Federal Court of Australia

Munkara v Santos NA Barossa Pty Ltd (No 4) [2024] FCA 414

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena issued on 31 January 2024 addressed to Market Forces Ltd is varied so as to delete paragraph 2 from the Schedule.

2.    The application of Jubilee Australia Research Centre Ltd to set aside or vary the subpoena addressed to it and issued on 31 January 2024 is dismissed.

3.    The application of Environment Centre (N.T.) Inc to set aside or vary the subpoena addressed to it and issued on 31 January 2024 is dismissed.

4.    The application of The Sunrise Project Australia Limited to set aside or vary the subpoena addressed to it and issued on 31 January 2024 is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    Earlier this year the Court issued subpoenas in relevantly identical terms to four non-party addressees:  Jubilee Australia Research Centre Ltd, Market Forces Limited, The Sunrise Project Australia Limited and Environment Centre (N.T.) Inc. Each subpoena compels the production of documents falling within these two categories:

1.    All documents recording or evidencing any payment or indemnity to the Applicants or the Environmental Defenders Office (EDO), and any underlying agreement of the same, in connection with Proceeding VID 907/2023 (Proceeding) (including prior to the commencement of the Proceeding).

2.    All documents recording or evidencing any communication with the EDO or the Applicants in relation to the Proceeding.

2    The addressees each report that they have no document meeting the description in Category 1. They each apply to have the subpoenas set aside to the extent that they compel documents in Category 2. Alternatively, they seek to have the subpoenas varied to substitute Category 2 with a more confined description.

3    The application of each addressee has been considered separately. For reasons that follow, the subpoena issued to Market Forces will be varied so as to delete Category 2. The applications of Jubilee, Sunrise Project and Environment Centre will be dismissed.

Background and Issues

4    The respondent, Santos NA Barossa Pty Ltd is a proponent of an offshore gas project known as the Barossa Project. Its activities include the laying of a 262km pipeline for the conveyance of gas from a field in the Timor Sea to a processing plant in Darwin. The pipelaying activities are subject to an environment plan approved by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).

5    The applicants in this proceeding are Aboriginal people from the Tiwi Islands. By their originating application they sought declaratory relief to the effect that Santos was obliged to submit an amended environment plan to NOPSEMA before engaging further in the pipelaying activities. In addition, they sought a final injunction restraining the pipelaying activities until an amended environment plan was submitted. The applicants alleged that the obligation to lodge an amended environment plan arose because there existed a new and significant risk within the regulations made under the Act, including threats to tangible and intangible cultural heritage.

6    Soon after the proceeding commenced, the first applicant, Mr Simon Munkara, was successful in obtaining an interim injunction restraining some works for the laying of the pipeline until the delivery of judgment:  Munkara v Santos NA Barossa Pty Ltd [2023] FCA 1348; Munkara v Santos NA Barossa Pty Ltd (No 2) [2023] FCA 1421.

7    For reasons given in Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9, I dismissed the originating application, discharged the injunction and made a further order that the applicants pay Santos’ costs (costs order). It appears to be common ground that the applicants are without the financial means to satisfy the costs order.

8    I have fixed deadlines by which a party may file an application for the costs order to be varied or substituted. Those deadlines were ordered because Santos had earlier indicated that it may make an application for an alternative or additional order that its costs be paid by persons other than (or in addition to) the applicants.

9    From the outset of the proceeding and until the delivery of judgment the applicants were represented by the Environmental Defenders Office (EDO). In the course of the trial, Santos served the EDO with a notice to produce documents relevant to questions of costs. Following judgment, the Court issued a subpoena addressed to the EDO, later varied by consent. At the commencement of argument on the present applications, Santos informed the Court that it had decided to bring a non-party costs application against the EDO, and provided the Court with a copy in draft. That application has since been filed.

10    Santos submits that the subpoenas issued to the addressees are intended in part to inform the issues arising on its application against the EDO. In addition, it readily accepts that the subpoenas are intended to assist it to make a decision about whether to make a costs application against any one or more of the addressees.

11    The addressees are activist organisations that are opposed to the Barossa Project and that engage in activities with a view to frustrating or stopping it. They advance two arguments for setting aside or varying the subpoenas, each proceeding from the starting point that they have no documents in their possession meeting the description in Category 1.

12    The first argument is that Category 2 is being used as a fishing expedition and therefore constitutes an abuse of process. They submit that there is presently no application against them before the Court, and hence no disputed question that documents in Category 2 may forensically inform. They submit that the subpoena process is being improperly invoked for purposes akin to an application for pre-action discovery against them. They submit that Santos is seeking to determine whether it has a case at all against them in circumstances where there is no reasonable basis to expect that the “key indicia” for non-party costs orders against them may exist.

