Federal Court of Australia

Munkara v Santos NA Barossa Pty Ltd (No 5) [2024] FCA 717

ORDERS

THE COURT ORDERS THAT:

1.    The respondent has leave to amend the interlocutory application dated 22 April 2024 (application) so as to substitute category 22 in Annexure A with the words reproduced at [11] of the affidavit of Michelle Fox affirmed on 14 May 2024.

2.    Subject to paragraph 5, the respondent has leave to issue a subpoena to the Environmental Defenders Office Ltd in the form of Annexure A to the application.

3.    Subject to paragraph 5, the respondent has leave to issue a subpoena to Dr Michael O’Leary in the form of Annexure B to the application.

4.    Subject to paragraph 5, the respondent has leave to issue a subpoena to Mr Gareth Lewis in the form of Annexure C to the application.

5.    The leave in paragraphs 2 to 4 is subject to the following:

(a)    the proposed subpoena in Annexure A is to be varied as follows:

(i)    delete categories 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17 and 25;

(ii)    add to category 13 the words “in connection with”, followed by the same subject matters listed at (a) to (l) of category 21, and the concluding words “up to and including 22 December 2023”;

(iii)    add to category 21 the words “between and including 15 September 2022 and 22 December 2023”;

(iv)    delete from category 22 (as amended) the words “Market Forces Limited” and substitute the words “after November 2022” with the words “between and including 1 December 2022 and 22 December 2023”;

(v)    add to categories 18, 19, 20, 23 and 24 the concluding words “up to and including 22 December 2023”.

(b)    the proposed subpoena in Annexure B is to be varied as follows:

(i)    delete categories 2, 3, 4 and 5;

(ii)    add to categories 9, 10 and 11 the words “between and including 15 September 2022 and 22 December 2023”;

(iii)    add to categories 5, 6, 7 and 8 the concluding words “up to and including 22 December 2023”.

(c)    the proposed subpoena in Annexure C is to be varied as follows:

(i)    delete categories 2, 3 and 4;

(ii)    add to categories 8 and 9 the words “between and including 15 September 2022 and 22 December 2023”;

(iii)    add to categories 5, 6 and 7 the concluding words “up to and including 22 December 2023”.

(d)    each subpoena is to specify a date for service not later than 11 July 2024; and

(e)    each subpoena is to specify a return date not later than 22 August 2024.

6.    Any claim of legal professional privilege in any material contained in any documents described in the subpoenas referred to in paragraphs 2 to 4 is to be made in the following manner:

(a)    the documents subject to the claim are to be described in a numbered list containing the following details:

(i)    the date of the communication;

(ii)    the purpose(s) of the communication;

(iii)    all parties to the communication; and

(iv)    if the communication has since been disclosed to any person (other than the original parties to the communication), the identity of the person and the purpose of the disclosure;

(b)    the list in paragraph 6(a) is to be annexed to an affidavit deposing to its truth;

(c)    the affidavit referred to in paragraph 6(b) is to be returned together with any documents in response to the subpoena;

(d)    if the privilege claim relates to part of a document, the part that is subject to the claim is to be redacted and the redacted version is to be produced in response to the subpoena;

(e)    until further order the documents subject to any claim (whether in whole or in part) are otherwise to be placed in an envelope and maintained in the possession of the addressee or the addressee’s legal representative.

7.    The parties and the addressees have liberty to apply to vary the order in paragraph 6, such liberty to be exercised on or before 9 August 2024.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The respondent, Santos NA Barossa Pty Ltd ACN 109 974 932 has made an application for leave to issue subpoenas to three addressees, the Environmental Defenders Office Ltd (EDO Lawyers), Mr Gareth Lewis and Dr Mick O’Leary.

2    These reasons are to be read in conjunction with two other judgments previously published in this matter, namely:  Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9 (Munkara 3) and Munkara v Santos NA Barossa Pty Ltd (No 4) [2024] FCA 414 (Munkara 4). Some phrases employed in those judgments will be employed here without further introduction.

3    For the reasons given in Munkara 3, the applicants’ originating application was dismissed. The applicants have been ordered to pay Santos’ costs of and incidental to it. Santos does not seek to vary or revoke the costs order as against the applicants themselves.

4    On 22 April 2024, Santos filed a costs application against EDO Lawyers, the firm of solicitors that represented the applicants through to and for some time following the delivery of judgment in Munkara 3. The costs application was foreshadowed at a hearing on 5 April 2024.

5    Given the complex history to the proceeding, the Court invited submissions from the addressees as to whether leave should be granted, with a view to avoiding multiple motions for the subpoenas to be set aside.

6    Mr Lewis and Dr O’Leary are experts engaged by EDO Lawyers to prepare reports and give evidence in support of the applicants’ case. The categories of documents in the proposed subpoenas addressed to them overlap with the categories of documents in the proposed subpoena addressed to EDO Lawyers. They have each informed the Court that they do not seek to make submissions on the question of leave, but abide the outcome of the application as it relates to EDO Lawyers.

7    By way of further background, for reasons given in Munkara 4, on 24 April 2024 the Court granted leave to Santos to issue subpoenas against three activist organisations (Jubilee Australia Research Centre Ltd, Environment Centre (N.T.) Inc (ECNT) and The Sunrise Project Australia Limited) but refused to grant leave to issue a subpoena to a fourth organisation (Market Forces Ltd). Santos’ argument in support of that application was principally that the documents would (among other things) assist it to decide whether to bring additional costs applications against those entities. Also on 5 April 2024, Santos handed up a document titled “Respondent’s propositions about orders sought on 5 April 2024” (Proposition Statement) setting out the basis of the costs application it then foreshadowed it would make against EDO Lawyers. It contained the following:

…

3.    There are three limbs to the Respondent’s position against the EDO.

4.    The first is that the EDO funded at least parts of the applicants’ proceedings. Production of documents by the EDO to date has not been fulsome, for example the date range provided commences in October 2023 when it is clear work had been progressing for many months beforehand. Production has also been recent, the last tranche being on 28 March 2024. The respondent has not had time to fully consider all of the documents produced but it is obvious that production by the EDO needs to be supplemented. Leaving those issues aside, the respondent’s position is set out in the affidavit of Ms Fox which has been provided to the Court as explained above.

5.    The second is the role of the EDO in the conduct of the proceedings. As was ventilated in the respondent’s submissions at the hearing, the EDO was intimately involved with the discredited ‘cultural mapping’ which was the foundation of the applicants’ case, that the pipeline route would impact cultural features by damaging spiritual connection; i.e. intangible cultural heritage. As well as distorting indigenous instructions, e.g. [2024] FCA 9 at [1169], that process undermined lay evidence to the extent that it also could not be accepted by the Court. The EDO prepared the assumptions given to each of Mr Lewis and Drs O’Leary and Kearney about the cultural narratives that ought underpin their respective opinions; being the ‘Tiwi Cultural Stories Summary’. The EDO also provided the ‘Marie Munkara Sea Country Narratives’ to the experts – in relation to which the Court inferred that Ms Munkara had regard to Dr O’Leary’s maps when she prepared her narratives so as to match the narratives to the submerged landscape [[2024] FCA 9 at 1177]. In short, the EDO was an actor in the putting forward of both expert and lay evidence which could not be relied upon by the Court.

