I will also make an order that, to the extent that the Central West Goldfields Reports are in the possession of the State, the State is to provide a copy of any of the Central West Goldfields Reports to any Participating Party who requests a copy. If the State is not in possession of any of the Central West Goldfields Reports, the parties may contact a Judicial Registrar of the Court to determine whether a copy is held on the Court file.

Associate:

Dated:    12 September 2023