13    The second argument is that Category 2 is too broad and therefore lacks a legitimate forensic purpose because it is “not appropriately targeted to the indicia” for a non-party costs order. They submit that is particularly so in circumstances where they have offered and remain willing to comply with alternate categories that are more targeted toward the circumstances in which a non-party costs order could conceivably be made. The alternate categories are set out at [39] below.

14    To resolve the arguments it is necessary to identify the principles that guide the Court’s discretion to make an order for costs against a non-party, as well as those guiding the discretion to issue and set aside a subpoena.

Powers and Principles

15    The Court may make an order for costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), including orders directed to non-parties. The purpose of a costs order is to compensate the party in whose favour the order is made:  Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, Gleeson CJ, Gummow, Hayne and Crennan JJ (at [25]). Ordinarily, that will be the successful party.

16    The power has otherwise been described as “absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation”:  Cretazzo v Lombardi (1975) 13 SASR 4, Bray CJ (at 11), cited by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd [1979] FCA 143; 28 ALR 201 (at 206).

17    As the Full Court explained in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) (2012) 200 FCR 154 (at [93]):

An order for costs is made because the successful party has been put to expense which that party would have avoided if the litigation or particular application had not been brought. The order for costs seeks to compensate the successful party for that result and for the costs to which that party has been put. The order is not in any sense meant to be a penalty; costs are awarded to indemnify a successful party in litigation, not to punish an unsuccessful party:  Latoudis v Casey (1990) 170 CLR 534 at 542 per Mason CJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at [1] per Brennan CJ.

18    The Full Court said that the only precondition to the exercise of power to make an order for costs against a non-party is that the non-party “has sufficient connection with the unsuccessful party and the litigation to warrant the Court exercising its jurisdiction”, being a connection that is material to the question of costs (citing Lander J in Vestris v Cashman (1998) 72 SASR 449 at 467).

19    In Roberts-Smith v Fairfax Media Publications Pty Ltd (No 43) [2023] FCA 886, Besanko J dismissed an application for orders setting aside subpoenas issued for the purpose of obtaining information relevant to a non-party costs application that had been filed after delivery of judgment on the primary claims. His Honour said (at [21]) that the statement of the Full Court in Dunghutti requiring a “sufficient connection” was to be understood as encompassing, at a high level of abstraction, the principles set out in authorities considered by the Full Court earlier in its reasons. Those authorities, his Honour said, “articulate the relevant principles and the reference to a sufficient connection invites attention to the principles which inform what is sufficient”.

20    On appeal, the Full Court concluded that there was no error in his Honour’s statement of principle:  Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185 (Wheelahan, Anderson and Jackman JJ). Nor was there error in the application of principle in the assessment of the validity of the subpoenas. On that topic, Besanko J had concluded that the documents sought on the subpoenas “could possibly throw light on the issues” which arise, a phrase used by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 88 ALR 90. The Full Court said (at [35]):

We reject the submission that the primary judge applied an incorrect principle to the assessment of the validity of the subpoenas. The use of the words ‘could possibly throw light on the issues which arise’ cannot be taken literally or in isolation. The use by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) of the word ‘possibly’ in that phrase was not used in any speculative sense but is to be understood as conveying the notion that documents sought could reasonably be expected to throw light on some of the issues in the proceedings:  Re Force Corp Pty Ltd (Receivers and Managers appointed) (in liq) [2018] NSWSC 896 at [24] (Gleeson JA); Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [48] (Bell P). That meaning is reinforced at [44] of the primary judge’s reasoning by his Honour’s statement that it was ‘on the cards’ that the documents will throw light on the issues which arise. That colloquialism refers to the existence of a realistic and genuine prospect, as the Seven Parties submitted (T3.15-16; T15.22-23).

21    The Full Court went on to say that the fundamental principle emerging from the authorities is that the party issuing a subpoena must demonstrate that a subpoena has a legitimate forensic purpose, and that it may be set aside if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the case. That statement is to be understood in a context where the respondent on the appeal had filed an application for costs against a non-party, the issue being whether the subpoenas served a legitimate forensic purpose in connection with that particular application. The Full Court (at [38]) otherwise approved the following propositions, drawn from the judgment of the NSW Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145:

(a)    the language of ‘tests’ should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose:  Bell P at [60]-[61], with whom McCallum JA agreed at [98];

(b)    it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena:  Bell P at [57]-[58], Brereton JA at [86] and [96], McCallum JA at [98] and [100];

(c)    it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive:  Bell P at [57], McCallum JA at [98] and [100];

(d)    put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case:  Brereton JA at [89], with whom McCallum JA agreed at [100]; and

(e)    it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist:  Bell P at [65], with whom McCallum JA agreed at [98].