6.    Broadly speaking, the respondent’s position is that the EDO’s role in, at least, this regard was unreasonable and ought to attract costs consequences.

7.    It will be necessary for the respondent to seek additional production from the EDO and the applicants’ experts so as to fully ventilate the ambit of the EDO’s conduct. The respondent has provided the Court and the EDO with draft subpoenas to the EDO, Dr O’Leary and Mr Lewis that it seeks leave to issue. The relationship between the EDO and the experts, and between the experts, and the timing of their engagement with the Tiwi Islanders may be critical to the respondent’s arguments about the extent of the EDO’s agency in these proceedings. The respondent anticipates that those subpoenas will raise issues of privilege, and its waiver.

8.    The third plank to the respondent’s position is that the EDO had a substantial interest in the outcome of the proceedings as an activist organisation. As recorded at [1320] of the Judgment, Santos did not argue in the proceedings that the EDO was the principal proponent of the action pursuing an ideological agenda. For the purposes of costs, the respondent does put that the benefit to the EDO of the proceedings, should they have succeeded, would have been fundamentally different to the usual solicitor client relationship. The justice of the case in all its unique circumstances lies with the EDO bearing the burden of the loss; at least equally with its client. This argument will also be further developed after production.

9.    The respondent’s position with respect to each of the ECNT, Jubilee Australia, Market Forces and the Sunrise Project is that further production is required before it forms a view about whether it wishes to seek third party costs orders. As set out in the submissions prepared in relation to the application to set aside the subpoenas issued, the availability of such a claim is ‘on the cards’ on the current material but the respondent seeks additional information. Once that information is received, the respondent will expeditiously form a view about whether to file an application. This is provided for in the respondent’s draft orders.

8    Following judgment in Munkara 4, each of Jubilee Australia, ECNT and Sunrise Project sought leave to appeal from the judgment. On the day of argument on the present application, Santos informed the Court that it “does not press” the subpoenas addressed to those entities. In light of that withdrawal, the Court granted those organisations a limited audience in respect of one category of documents now sought by the proposed subpoena addressed to EDO Lawyers.

Evidence and submissions

9    Santos relies on evidence contained in a Court Book dated 12 June 2024. It submits that the evidence provides a reasonable basis for the issue of subpoenas for documents that may further illuminate the relationship between EDO Lawyers and the litigation. Its position on the costs application is (at least) that EDO Lawyers is an environmental activist organisation in its own right and that the applicants’ claim in this proceeding formed a part of its own strategy to stop the construction of the pipeline and the Barossa Project more generally. It submits that the evidence presently in its possession shows that:

(1)    EDO Lawyers partially funded the applicants’ case;

(2)    EDO Lawyers engages in environmental activism with the express object of stopping the Barossa Project forming the subject of the proceeding, evidenced in part by its participation in a campaign with other activist organisations titled “Stop Barossa Gas”;

(3)    EDO Lawyers engaged in crowdfunding activities to meet the expenses of litigation directed to stopping the Barossa Project;

(4)    EDO Lawyers had dealings with the authors of the Knowing Sea Country Report having the consequences described in Munkara 3 (at [119], [896] and [1089]); and

(5)    EDO Lawyers was responsible for commissioning and putting before the Court expert reports that were rejected by the Court as unsound, including because of issues affecting the experts’ professional independence.

10    Santos relies upon passages of the reasons in Munkara 3, conveniently summarised (without challenge) in its written submissions as follows (at [3.3]):

(a)    The finding of partial confection or construction of the applicants’ case with respect to the intangibles case at J[1025] to [1028] … and the analysis that follows which identifies the cultural mapping process as lacking integrity and unable to be relied upon by the Court.

(b)    The findings about the critical May Lewis Meeting and the June O’Leary Workshops, conducted with the EDO, and the witness coaching that occurred there (e.g. J[994], [1117] to [1135] and [1143] to [1170]).

(c)    The findings about how the cultural mapping exercise also undermined the evidence of the Tiwi islanders who participated in it (J[1027]).

(d)    The findings that the ‘independent experts’ put forward by the EDO for the applicants were not, they were partisan (e.g. J[1139]).

(e)    The findings about the role of the EDO lawyer at the May Lewis Meeting and the June O’Leary Workshop, including the following at J [1168] to [1170]:

Most concerningly, I consider that Video 39 depicts what could only be described as the EDO lawyer drawing on the map in a way that could not on any reasonable view truthfully reflect what the Tiwi informant had said. In addition, the EDO lawyer stated, ‘that’s where the sea starts’. That is a curious statement, given that the map is intended to reflect a territorial landscape within which there was a freshwater lake. At the time that the sea ‘started there’ it could not be a freshwater source. The informant said ‘into the sea’ which could only be understood as something going into the sea from the island coast. The EDO lawyer created her own marking on the map and then reinforced it, ending the line in what is then referred to in a document drafted by the EDO as the ‘sacred freshwater source’. That line now appears in the so-called cultural map and is presented to this Court as evidence in Dr O’Leary’s Figure 7A (Map 4) above.

The material supports an inference that Indigenous instructions have been distorted and manipulated before being presented to this Court via an expert report, and I so find.

The EDO lawyer was not called to give evidence. That does not preclude the Court from acting on the evidence before it, given that the applicants’ onus includes an onus to persuade the Court that the cultural mapping exercise is scientifically sound and otherwise reliable. The content of Video 39 alone is sufficient to reduce the integrity and hence the reliability of the cultural mapping exercise to nought.

(f)    The findings that expert reports could not be relied on because of the process involving coaching (e.g. J[994]).

(g)    The finding that her Honour’s conclusions about the conduct of the EDO lawyer who attended the June O’Leary Workshop caused her Honour to approach the EDO Synthesized Narratives (given as an assumption to all experts) with extreme caution (J[1179]).

(h)    Her Honour’s ultimate finding that the flaws in the cultural mapping exercise were so flawed that they contaminated the EDO Synthesized Narrative document and rendered it forensically useless (J[1181]).

(i)    The finding that the 2023 Marie Munkara Narratives are capable of supporting an inference that Marie Munkara was acutely aware of the objective of stopping the pipeline and, in addition, that she had had regard to the maps created by Dr O’Leary at the time that she prepared her narratives so as to match the narratives to the submerged landscape (J[1177]).

11    At trial, Santos’ closing submissions went so far as to allege that material culminating in certain expert reports had been “confected” and otherwise attacked the methodology and independence of the experts. The Court accepted the submissions concerning the alleged “confection” only to the extent articulated in the reasons for judgment:  Munkara 3, at [1027]. The findings went no further than necessary for the resolution of the controversy. The Court did not conduct a general enquiry into broader matters concerning the conduct of EDO Lawyers of a kind that may be relevant to an application for non-party costs. The findings in Munkara 3 could not be understood as adverse to EDO Lawyers in any broader sense, as was made plain at [1320]:

Finally, the applicants’ reply submissions respond comprehensively to a perceived argument that the EDO was the principal actor in this action, pursuing its own agenda and perhaps not genuinely acting on instructions of their Tiwi clients. I have not understood the submissions of Santos to go so far. I understood Santos to allege that the EDO was an actor in the factual landscape because of the conduct of the EDO lawyer at the May Lewis Meeting and the June O’Leary Workshop. Santos was correct in that respect. My findings with respect to those questions are contained in Part V of these reasons and need not be repeated. But I make it clear that I have not entertained any submission that EDO Lawyers was the principal proponent of this action pursuing an ideological agenda. The substantive issues have been determined without reference to any such allegation.

12    The foreshadowed argument on the costs application as now articulated by Santos involves a repetition of the whole of its closing submissions about the “confection” of evidence. Broadly, the argument was described as having three planks, the first relating to EDO Lawyers’ partial funding of the action, the second involving allegations of unreasonable conduct in the preparation and presentation of the applicants’ case and the third relating to the nature of EDO Lawyers’ interest in the outcome, being the achievement of its own ideological agenda as an environmental activist organisation.

13    As explained in its written submissions, Santos seeks to “fully investigate the EDO’s dealings with its experts, its role in the cultural mapping process, the expert’s interactions with each other, how the EDO Synthesized Narratives and Marie Munkara documents were prepared, the independence of the experts, the funding of the proceedings and the EDO’s involvement of other activist groups. The justice of the case supports all of these maters being ventilated so that Santos can fairly put its case that a costs order should be made against the EDO.”

Principles

14    The principles guiding the discretion to award costs against a non-party and its relationship with the discretion to grant leave to issue a subpoena were discussed in Munkara 4. It is convenient to repeat what I said there:

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].

…

15    As discussed in Munkara 4, subpoenas on that application were sought in circumstances where Santos had acknowledged that it invoked the Court’s processes (at least in part) to assist it to decide whether or not to make an application for costs against one or more of the addressees. An issue arose as to whether subpoenas could issue to support an application not then on foot. That issue does not arise on the present application. Insofar as I discussed the applicable principles in that different context (including at [30] – [37]) it is unnecessary to resort to them here.

Broad Objections

16    There are 25 categories of Documents sought on the subpoena directed to EDO Lawyers.

17    EDO Lawyers raises broad objections to the grant of leave, as well as objections to individual categories.

Articulation of the basis for the costs application

18    EDO Lawyers submitted that the factual and legal basis for the costs application must be confined to that set out in the Proposition Statement, and that the Documents could not on any view support a costs application made on that basis. I reject both aspects of that argument.

19    The Proposition Statement does not have the status of a final pleading and there is nothing in the circumstances in which it was furnished that would warrant it being treated as such. On its face it does not purport to be a complete or final statement of Santos’ position.

20    A respondent to a costs application must of course be afforded procedural fairness. That includes a requirement that there be advance notice of the factual and legal basis on which the application is made so that the non-party may prepare evidence and submissions in opposition to it:  Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300, McColl JA, Hodgson and Ipp JJA agreeing (at [92(e)]). That of course must be done before the application is heard.

21    Santos accepts that the Documents are sought not only to obtain evidence to support the costs application, but also to assist it to more fully articulate the factual foundation for it. That stated intention is a relevant factor to take into account in the exercise of the Court’s discretion. However, it does not preclude the exercise of the Court’s power to grant leave.

22    I do not consider the Proposition Statement to be a complete statement of Santos’ position on the costs application and the present application will not be dismissed on that basis. In addition, I do not accept the submission that none of the Documents sought could conceivably be relevant to the case stated in the Proposition Statement, as will become apparent.

23    I accept that a fuller explanation of Santos’ foreshadowed argument on the costs application (and its connection with the proposed subpoenas) has come belatedly. Counsel for EDO Lawyers nonetheless confirmed that no adjournment of the hearing was necessary in order for it to address the arguments.

Proportionality

24    EDO Lawyers submitted that by issuing the subpoenas the Court would allow issues as to costs to expend unwarranted time and resources. It submitted the Court should heed this advice of MColl JA (Hodgson and Ipp JJA agreeing) in Lemoto (at [92(g)]):

The procedure to be followed in determining applications for wasted costs must be fair and ‘as simple and summary as fairness permits … [h]earings should be measured in hours, and not in days or weeks … Judges … must be astute to control what threatens to become a new and costly form of satellite litigation’:  Ridehalgh (at 238–239); Harley v McDonald [2001] 2 AC 678 at 703 [50]; Medcalf (at 136 [24]).

25    That of course is an appropriate approach in the ordinary run of cases. However, there are several features of this litigation that set it apart from the ordinary, specifically the nature, pace, complexity and expense of the trial. In a compressed timeframe the parties prepared cases involving a total of 21 lay witnesses and 24 expert reports. There were 12 legal practitioners at the bar table and more in other parts of the Court. The evidence exceeded 5,000 pages, and closing submissions totalled hundreds of pages including annexures.

26    The time and resources to be expended on costs arguments as against non-parties should be reasonably proportionate having regard to the nature of the dispute and other considerations such as the likely monetary value of the award. The context is such that Santos as the successful party has the benefit of a costs order against the applicants, being Aboriginal people from the Tiwi Islands.

27    I take into account that there has already been a subpoena issued to EDO Lawyers as well as a notice to produce issued during the course of the trial relevant to questions of costs. The documents returned in answering those processes have been used by Santos to support the present application to obtain further material. Costs and resources have also been expended in argument affecting the addressees referred to in Munkara 4, but they are not necessarily to be equated with cost and inconvenience suffered by EDO Lawyers.

28    Provisions conferring powers to award costs and issue subpoenas form a part of the Court’s practice and procedure provisions. The overarching purpose of the provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible:  Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M(1). The purposes include the just determination of all proceedings before the Court, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute:  FCA Act, s 37M(2). The Court must interpret and apply the provisions and exercise the powers conferred by them in a manner that best promotes their overarching purpose:  FCA Act, s 37M(3).

29    The Court has previously been told that Santos has no prospect of having its costs compensated by way of enforcement and satisfaction of the order for costs made against the applicants themselves. In the absence of evidence or a submission to the contrary, I have proceeded on the assumption that that remains the case. I afford that circumstance considerable weight when applying s 37M(3).

30    In the context I have described, the present application is part of a staged approach in obtaining Documents that is neither disproportionate nor inappropriate in the sense suggested by EDO Lawyers. It is relevant to consider the breadth of the categories of Documents, the burden associated with compliance, and the ever increasing costs of the proceeding. But questions of proportionality do not at this stage provide a basis for dismissing the application without reference to its merits.

Relevance of activism

31    As EDO Lawyers correctly identified, Santos’ position on the costs application is that EDO Lawyers is itself an activist organisation and not merely the lawyer for the applicants in the proceeding, and that the outcome sought by the applicants in the proceeding aligned with its own political or ideological objectives. EDO Lawyers submitted that for a non-financial interest in a proceeding to warrant a third party costs order, the non-financial interest must be a “direct interest in, and entitlement to, a substantial part of the fruits of the litigation” or an “interest … which was equal to or greater than that of the party”: Anderson v Canaccord Genuity Financial Ltd (No 2) [2022] NSWSC 649, Ward CJ (at [31] – [32]). It submitted that an outcome in litigation consistent with its own political or ideological position could not be a relevant interest capable of supporting a costs application, such that categories of Documents that evidence acts of activism by EDO Lawyers could serve no forensic purpose. EDO Lawyers submitted that the Court was in error when it said in Munkara 4 (at [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.