...

The first argument

22    The addressees’ first argument is to the effect that Santos has wrongly deployed the subpoena process to inform its decision as to whether to make an application at all, not to shed light on any issue that arises on any costs application presently on foot. At the time of written submissions, the addressees had not been informed of Santos’ decision to file a non-party costs application against the EDO. I will defer my consideration of the forensic purpose of the subpoenas in connection with that application until later in these reasons. The present focus is on whether the subpoenas are an abuse of process in the absence of an extant costs application against any one of the addressees.

23    The addressees are correct to identify that Santos requested the issue of the subpoenas in part to assist it to decide whether there exist grounds for a non-party costs order against any one of them. To that extent, the purpose aligns with the purpose for which a prospective applicant may bring an application for pre-action discovery under r 7.23 of the Federal Court Rules 2011 (Cth) in advance of commencing proceedings for substantive relief. However, it does not follow that the disclosure of that purpose and the existence of the pre-action discovery procedure should compel a finding that the subpoenas served on the addressees are an abuse of process.

24    Rule 7.23 is as follows:

7.23    Discovery from prospective respondent

(1)    A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

(a)    reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

(b)    after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

(c)    reasonably believes that:

(i)    the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

(ii)    inspection of the documents by the prospective applicant would assist in making the decision.

(2)    If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

25    The addressees acknowledged that that rule is not intended to deal with prospective interlocutory applications made within an extant proceeding earlier commenced by an originating application. They appropriately acknowledged that their argument should turn on questions of substance rather than form. They could not point to any alternative source of power that might compel a non-party to disclose documents that may legitimately inform a decision by a successful party to make an application against a non-party in pursuit of a legitimate interest in being compensated for costs.

26    Further by way of context, it may be observed that in most cases costs are an issue that can arise at any time in an existing proceeding, whether they are sought on an originating application or not, and whether or not the issue is otherwise expressly foreshadowed by any party before final judgment. Whether an application for costs should be made against a non-party is a question that, by its very nature, may not expressly arise until judgment is given on the primary claims. It is neither necessary nor appropriate to make an application for costs in a separate proceeding. That accords with the addressees’ acknowledgment that r 7.23 cannot be invoked by a successful party in circumstances such as the present.

27    The power to issue a subpoena relating to questions of costs is to be interpreted in that broader context. In this action the issues that inform the question of whether an order for costs should be made (and if so against whom) did not arise for consideration by the parties themselves until the outcome of the primary action was known. The question now arises because Santos must decide within a fixed deadline whether to make an application for costs against persons other than or in addition to the applicants.

28    In accordance with the authorities discussed above, to ask whether there is a legitimate forensic purpose for a subpoena is to ask whether the documents sought could reasonably be expected to throw light on some of the “issues in the proceedings”. In each of the authorities to which I was referred, the subpoena was issued in the context of there being an application already on foot, such that the “issues in the proceedings” were those legitimately defined by that application. But the cases do not preclude the use of a subpoena for the purpose disclosed by Santos in an equivalent context to the present. They simply do not consider the question.

29    The expression “legitimate forensic purpose” is to be understood as a threshold found to be useful in a context where there is an application of some kind on foot. The legitimacy of the purpose may be understood as one that trains focus on the facts and circumstances that may properly bear on the relief sought in the particular case. But the phrase “legitimate forensic purpose” is not a substitute for the text of r 24.12 which confers power on the Court to issue a subpoena (relevantly defined in r 24.11 as an order in writing requiring the addressee to produce a document or thing). Rule 24.12 relevantly provides:

(1)    The Court may, in any proceeding, by subpoena, order the addressee:

(a)    …

(b)    to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or

(c)    …

30    Properly construed, that rule encompasses the power to issue a subpoena for the purpose of assisting a successful party to make a decision as to whether to make an application for costs against a non-party in an appropriate case. Without promulgating a definitive test, an appropriate case may be one in which there is some basis beyond mere speculation for believing that the documents sought on the subpoena will assist in the making of that decision, and where there is some basis (again beyond mere speculation) for believing that documents legitimately informing that decision are in the possession of the addressee. In reaching that conclusion I have taken into account the following additional considerations.

31    First, the rule itself contains no express conditions on its exercise. There is no obvious policy consideration precluding the exercise of the power for the purpose I have described. Like any discretionary power, it is not to be exercised arbitrarily or capriciously, such that there must be a reasonable factual and legal basis for it.

32    Secondly, the rule forms a part of the Court’s practice and procedure provisions and must therefore be interpreted and exercised in a way that best promotes the overarching purpose described in s 37M of the FCA Act. I do not consider those objectives to be best advanced by construing the power narrowly so as to preclude in all cases the issue of a subpoena for a purpose that resembles the purpose for which a pre-action discovery application may be made.

33    Thirdly, the rule as to pre-action discovery itself recognises that persons who are not yet parties to an extant proceeding may be subject to compulsive processes invoked for the purpose of ascertaining whether they could or should be. The prospect of compulsory processes interfering with the rights of non-parties is not foreign in the administration of justice in this or other courts. The nature and extent of interference with the rights of the non-party will nonetheless be relevant in the exercise of the discretion.

34    Fourthly, whether processes inter partes should first be exhausted before the Court’s processes are directed to non-parties will be relevant in the exercise of the discretionary powers, but exhaustion of those avenues is not a legal precondition to the issue of a subpoena. In the unique circumstances of the present case, I consider the exhaustion of avenues against the applicants themselves to be neither necessary nor appropriate, including because they are not likely to have in their own possession communications passing between the EDO and the addressees which may be relevant to some issues. In accordance with s 37M of the FCA Act I do not consider any further delay attending the pursuance of that avenue to be warranted in any event.

35    Fifthly, it is not difficult to imagine cases in which it may be in the interests of justice for a successful party to obtain by compulsive processes information that is in the possession of non-parties and that may legitimately inform a decision as to whether to seek any form of costs order under s 43 of the FCA Act. That is a further reason to construe the rules in relation to subpoenas widely so as not to preclude the use of the powers in appropriate cases where the interests of justice may require it. The interests of justice may be more obvious in cases where a successful litigant has incurred very considerable costs defeating the claim of an impecunious applicant and where there is some basis beyond speculation for believing that another person may have facilitated the litigation for his or her own benefit.

36    I accept the addressees’ submission that a subpoena should not be issued in circumstances where there is no realistic possibility of the addressee possessing any document that might bear on the question of whether a costs application should be made against the addressee or another person. That is why I have construed the rule as permitting the issue of a subpoena in appropriate cases of the kind I have described.

37    To summarise, a request for the issue of a subpoena under r 24.12 of the Rules may constitute an abuse of process if the request is made for a purpose that is foreign to the purpose for which the power is conferred. Here, there is alignment in those purposes and hence no abuse for the reason advanced in the addressees’ first argument. A subpoena will not constitute an abuse of process if it is genuinely and legitimately directed to identifying non-parties against whom an application under s 43 of the FCA Act may be made. The expression “forensic purpose” in that context is useful in drawing attention to the limits of the power to make a costs order against a non-party, such that it will be an abuse of process to request the issue of a subpoena to obtain information that could not conceivably bear on the exercise of the costs power. In my view, it will be sufficient for the issuing party to demonstrate at a threshold level that there is a reasonable basis for supposing that the addressee is in possession of documents that may legitimately inform its decision as to whether to bring a costs application against a non-party. On the material before me, that requirement is satisfied in relation to three of the four addresses, as I will now explain.

The second argument

38    The addressees repeatedly emphasised that there are no documents returnable within Category 1; that is, they do not have in their possession any documents recording any payment or indemnity to the applicants or the EDO, or any underlying “agreement of the same” in connection with the proceeding. Their primary submission was that in the absence of any payment, indemnity or agreement described in Category 1, there could be no proper basis to conclude that they may have in their possession any other document that could conceivably support a non-party costs order against them.

39    Their alternative argument is that any category going wider than their proposed revised categories could not properly be targeted to a legitimate purpose, because a nil return in relation to those categories must compel a finding that none of the “indicia” for a non-party costs order are present. The proposed revision is as follows:

Proposed Amended Category 2

Documents evidencing or recording instructions or advice given to the EDO or the Applicants in respect of the conduct of the Proceedings (including prior to commencement of the Proceeding).

Proposed Category 3

Documents recording or evidencing:

a.    any costs, compensation or other financial benefit paid or agreed to be paid to [Subpoena Recipient] based on the outcome of or any milestones achieved in the Proceedings; or

b.    any other benefit to be received or agreed to be received by [Subpoena Recipient] based on the outcome of or any milestones achieved in the Proceedings.

Proposed Category 4

All documents recording or evidencing communications with the EDO or the Applicants for the purposes of:

a.    funding the Proceeding (including prior to the commencement of the Proceeding); and

b.    controlling or directing the conduct of the Proceeding (including prior to the commencement of the Proceeding).

Proposed Category 5

All documents recording or evidencing any financial benefit arising for [Subpoena Recipient] in relation to the Proceedings.