32    The Court went on (at [76]) to explain that Santos should not have leave to issue a subpoena to one of the proposed addressees (Market Forces) because:

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.

33    I have understood the submissions of EDO Lawyers to amount to an invitation to reflect on whether Munkara 4 was wrongly decided, and I have done so.

34    The submissions should not be accepted for three reasons.

35    First, they impermissibly ignore the broader factual context evidenced in the materials before the Court in Munkara 4 and presently before me. Without making any definitive finding, the evidence is not merely that EDO Lawyers happened to hold a publicly stated opinion that the pipeline was undesirable. The facts are considerably more complex and nuanced than that. The evidence indicates (again at a preliminary level sufficient for present purposes) that EDO Lawyers was acting both in a lawyer-client relationship with the applicants whilst in the same period engaging in activities in its own name and right as a campaigner to stop the pipeline. The argument to be advanced by Santos on the costs application (as I presently understand it) is that the litigation was conducted by EDO Lawyers as part of its own strategy to achieve the objectives of that campaign, funded in part by it for that reason and conducted unreasonably in order to achieve that objective. That serious allegation was pitched tentatively by Santos. It submitted that the evidentiary material presently before the Court provided a proper foundation for the allegations to be raised and for the issue of a subpoena to obtain Documents that may shed light on the issues either way.

36    Second, the submissions of EDO Lawyers utilise extracts from the authorities in a way that erects them as formulaic tests that must be satisfied before a costs order can be made against a non-party. The Court was not taken to an authority in which an application for leave to issue subpoenas was made against a factual background resembling the facts of the present case as Santos alleges them to be. The Court’s power to award costs is confined by a requirement that it be exercised judicially and within the bounds of reasonableness. The Court must be guided by established principle, but principles are not to be elevated to the status of strict criteria to be checked off in a tick-a-box fashion.

37    In the current interlocutory context, I am not satisfied that the status of EDO Lawyers as an activist organisation and the activities it has engaged in to achieve the objective of stopping the pipeline are considerations that could have no bearing on the question of whether there should be an order that EDO Lawyers pay Santos’ costs.

38    Third, it is wrong to approach the topic of EDO Lawyers’ activism in a way that confines its relevance to the singular question of whether it had a relevant interest in the outcome of the litigation in any event. As I understand Santos’ submissions, the Documents sought on the subpoena are also sought for the purpose of evidencing whether (and if so, how) EDO Lawyers engaged with experts in a manner that constituted an alleged departure from its obligations to the Court as the applicants’ legal representative, and that otherwise explains why the applicants’ case with respect to the protection of their intangible cultural heritage was unsuccessful and wasteful of costs. This is not the occasion to make any finding about whether Santos’ submissions on those interrelated topics will or will not succeed. It is enough to observe that in all of the circumstances there is a sufficient evidentiary foundation for the arguments to be articulated for the limited purposes of the present application. Viewed broadly, the argument is that the relationship between EDO Lawyers and the litigation is such as to warrant a non-party costs order, but Santos seeks further Documents to enable it to articulate the particular features of the relationship that make it so.

39    The circumstance that Santos may not succeed on its application is not to the point. I reject the submission that the arguments foreshadowed by Santos about the relevance of EDO Lawyers’ activism against the Barossa Project could not conceivably succeed as a matter of legal principle. The issues arising on the costs application may be novel, but that is a reflection of the unique factual circumstances of the case.

40    As to the reasons in Munkara 4, nothing said in that judgment stands for the proposition that to obtain an award of costs against a non-party it would be sufficient to show that the non-party provided moral support for litigation having an objective that aligned with the non-party’s personal views. The Court refused to grant leave to issue a subpoena addressed to Market Forces for that very reason. Leave was granted to the remaining addressees because there was evidence that each of them may have had some other relevant connection with the proceedings, including because they had made public statements aligning success in litigation relating to the pipeline as though it were their own success:  Munkara 4 (at [61] (Jubilee Australia), [63] (Sunrise Project), and [68] – [70] (ECNT)).

Oppression

41    A subpoena should not place an excessive burden to produce large number of documents that are not relevant or only marginally relevant. As French J (as his Honour then was) observed in Australian Gas Light Company ACN 052 167 405 v Australian Competition & Consumer Commission [2003] FCA 1101 (at [8]):

It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.

42    EDO Lawyers submitted that 13 of the 25 categories of Documents are expressed in such broad terms that they are tantamount to discovery, a fishing expedition and an abuse of the Court’s processes:  categories 3, 4, 6, 8, 10, 11, 12, 14, 15, 16, 17, 24 and 25. It was submitted that those categories contained no limitations as to timeframe or the identity of parties to the communications referred to in them, and so were an impermissible attempt to have a non-party search for and produce all material relating to a particular subject matter:  Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869, Jordan CJ (at [14]). It was submitted that the breadth of the categories was itself an indicator of a lack of forensic purpose.

43    The submissions do not in terms state that the categories complained of would call for the production of a vast number of documents and so involve an unjustified inconvenience amounting to oppression. An argument of that kind was directed only to category 22. The other categories are complained of because of the interpretive task it would impose on the Proper Officer of EDO Lawyers in complying with the subpoena.

44    It is convenient to address these arguments when considering each category.

Legal professional privilege

45    Finally, EDO Lawyers submitted that many of the categories call for the production of Documents over which a claim of legal professional privilege may be made. That may or may not be so. There is a need for case management orders to facilitate and determine any claim of privilege that may properly be made in connection with communications evidenced in the Documents. But it is not appropriate at this stage to pre-empt any such claims or to express any preliminary view about their merits. I have taken into account the additional burden of reviewing documents to protect and advance privilege claims.

Disallaowed categories

46    I will now explain why leave will not be granted in connection with categories 2, 3, 4, 6, 7, 8, 10, 11, 14, 15, 16, 17 and 25.

Categories 2, 6 and 10

47    These categories seek the production of all documents constituting, recording or evidencing communications with Mr Lewis, Dr O’Leary and Dr Kearney respectively, occurring on or after 22 December 2022, being the day on which the Court reserved judgment at the conclusion of the trial.

48    Santos submitted that it was inherently probable that communications between EDO Lawyers and the experts after the hearing “may well evidence” EDO Lawyers’ “unreasonable conduct” including because it may include the ventilation of issues in a way that would illuminate the experts’ lack of independence. As at 22 December 2022, the greater proportion of the costs had already been incurred, but the parties continued with the preparation of written closing submissions into the new year.

49    In my view, the claim for these categories involves too much supposition, both as to the likelihood of the existence of post-reservation communications and as to their content. It appears that Santos assumes that things said after the trial may evidence things done during it that may be relevant to the question of costs. The evidentiary basis for that assumption is not clear. I am not satisfied that there is a sufficient evidentiary foundation for these categories.

50    In respect of all remaining categories in all of the subpoenas not already having an end date, the end date of 22 December 2023 should apply.

Categories 3, 4, 7, 8, 11 and 12

51    Categories 3 and 4 seek all documents constituting, recording or evidencing the communication of, respectively, Lewis 1 and Lewis 2 (or any drafts) and the minutes of the May Lewis Meeting (or any drafts) “to any person or entity”. Categories 7 and 8 are similarly phrased, but relate respectively to O’Leary 1 through to O’Leary 5 and documents evidencing the “content” of the June O’Leary Workshop. Category 11 is in similar terms but relates to Kearney 1 (or any draft of it). Category 12 relates to the May Lewis Meeting. It too captures communications with “any person or entity”.

52    I consider these categories to capture some material that is captured by other categories discussed below, specifically categories 1, 5 and 9 relating to Mr Lewis, Dr O’Leary and Dr Kearney respectively as well as category 22. Categories 3, 4, 7, 8, 11 and 12 are wider because they are not confined by any date range and because they capture communications “to any person or entity”, that is, communications to which EDO Lawyers may not be a party.

53    It is necessary to identify a forensic purpose to be served by these categories over and above the other categories that are to be allowed. I accept that legal professional privilege may be lost in a communication if the communication is shared or disclosed to persons outside of the requisite relationship, and that the existence of some documents in categories 3, 4, 7, 8, 11 and 12 may well constitute or evidence a waiver. But I do not consider it to be a proper use of a subpoena to obtain materials that would assist in the resolution of claims of privilege that may be made in respect of other materials. The Court will consider appropriate case management measures to ensure that claims are properly articulated, and that events that might constitute a waiver of privilege are disclosed by the person asserting the claim.

54    I am satisfied that there is a proper evidentiary foundation to seek documents evidencing communications between EDO Lawyers and three of the organisations mentioned in category 22, as discussed below. If the Documents referred to in categories 3, 4, 7, 8, 11 and 12 were communicated by EDO Lawyers to those organisations after 22 November 2022 they will otherwise be captured.

Category 14

55    This category seeks documents constituting, recording or evidencing the communication of the contents of the Knowing Sea Country Report, or any draft of it, to “any person or entity”. It is not confined by any timeframe nor by the parties to the communication. I am not satisfied that it serves a legitimate purpose over and above that served by category 13 and category 22, discussed below.

Categories 15 and 16

56    These categories seek “[a]ll documents constituting, recording or evidencing communications between the EDO and Dr Patrick Horton” in relation to specified subject matters as well as documents evidencing the contents of the Horton Literature Review (or any drafts) to any person or entity.

57    The Horton Literature Review is discussed in Munkara 3 (at [1053] – [1058]). It was commissioned by EDO Lawyers by a letter of instruction dated 28 March 2023 and was provided to Dr O’Leary, Mr Lewis and Dr Kearney as being in the nature of assumptions. It drew in part on a Masters thesis prepared by Ms Marie Munkara in 2017:  see Munkara 3 (at [1058]). The review did not draw on Ms Munkara’s Sea Country Narratives. The document was not the subject of any express or implied adverse finding whether relating to the author’s lack of independence or otherwise. None of the expert witnesses were criticised for referring to it or drawing from it. The circumstance that the author made reference to an earlier thesis of Ms Munkara does not, of itself, warrant a conclusion that communications with the author may shed light on the issues that arise on the costs application. For those reasons, categories 15 and 16 will not be permitted.

Category 17

58    This category seeks “[a]ll documents constituting, recording or evidencing the dissemination of” any one of the expert reports read in the proceeding “to any person or entity”. As with the categories just discussed, it is unconfined by time or by the parties to the communications that may be captured. To the extent that it captures Documents having a legitimate forensic purpose, those purposes are served by other categories.

59    Overall, even if there is some forensic purpose to be served by the disallowed categories over and above the categories yet to be discussed, I would disallow the categories in my discretion in any event, because the apparent relevance does not justify the additional burden in assessing Documents for compliance with descriptions having such a wide ambit.

Category 25

60    This category seeks “[a]ll documents and/or communications from and to the Hon Tanya Plibersek MP or her staff, office or department in relation to the Proceeding or the Santos Barossa Gas Project”. On the material before me it appears that following judgment in Munkara 3 there was an inquiry into whether there had been a breach of EDO Lawyers’ funding agreements under the Commonwealth Simple Grant Agreement, which I infer concerned its accountability for the use of public funds. A report concluded there had been no breach. On the material before me, I am not satisfied that the inquiry involved considerations sufficiently connected with the broader issues that will arise on the costs application. The relevance of Documents falling within this category has not been established, other that at the level of supposition. If I am wrong about that I would preclude the category in my discretion, having regard to the scope of Documents otherwise to be produced in response to the allowed categories.

Allowed categories

61    Before proceeding further, it is necessary to summarise some of the material relied upon by Santos as providing a broad evidentiary foundation for the allegations and concerns raised by it.

62    The evidence is not to be assessed for the purpose of establishing whether Santos is presently in possession of enough evidence to prove the allegations on the balance of probabilities. The Court is presently concerned to ensure that the categories of Documents remaining to be considered are not merely speculative in their nature and to ensure that the concerns have some reasonable foundation in the material beyond conjecture.

63    The findings in Munkara 3 are summarised at [10] above. It is convenient to set out in full what was said at [1177] in connection with a part of Dr O’Leary’s expert evidence:

In the absence of explanatory evidence, the 2023 Marie Munkara Narratives are capable of supporting an inference that Marie Munkara was acutely aware of the objective of stopping the pipeline and, in addition, that she had had regard to the maps created by Dr O’Leary at the time that she prepared her narratives so as to match the narratives to the submerged landscape. But it is not necessary to go so far. I am not satisfied that the 2023 Marie Munkara Narratives can be regarded as reliable evidence capable of proving the truth of the contemporary factual matters she asserts within them, including any fact relating to her subjective beliefs or state of mind. Whilst they are admissible under s 72 of the NT Act, I give them no weight.

64    That is an example of the Court going only so far as was necessary to determine the controversy then before it. The foreshadowed arguments on the costs application will invite the Court to go further.

65    For the purposes of costs, the Court’s reasons for rejecting the expert evidence on the topic of intangible cultural heritage reasonably give rise to questions as to whether EDO Lawyers was aware of matters affecting the independence and hence the integrity of the expert evidence it adduced on behalf of the applicants, including matters affecting the integrity of assumptions presented to them. There are features that give rise to at least a concern (beyond mere speculation) that the case it presented may have been knowingly lacking in rigour and independence. Among them is the circumstance that Ms Munkara’s Sea Country Narratives were presented to the Court as being in the nature of assumptions provided to an expert with an initial brief of instructions, whereas it appears that the narratives may have been prepared (to the knowledge of EDO Lawyers) with some involvement of the expert himself. Among the material now before me is correspondence from EDO Lawyers confirming that Ms Munkara prepared a written document following a meeting between her and Dr O’Leary and that she had not been briefed to do so by EDO Lawyers. It remains that EDO Lawyers and Dr O’Leary himself represented those narratives as being in the nature of factual assumptions upon which he relied. There is some basis for a concern (beyond mere speculation) that Dr O’Leary, with the knowledge of EDO Lawyers, had a hand in the creation of the very assumptions about traditional stories that he found remarkably coincided with features on his submerged seafloor maps. The Sea Country Narratives were then provided both to him and Mr Lewis as being in the nature of factual instructions upon which he could and should act.