40    At times the submissions described the “indicia” for a non-party costs order as resembling something of a checklist of factors found to be present in cases where cost applications against non-parties have previously succeeded. It may be accepted that in cases where those facts are shown to be present, they may weigh in favour of an order, and that their absence may also be relevant. However, as the Full Court emphasised in Court House Capital Pty Ltd v RP Data Pty Ltd [2023] FCAFC 192 (at [11]), there is no rigid checklist of factors that may be considered. The Full Court continued (at [11]):

…  This is particularly so given that the determination of the nature and extent of the relevant connection will be informed by the character of the non-party. For example, whether the non-party is a receiver (see Knight at 192–3), a family member of a party (see Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [22]–[23]; KSMC Holdings Pty Ltd v Bowden (No 3) [2020] NSWCA 158 at [45], [50]), a union (see, eg, Traynor v Cunningham [2017] WASCA 125 at [39]–[45]; see, eg, in the context of the tort of maintenance, Hill v Archbold [1968] 1 QB 686 at 695) or a commercial litigation funder (see Gore v Justice Corporation Pty Ltd [2002] FCAFC 354; 119 FCR 429 at [64]), the authorities reveal that different considerations arise in each case.

41    The Full Court found no error in the statements of principle of the primary judge (Thawley J) in Hardingham v RP Data Pty Limited (Third Party Costs) [2023] FCA 480. There his Honour (at [21]) disapproved a proposition that an order for costs will only be made in exceptional circumstances or that such orders are “rare”. Statements of that kind appearing in the authorities were a reflection of the reality that cost consequences usually fall on the parties to the litigation and should be understood as an observation that in the ordinary run of cases parties pursue and defend claims for their own benefit and at their own expense. Thawley J (in Hardingham, at [21]) said that it was therefore unhelpful to state that such orders were rare, and that:

…  When there is a sufficient connection between the litigation and a third party, and the circumstances are such that the making of a costs order is fair in all the circumstances, the making of a third party costs order is normal.  …

42    Court House Capital itself concerned the increasingly common scenario of a litigation funder who facilitated litigation for commercial gain. I accept that is not an apparent feature of this case, given the nil return in Category 1.

43    The present context has the following (actual or apparent) features.

44    Argument proceeded on the basis that none of the applicants had the means to satisfy the costs order. The first applicant obtained the injunction upon informing the Court that he did not have the financial means to give an undertaking as to damages. The applicants nonetheless prosecuted their claim with the assistance of a large team of lawyers, both solicitors and barristers, with up to six lawyers appearing at the bar table for the applicants at various times.

45    Material before the Court shows that the EDO has paid disbursements in the proceeding being payments to third parties that would in the ordinary course be paid by the applicants as their clients. Those disbursements are substantial, totalling nearly $150,000.00. At hearings late last year, Counsel for the applicants informed the Court that the applicants were not liable to meet the accommodation costs of their legal team. The nil return in Category 1 on the subpoenas presently under consideration could support a finding that the addressees have not made direct payments to the EDO or the applicants with respect to costs of the kind paid by the EDO, nor have they indemnified the EDO or the applicants in connection with any liability to pay them.

46    Category 1 is limited in its terms to payments or indemnities made to the EDO or made to the applicants. It does not cover payments made to third parties in meeting expenses associated with the litigation. Accordingly, a nil return in Category 1 does not conclusively answer the question of whether there has been facilitation of the litigation of a financial kind, nor of a non-financial kind.

47    A “benefit” that may be achieved by a non-party in facilitating litigation (again in the relevant sense) need not be in the form of a financial return, but may conceivably take the form of the achievement of a political or ideological objective shared by the non-party. I say “conceivably” to emphasise that the Court is not presently concerned with the substantive merits of any costs application and to reinforce that on such an application it will be relevant to consider the character of the non-party in the sense described in the passage from Court House Capital extracted above. Here, the addressees may fairly be described as activist organisations, existing solely to achieve environmental outcomes, not to derive profits. It is at least arguable that a non-party’s support of litigation to pursue a political or ideological objective of the non-party’s own could, in an appropriate case, weigh in favour of a costs order. That is particularly so when a reason for the non-party’s existence is to achieve one or more of the outcomes sought in the proceeding.

48    It is for that reason that I reject the addressees’ submissions that a nil return on their proposed revised categories must necessarily mean that there could be no reasonable basis to pursue them for costs. The revised categories place too much emphasis on the existence of commercial factors, as though financial “indicia” of that kind were a necessary element to be proven in all cases.

49    It may readily be inferred that the addressees each have in their possession documents that evidence communications between them and the EDO or the applicants in relation to the proceeding. Indeed, Counsel for the addressees told the Court that the addressees would seek an opportunity to be heard on suppression or confidentiality orders in connection to the communications should their present application be unsuccessful and the subpoenaed material be adduced in evidence. None of the addressees have submitted that the search for the documents would be fruitless, unduly burdensome or otherwise oppressive.

50    In light of the evidentiary material discussed below, the likely existence of the communications invites a legitimate enquiry about their content, having a starting point beyond mere speculation in respect of three addressees. I emphasise that the communications may or may not evidence the existence of a relationship with the applicants and the litigation sufficient to support an argument that a costs order against those addressees could be made or that such an application would necessarily succeed. But in accordance with the principles summarised in Seven Network, it is not necessary for Santos to establish either of those things. Once it is accepted that a legitimate purpose of the subpoenas is to inform the decision as to whether or not to make a costs application against one or more of the addressees, it cannot assist the addressees to assert that Santos does not presently have sufficient evidence to support a successful costs application against any one of them. In the present context, the test is whether it is on the cards (a threshold discussed in the authorities) that the communications might shed light on the question of whether the addressees are sufficiently connected with the applicants and the litigation so as to inform a decision as to whether to make a costs application and to inform the outcome should the application be made. The circumstance that there are no documents to produce in Category 1 does not conclusively answer either question.

51    Before concluding on this topic, I identify three further reasons for rejecting the alternative categories proposed by the addressees.

52    First, I consider that the descriptions focus too heavily on a document by document appraisal, ignoring the inferences that might be drawn from all communications considered as a whole.

53    Second, the heavy focus on financial support or financial benefits involves a too limited conception of the facts and circumstances that might support a finding that there exists a sufficient connection with the litigation to warrant an order for non-party costs. The absence of a financial benefit would not be surprising in a case in which no monetary remedy is sought in the action. The present context is one in which the addressees themselves do not exist for profit making purposes. Rather, they exist to achieve environmental outcomes that align with their values. A campaign in which they appear to be involved has the sole objective of stopping the Barossa Project. Proof of the absence of a financial benefit is not necessarily appropriate in that factual context.

54    Third, the reference in proposed Category 3(b) to “any other benefit” involves too much subjective analysis on the part of the proper officer for discerning whether a particular document is captured by the subpoena and again ignores the fact that inferences may be drawn from documents considered together.

55    Fourth, whilst the presently worded Category 2 may well capture documents that are not informative in discerning the existence and nature of the relationship between relevant entities, it is not at all unusual for a subpoena to operate in a way that compels the production of a document that will be of little or no assistance. The prospect that irrelevant documents might be captured, may of course be taken into account in the exercise of the Court’s discretion to narrow or set aside a subpoena. However, in the present case, the attempt to narrow the category involves an attempt to limit the kinds of facts and circumstances that might evidence a sufficient connection with the litigation. The invasion of the addressees’ rights is to be weighed against the appropriateness of a more widely cast description that places less reliance on the subjective evaluation of the proper officer as to whether a document is captured or not.

56    Fifth, I consider that subpoenas for documents in Category 2 are adequately supported by the unique circumstances of this case discussed above, as well as the additional evidence discussed below in connection with all of the addressees other than Market Forces.

Evidence

57    Santos supports its position with evidence of publicly available material derived from websites and social media platforms. I emphasise again that Santos does not submit that the material provides a sufficient evidentiary basis to warrant a non-party costs order against the addressees. Rather, it submits that the material provides support for a finding that the issuing of a subpoena including Category 2 is warranted. It is not the Court’s task to assess the evidence as though it has before it an application to summarily dismiss a non-party costs application against each addressee based only on the presently available material.

58    I will deal first with the subpoenas addressed to Jubilee, Sunrise Project and Environment Centre.

59    The material refers not only to this proceeding but to earlier proceedings in Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121; 406 ALR 41 and Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124 (Tipakalippa proceedings). At first instance, the Tipakalippa proceedings involved a successful application by a Tiwi Islander for judicial review of a decision relating to drilling activities within the Barossa Project. As in the present case, the applicant’s claim was framed as one advancing the interests of a wider group of Tiwi Islanders being members of clan groups affected by the Barossa Project. As the addressees correctly submitted, those proceedings are distinct from the action brought by the applicants in this case. However, the litigation involved the same competing interests; those of the applicants in protecting (among other things) their cultural heritage as Tiwi people, and the interests of Santos in progressing the Barossa Project.

60    The website stopbarossagas.org shows that there exists a public campaign titled “Stop Barossa Gas” having the sole purpose of stopping or frustrating the Barossa Project. The nature and purpose of the campaign is evident from the website and also from material published by the addressees. The campaign website describes Stop Barossa Gas as an “international alliance” and “collaboration” of organisations including two addressees, Jubilee and the Environment Centre. Publications concerning the campaign include multiple references to First Nations people of the Tiwi Islands, including participants in this proceeding.