66    Those circumstances are to be considered in conjunction with other observations made by the Court about the conduct of the June O’Leary Workshop and the May Lewis Meeting, which need not be repeated here.

67    Santos’ arguments concerning the confection of evidence encompasses a concern that the Sea Country Narratives themselves involved a confection. Without expressing any substantive views I am satisfied that the evidence before me discloses a basis to raise that serious issue.

68    In addition, two of the experts who gave evidence at the trial were co-authors (together with three others) of the Knowing Sea Country Report having the features and ramifications discussed in Munkara 3 (at [119]) and elsewhere. That Report took the form of correspondence addressed by the authors to Santos directly. In that respect there is some evidentiary basis for a concern that the experts were actors in the factual narrative pursuing the cause of stopping the pipeline. Santos’ assertion that EDO Lawyers may have commissioned that Report as part of a broader campaign to stop the pipeline cannot be described as baseless or speculative. I again emphasise that these observations are made only at the preliminary level necessary to satisfy myself that there presently exists some basis for Santos to articulate its position on the costs application in the way that it has.

69    Also contained in the affidavits is a considerable amount of evidence capable of supporting a finding that EDO Lawyers is an activist organisation its own name and right and that in that capacity it has engaged in activities intended to stop the pipeline and the Barossa Project more generally. The evidence shows that EDO Lawyers is an active participant in the Stop Barossa Gas campaign discussed in Munkara 4. There is evidence of public statements to the effect that litigation forms a part of a strategy to meet environmental objectives, specifically including the objective of stopping the pipeline. That evidence must be considered in the context of all of the material before me.

70    The affidavits contain evidence that the same lawyer referred to in Munkara 3 (in passages between [1121] and [1179]) is quoted in a public profile page as wanting to join EDO Lawyers to work on stopping the harmful impacts of the expansion of gas projects in the Northern Territory. She referred to opportunities for legal intervention to prevent the impacts of the projects. She stated “[o]ur capacity in the Gas team to tackle this work has recently expanded and we are not letting anything through to the keeper. We are firing on all cylinders to challenge approvals, make submissions to inform decision making and inform law reform. We’re working closely with Aboriginal communities and partners in the environmental sector to coordinate our efforts and maximise our impact”. Evidence of that kind must of course be considered in the proper context of EDO Lawyers’ role as a firm of legal representatives. But it is also to be considered in the context of other material.

71    As in Munkara 4, there is evidence that EDO Lawyers had met some of the applicants’ expenses of the litigation totalling about $150,000.00.

72    The affidavits contain evidence extracted from EDO Lawyers’ website and social media pages. They show that EDO Lawyers actively campaigned against the Barossa Project and appealed for donations to aid a “legal fight” related to it. It is not necessary to summarise all of the material here. Its overall effect is that EDO Lawyers has from 2022 publicly criticised the Barossa Project by way of articles and social media posts specifically referring to Santos and to the interests of Aboriginal people from the Tiwi Islands. In direct connection with those articles and social media posts it has appealed for public donations to fund the “legal fight”, in words such as this (at [30]):

Join the legal battle to protect our unique and precious environment

With support from people like you, we can run more groundbreaking cases and deliver expert legal advice to people all over the Australia-Pacific region

73    And this (at [37]):

URGENT APPEAL

Help take big polluters to court …

Donate today to propel the legal fight against coal and gas companies like Woodside and Santos that are fuelling dangerous climate change.

(emphasis in original)

74    Appeals for funds in similar terms continued in 2023, including by way of an article published on the day that this proceeding was commenced.

75    EDO Lawyers submitted that the fundraising activities were not significant in the context of a costs application. It submitted that the circumstances were analogous to a community legal centre raising money to support its services, including important pro bono legal services in the community. Whether that analogy is sound is an issue to be determined in the context of the evidence as a whole and with the benefit of full submissions on the costs application. There may be arguments either way. The arguable case for Santos is that EDO Lawyers had a role in the proceeding that differed from the role ordinarily played by a lawyer for a party. The submissions of EDO Lawyers on this topic do not persuade me that there is no proper basis for the issue of a subpoena. The evidence tends to suggest that it is not in an analogous position to that of a community legal centre engaging in general fundraising activities unrelated to the achievement of any particular outcome, but all of that is for another day.

76    I am mindful that the Court’s power to award costs against a legal practitioner is guided by a number of considerations that are not present in cases where the target of the costs application is a non-lawyer, including considerations affecting the public interest in the administration of justice more generally. However, they do not of themselves justify the refusal of the present application for leave to issue the subpoenas. I have taken them into account in the exercise of my discretion but consider that the argument on the costs application should proceed on the basis of the best available non-privileged evidence relevant to an assessment of EDO Lawyers’ role in, and relationship with, the litigation.

77    The remaining categories are to be considered in light of all of the evidence considered together. I reject the submission of EDO Lawyers that there is no proper basis for Santos to raise the three planks of its argument at a preliminary level necessary to support the grant of leave to issue the subpoenas.

Categories 1, 5 and 9

78    Category 5 seeks all documents constituting, recording or evidencing communications between EDO Lawyers and Dr O’Leary “in relation to or referring to any one or more of” the following subject matters between November 2022 and 14 June 2023 (being the date of his first engagement letter):

(1)    the pipeline;

(2)    the pipeline EP;

(3)    the Stop Barossa Gas campaign;

(4)    NOPSEMA; or

(5)    Santos or any of its related entities.

79    That category would capture all communications with Dr O’Leary on the listed subject matters in a six month period. I am satisfied that they may assist in the resolution of some of the issues arising on the costs application, including:

(1)    the extent (if any) to which matters (if any) affecting Dr O’Leary’s independence were known to EDO Lawyers;

(2)    relatedly, the circumstances in which Ms Munkara’s Sea Country Narratives came into existence and EDO Lawyers’ knowledge of those circumstances; and

(3)    the extent (if any) to which EDO Lawyers was responsible for the Knowing Sea Country Report coming into existence and its knowledge and purposes in connection with it.

80    The timeframe is appropriate in that it does not go beyond the date of first engagement.

81    The Knowing Sea Country Report contains submerged seascape mapping which appear to be a first step in what was ultimately to become Dr O’Leary’s cultural mapping exercise.

82    The evidence before me includes statements by Dr O’Leary at a public gathering before the commencement of this proceeding at which he spoke freely about the pipeline and work he had done in connection with it. It also includes a file note showing that Dr O’Leary had a meeting and communications with EDO Lawyers in December 2022, several months prior to the first written letter of engagement disclosed at the trial.

83    The evidence is capable of supporting an inference that EDO Lawyers was responsible for his initial involvement resulting at first in the Knowing Sea Country Report. The Documents in this category may assist identifying whether EDO Lawyers is connected with the litigation in a way that could justify an award of costs against it.

84    Category 1 is in identical terms, except that it captures communications with Mr Lewis on the same topics in the period November 2022 to the date of his first written engagement in May 2023.

85    The expert opinion of Mr Lewis was not the subject of such strident criticism in Munkara 3. However, in my view there is a legitimate forensic purpose in obtaining documents that illuminate the relationship between EDO Lawyers and the experts it called on behalf of the applicants in support of the intangible cultural heritage aspect of their case more generally. Documents in this category will disclose the existence of communications with Mr Lewis prior to his first letter of engagement. They may reasonably be expected to throw light on some of the issues arising on the costs application, specifically whether the role of EDO Lawyers in the proceeding went beyond that of a legal representative of the applicants or amounted to unreasonable conduct of the kind referred to in Santos’ submissions. To meet that test it is not necessary to conclusively find that the Documents exist or that they would necessarily assist Santos to succeed on the costs application.

86    Category 9 is in the same terms, but captures communications with Dr Kearney from November 2022 and the date of her first written engagement one year later. Dr Kearney was one of the authors of the Knowing Sea Country Report. This category should be allowed for similar reasons to those given in relation to categories 1 and 5.

Categories 13 and 23

87    Category 13 seeks all Documents constituting, recording or evidencing communications between EDO Lawyers and the authors of the Kowing Sea Country Report. It is not confined by any timeframe nor is it confined in its subject matter. In my view, the subject matter of the communications should be the same as those listed in category 1. In addition, for the same reasons given in connection with categories 2, 6 and 10, the category should not capture communications occurring after the reservation of judgment in the proceeding. With those limitations, I am satisfied that Documents falling within this category may reasonably be expected to throw light on the role that EDO Lawyers played in the commissioning of the Report and whether its activities in that regard are to be characterised as acts done in its capacity as an activist in its own right pursuing a strategy to stop the pipeline. Again, I express no view on whether Santos might ultimately succeed on a costs application based in part on considerations of that kind.

88    Category 23 seeks all invoices issued to, or received by, EDO Lawyers “in connection with the matters the subject of the Proceeding or the preparation of the Knowing Sea Country Report from November 2022”. Santos is already in possession of remittance advices showing payments by EDO Lawyers of considerable expenses related to the proceeding. I consider the invoices issued to EDO Lawyers may relevantly inform the question of the extent to which it funded the action and the kind of expenses that it met from its own resources (over and above providing is own legal services without the charge of a fee).

Categories 18, 19 and 22

89    These Documents relate to Ms Munkara as the author of the Sea Country Narratives. They are directed to exploring the nature of the relationship between Ms Munkara and EDO Lawyers and to ascertaining the circumstances in which and purpose for which the Sea Country Narratives were prepared. In light of my observations on this topic earlier in these reasons and in Munkara 3, I am satisfied that Documents in these categories may reasonably be expected to shed light on the question of whether EDO Lawyers knowingly participated in a process culminating in an expert report that lacked independence and integrity. Among the concerns arising on the material presently before the Court is the appearance that Dr O’Leary expressed the opinion that matters previously known by Ms Munkara (without reference to the maps) were matched to features identified by him on the sea floor, when in fact, Ms Munkara (with Dr O’Leary’s knowledge and assistance) had reference to the maps before preparing the Sea Country Narratives. Such practices (if demonstrated) may arguably form a basis for a costs application against a legal practitioner knowingly participating in it. None of that is to express any view as to what in fact occurred. It is enough to say that the evidence presently available gives rise to an arguable issue on the costs application that is relevantly informed by these categories.

Categories 21 and 24

90    Category 21 seeks all Documents constituting, recording or evidencing communications between EDO Lawyers and Ms Antonia Burke in respect of these subject matters:

(1)    the pipeline;

(2)    the pipeline EP;

(3)    the Stop Barossa Gas campaign;

(4)    the Tipakalippa proceedings;

(5)    the Sea Country Narratives;

(6)    the June O’Leary Workshop;

(7)    the May Lewis meeting;

(8)    the expert reports adduced at trial;

(9)    the Knowing Sea Country Report;

(10)    this proceeding;

(11)    the respondent or any of its related entities; and

(12)    letters from EDO Lawyers to Santos and NOPSEMA dated 15 December 2022, including any engagement letters, retainers or invoices.

91    Category 24 seeks all documents and/or communications recording or evidencing any payment by EDO Lawyers to Ms Burke (or the Antonia Burke Consultancy) since November 2022, including but not limited to invoices rendered by them.

92    The material before me supports inferences that Ms Burke (whether in her personal capacity or through a consultancy business operated by her) has engaged in activities in conjunction with EDO Lawyers with the intended outcome of stopping the Barossa Project, that she is a participant in the Stop Barossa Gas campaign, that she engaged in work apparently connected with the preparation of the applicants’ case, and that she attended the June O’Leary Workshop and other meetings related to the litigation, as well as the trial. The evidence of disbursements paid by EDO Lawyers relating to the proceeding include payments to Ms Burke or her consultancy.

93    Santos submits that the Documents in these categories may reasonably be expected to shed light on the question of funding as well as the question of whether EDO Lawyers had a substantial interest in the outcome of the proceeding of a kind that would warrant an order for costs against it. I have already explained why Santos’ arguments in relation to the nature of that interest and its sufficiency to support a costs order should not be rejected in the context of a subpoena application. I am satisfied that there is a legitimate forensic purpose for the subpoena insofar as it seeks material that goes to explain the relationship between EDO Lawyers and Ms Burke both in direct relationship to this proceeding but also in relationship to the Stop Barossa Gas campaign of which both she and EDO Lawyers are a part. That in turn will be relevant in determining whether Santos’ submissions on the topic should or should not be accepted in light of all relevant facts.

94    However, I am not satisfied that category 21 should be unlimited in time, given the breadth of the subject matter referred to. The category should be limited to communications from 15 September 2022, being three months prior to the letter to Santos and NOPSEMA on 15 December 2022. It should then be confined by an end date of 22 December 2023. If Santos should take the view that Documents returned in these categories provide a basis for seeking documents dating back to an earlier time, that can be the subject of a further application to be decided on its merits as part of a staged process having regard to the need for proportionality.

Category 22

95    As amended (with the changes underscored) this category is as follows:

All documents constituting, recording or evidencing communications between the EDO and each of the Sunrise Project Australia Limited, Market Forces Limited, Jubilee Australia Research Centre Ltd and Environment Centre (N.T) Inc after November 2022 in relation to the Barossa Gas Project, including but not limited to the matters referred to in subparagraphs (a) – (l) of Category 21.

96    In Munkara 4 I identified the entitles mentioned in this category as participants (some described as “partners”) in the Stop Barossa Gas campaign. Three of them were the addressees of subpoenas that are no longer pressed. The evidence before me includes affidavits relied upon by Santos in Munkara 4 and I have had regard to that material in this different context.

97    Santos submits that Documents in this category will relevantly inform the question of whether EDO Lawyers had, as an activist organisation, an interest in the outcome of the proceeding sufficient, when considered with other things, to warrant a costs order against it. It also submits that the Documents may relevantly inform the question of funding.