61    In its annual report for the 2022 financial year, Jubilee said this of the Tipakalippa proceedings:

The Stop Barossa Gas campaign, which we co-founded, won a crucial Federal Court ruling against Australian gas company Santos in favour of Tiwi Island Traditional Owners; …

62    That statement may reasonably be interpreted as equating the participants in the Stop Barossa Gas campaign with the position of the successful applicant in the Tipakalippa proceedings. It tends to suggests that Jubilee, as a co-founder of Stop Barossa Gas, considered itself to be a successful litigant. The statement is reasonably capable of suggesting that the participants in Stop Barossa Gas had done something to bring about the successful result. At the very least it is suggestive of some form of relationship between Jubilee and the applicant in the Tipakalippa proceedings involving some form of material facilitation. These are tentative observations only. No substantive finding is necessary.

63    A similar statement appeared in a version of the 2022 annual report of Sunrise Project. As at January 2024, that report contained the following statement:

Working with our network of partners, we have:

– Won a legal challenge by Tiwi Islands Traditional Owners that resulted in cancellation of the proposed AUD $5.5 billion offshore Barossa Gas Project. The win withstood appeal by Santos, a world top 20 oil and gas company, leaving drilling rigs idle since September 2022 and the project facing delays of up to 18 months.

64    That statement was removed from the annual report on 21 February 2024, after Sunrise Project was served with the subject subpoena. A solicitor for Sunrise Project gave affidavit evidence of her instructions explaining why that change occurred. She said that an employee responsible for the preparation of the annual report was on leave when it was prepared, and that she removed the statement upon forming the view that (among other things) it inaccurately gave the impression that Sunrise Project was a party to the Tipakalippa proceedings or that it had represented the applicants in those proceedings.

65    The inaccuracy is plain enough. But it remains that other personnel within Sunrise Project were content to publish the 2022 annual report to the world at large in a form containing the statement. Again assessed at a preliminary level, the statement is reasonably capable of supporting an inference that there existed a relationship between Sunrise Project and its “network partners” involving support for proceedings of some kind that caused Sunrise Project to claim credit for the win as if it were its own.

66    It was submitted that the above statement related to different proceedings and so could not, on any view, be relevant in assessing the relationship between the addressees and the applicants in this proceeding.

67    As with the statement in the Jubilee annual report, the potential relevance of the statements is to be considered in light of the evidence as a whole, including evidence suggesting that the Stop Barossa Gas campaign was ongoing in the period of the litigation in this action and that it existed to stop the Barossa Project entirely. The statement suggests that there existed a cooperative effort of some kind that brought about the outcome in the earlier proceedings, celebrated because it stalled the Barossa Project and so aligned with the values of Jubilee, Sunrise Project and the campaign more generally. Standing alone the statements do not support a finding that there existed a relationship in the earlier proceedings that might have been sufficient to support a non-party costs order in those proceedings. But they are sufficient to support a conclusion that the issuing of the subpoenas in the present case is not based on mere speculation. It is enough that they raise questions as to whether the facilitation of litigation in one form or another is an activity engaged in by Jubilee and Sunrise Project in their pursuit of the singular objective of the Stop Barossa Gas campaign.

68    The participants in the Stop Barossa Gas campaign include the Environment Centre. In its annual report of 2022 – 2023 it too made statements suggesting that it had some involvement in the outcome of the Tipakalippa proceedings. The report says this of the Stop Barossa Gas campaign:

The past year has been one of profound significance in the campaign against Santos’ Barossa gas project, located north of the Tiwi Islands.

Working alongside Tiwi people and a coalition of organisations across Australia and the world, the Barossa project has been stalled for over twelve months thanks to one of the most successful campaigns in the country.

69    Given what follows, the “stalling” there referred to may be understood as delay resulting from the relief granted in the Tipakalippa proceedings. The report goes on to state:

There are so many different components of this complex project, and ECNT is leading the charge. As a result of community pressure, the NT EPA demanded that Santos produce a full emissions profile of the entire Barossa gas project, ensuring the emissions profile is subject to the scrutiny of both the public and the environmental regulator. Santos have not secured a single approval for their dirty gas project in over 12 months, and the public is more engaged than ever in scrutinising their plans. The false promise of carbon capture and storage (CCS) has been scrutinized by ECNT. We have led national civil society advocacy on the government’s amendments to the Sea Dumping bill that would allow for a pernicious form of carbon colonialism:  gas companies’ plans to dump CO2 into Timor Leste’s waters.

Whether it is meeting with overseas financial institutions, mobilising the community to write submissions to the regulator, organising solidarity demonstrations outside the Federal Court or dancing on the lawns of the Botanic Gardens with Tiwi Elders, ECNT’s work on the Barossa project has taken us places that were unimaginable at the beginning of the campaign. As we write this, Santos’ contracted drilling rig sits idly in the Timor Sea and is prevented from destroying the Sea Country that Tiwi people have so courageously fought to defend.