98    Generally speaking, I am satisfied that evidence of acts undertaken by EDO Lawyers to stop the Barossa Project and the pipeline are relevant in assessing whether it had a role in the proceeding different to that of the legal representative of a party. The material is relevant to an assessment of the whole its relationship with the proceeding, especially having regard to the circumstance that it has met some of the expenses of it. Without expressing a view on the ultimate merits of the argument to be advanced by Santos, I am satisfied that the Documents inform the question of whether EDO Lawyers partially funded the litigation in order to achieve its own desired outcome as an activist organisation. The Documents may inform the question of whether the litigation formed a part of a strategy of the Stop Barossa Gas campaign of which the named organisations formed a part. I take into account that three of the entities have published statements that led to the observations in Munkara 4 that they may have had some involvement in the proceeding themselves, although the nature of any such involvement is unknown. Considered together those features satisfy me that the category is relevant insofar as it refers to entities other than Market Forces. I give separate consideration to the inclusion of that entity given what was said in Munkara 4 about it. I do not consider the evidence in relation to that entity to be sufficient to warrant its conclusion in category 22. If I am wrong in my assessment of relevance, I would exclude that entity in any event because of the lack of evidence that it viewed any success in the litigation action as a success of its own and because the inclusion of communications with the remaining entities is likely to yield material that will inform the specific questions arising on the costs application either way.

99    Ms Jo-Anne Bragg is General Counsel at EDO Lawyers. In her affidavit affirmed on 7 May 2024, she deposed to matters affecting the burden of compliance with category 22 in the form that it was then proposed, unbound by time or subject matter. The affidavit does not address the burden of complying with the category in its amended form. Ms Bragg discusses the processes of identifying Documents within the category by means of electronic searches. She deposes that an initial search may yield 33,000 individual documents requiring review for relevance, privilege and “confidentiality”. She deposed that the review process by one staff member may take 16 weeks, and that the process of review would have a significant impact on the day to day running of the organisation, including because of the diversion of lawyers and limited financial resources.

100    Ms Bragg said that a significant volume of documents captured by the category would have nothing to do with the present proceedings and that they may be subject to claims of legal professional privilege because EDO Lawyers provides legal services to each of the organisations referred to in the category in 41 maters unrelated to this proceeding.

101    The amendment to category 22 was first proposed by Santos on 14 May 2024, after the affirmation of Ms Bragg’s affidavit. There is no further affidavit of Ms Bragg deposing to the likely burden of complying with the category in its amended form. The affidavit of Ms Bragg does not establish that the 41 matters she referred to were ongoing as and from 22 November 2022 so as to give rise to a need to review the documents to maintain claims of legal professional privilege. Any matters that are ongoing would, according to Ms Bragg, be “unrelated to this proceeding”. As such, in the absence of evidence to the contrary I consider it unlikely that the category would capture communications arising in the context of the 41 matters involving lawyer-client relationships. If they did, claims for privilege could readily be made against them in bundles referable to each matter.

102    The reference in Ms Bragg’s affidavit to “confidentiality” is not enlarged upon. A subpoena by its nature will require the production of documents to the Court after which there may be orders for uplift and inspection. The evidence contained in Ms Bragg’s affidavit does not go so far as to suggest that disclosure of the Documents would amount to a breach of an obligation of confidence, as opposed to an unwanted intrusion on the privacy of the parties to the communications. The Court will hear arguments as to uplift and inspection in due course, but the possibility that there will be objections to inspection of that kind is not a sufficient reason to refuse leave.

103    Santos has proposed a regime by which it would provide financial and practical support in connection with compliance with the subpoena, not only in connection with category 22 but all other categories. I do not otherwise consider the category to be burdensome by reason of uncertainty in its expression or because it would leave too much to the evaluation of the Proper Officer. I am satisfied on the evidence before me that the subject matters to which the categories relate, whilst broad, are subject matters that personnel within EDO Lawyers would readily understand. I accept that there will be some burden placed on EDO Lawyers associated with compliance with the category and the subpoena more generally but in my evaluation the evidence does not amount to oppression. It is true that Santos already has possession of publicly available evidence about the Stop Barossa campaign. However this category captures dealings between EDO Lawyers and the three organisations made away from public view and that have direct connection with the Barossa Project. The timeframe commencing from November 2022 provides a reasonable basis to suppose that the communications may be relevant to the costs application given the chronology of events described in Munkara 3.

104    The position of Sunrise Project, ECNT and Jubilee Australia for the most part are subsumed in my rejection of EDO Lawyers’ position. The organisations otherwise submitted that there could be no forensic purpose served by this category because Santos was already in possession of enough evidence to demonstrate that EDO Lawyers was an activist organisation engaging in activities to stop the pipeline in conjunction with them. As I have already observed, there is already a body of evidence comprising public statements that may assist Santos in that aspect of its case. However, that does not mean that communications passing between EDO Lawyers and the organisations could serve no legitimate forensic purpose. In my view, the communications relating to the listed subject matters may reasonably be expected to shed light either way on the nature of the relationship between EDO Lawyers and the litigation (when considered in light of other material discussed elsewhere in these reasons) including the question of whether the litigation was commenced, supported or conducted in part to implement a broader strategy of the Stop Barossa Gas campaign.

The subpoena addressed to Dr O’Leary

105    The proposed subpoena to Dr O’Leary has 11 categories of Documents. Dr O’Leary did not make submissions in relation to any specific category, but “abided the event” on the subpoena addressed to EDO Lawyers.

106    I have considered the extent to which the 11 categories of Documents are similar those categories in the EDO Lawyers subpoena that have been disallowed in whole or in part. To the extent that there is a category of Documents that has no obvious counterpart in the EDO Lawyers’ subpoena I have proceeded on the basis that Dr O’Leary makes no submission in opposition to it. The outcome is as follows:

(1)    category 1 will be allowed;

(2)    category 2 will be disallowed for the reasons explained in relation to categories 2, 6 and 10 of the EDO Lawyers’ subpoena;

(3)    categories 3, 4 and 5 will be disallowed because they refer to “any person or entity” and similar disclosure will be captured by remaining categories;

(4)    with the limitation discussed below, category 11 will be allowed on the basis that it is relevant in an assessment of Dr O’Leary’s independence and his relationship with EDO Lawyers;

(5)    categories 6, 7 and 8 will be allowed with the addition of the words “until 22 December 2023”; and

(6)    categories 9, 10 and 11 will be allowed with the addition of the words “between and including 15 September 2022 and 22 December 2023”.

The subpoena addressed to Mr Lewis

107    The proposed subpoena addressed to Mr Lewis has nine categories of Documents. The approach adopted with Dr O’Leary will also be adopted here. The outcome is as follows:

(1)    category 1 will be allowed;

(2)    category 2 will be disallowed for the reasons explained in relation to categories 2, 6 and 10 of the EDO Lawyers’ subpoena;

(3)    categories 3 and 4 will be disallowed because they refer to “any person or entity” and similar disclosure will be captured by remaining categories;

(4)    categories 5, 6 and 7 will be allowed with the addition of the words “until 22 December 2023”; and

(5)    categories 8 and 9 will be allowed with the addition of the words “between and including 15 September 2022 and 22 December 2023”.

Associate:

Dated:    4 July 2024