70    Earlier in the report, the Executive Director of the Environment Centre reported that it was difficult to distil all of its achievements in that year into a few lines, and said that:

… we are particularly proud of how:

•    we helped Tiwi people defeat gas giant Santos not once, but twice in the Federal Court, sending shockwaves throughout the industry not just in Australia, but across the world. Some twelve months after this victory, the Barossa gas project is still stalled. Our work must continue to stop Australia’s dirtiest gas project.

71    As in the examples above, that statement may be understood as referring to the Tipakalippa proceedings. As such, the “help” referred to may be understood as referring to some form of assistance given to Tiwi people that contributed in some material way to their success in that litigation, both at first instance and on appeal. The statement relates to earlier proceedings, however it also discloses an intention to continue the same work. Questions arise as to what “help” was provided and whether “help” of that kind extended to this proceeding directed to the same outcome of defeating or stalling the Barossa Project. In light of that material, the possibility of there being a relevant connection in the present case is not a matter of baseless speculation. Documents in Category 2 may reasonably be expected to shed some light on the existence and nature of any such connection and so shed light on the question of whether there are grounds for a non-party costs order against Environment Centre. They may well show that there is no relevant connection. But that does not justify the setting aside of Category 2.

72    The social media pages of the addressees are also in evidence. In many instances those pages evidence the addressees engaging in activities to stop the Barossa Project that are unrelated to the litigation in the present case. Those kinds of publications are insufficient to support the subpoenas in and of themselves, but nor do they rebut the inferences that may be drawn from the content of the annual reports to which I have referred. That is especially so because the publicly available statements are not an exhaustive collation of evidence that may inform the existence of a relationship of a kind that may reasonably support a non-party costs application.

73    Other posts on the social media pages contain expressions of moral solidarity with the applicants in connection with this proceeding, urging members of the public to express their own support by signing a petition or physically attending the trial of the action. In my view, the mere expression of moral support for a litigant would be insufficient to support a costs order against the person providing encouragement of that kind. Absent the self-laudatory statements in the annual reports, I would have concluded that there was insufficient material to justify the maintenance of Category 2 in the subpoenas issued to Jubilee, Sunrise Project and Environment Centre. It would not be enough to show merely that an addressee expressed views against the Barossa Project and published expressions of moral support for litigants who had brought proceedings to stop the pipeline. Nor would it be sufficient to show that a person has vehemently criticised the Barossa Project in public discourse, as each addressee is perfectly entitled to do. Those observations explain why I have formed a different conclusion in relation to the subpoena served on Market Forces.

74    Unlike the other addressees, there is nothing to suggest that Market Forces has equated any success or milestone in any litigation related to the Barossa Project as a success of its own. In one post, Market Forces credits the applicant’s success in the Tipakalippa proceedings in part to the EDO and Environment Centre.

75    Some publications on Market Forces’ social media platforms are in the form of reportage of these proceedings and include expressions of moral support for the applicants. They are heavily focussed on applying pressure on the financiers of the Barossa Project to withdraw their finance. The social media pages show that Market Forces has worked with Tiwi Islanders in meeting that discrete objective, but unlike the evidence contained in the annual reports discussed above, there are no indications that it has “helped” in litigation or “won” a legal proceeding, whether alone or in conjunction with others.

76    In the circumstances described I do not consider there to be a sufficient basis to warrant the issue of the subpoena containing Category 2 against Market Forces. At a threshold level a question does not arise as to whether it has a connection with the EDO, the applicants and the litigation of a kind that would warrant a non-party costs order against it. It is not enough to show that Market Forces is a fierce critic of the Barossa Project nor that it has publicly encouraged the applicants to pursue their claims for relief in the proceeding.

The application against the EDO

77    Santos submitted that the evidentiary material may also shed light on the issues that arise on the application that it has now filed against the EDO. That argument was not addressed in its written submissions. Nor did Counsel for Santos elaborate on the argument in oral submissions in sufficient detail to enable it to be properly assessed and resolved. Given the short notice provided to the addressees about the making of the application against the EDO, it would be neither fair nor appropriate for the Court to identify for itself how the evidence relating to the addressees could inform the question of whether Category 2 could shed light on the issues that may arise on that application.

Conclusion

78    There will be an order varying the subpoena addressed to Market Forces so as to delete Category 2 from the schedule of documents to be produced.

79    There will be additional orders dismissing the applications of Jubilee, Sunrise Project and Environment Centre.

80    I will hear from Santos and the addressees as to costs.

Associate:

Dated:    24 April 2024