Robertson J made orders in the form sought by the State of Queensland that all documents filed or to be filed in by the applicants and the State in Wadja People QUD422/2012, Western Kangoulu QUD229/2013 and Wulli Wulli #3 (Part A) QUD619/2017, and the applicants, the State or Mr Trevor Lamb and Ms Pamela Hegarty in Gaangalu Nation People QUD400/2012 be available to each of those parties’ experts to refer to and comment upon in any of those matters.
The four proceedings have a common set of programming orders due to three commonalities of factual issues arising across the filed applications: first that each of the claim groups was part of a broader regional society, second that some of the claim groups were described by reference to descent from common apical ancestors and third that there was a geographical overlap in the area of land claimed between the Gaangalu and Wulli Wulli claims.
The Court ordered the parties’ expert witnesses to attend conferences on or before 15 November 2018 to identify areas of agreement or disagreement in their respective opinions. The Court proposed to hold conferences in the matters where apicals are shared or the claim area overlaps, as well as a regional conference involving all four claims.
On 16 October 2018, counsel for the State emailed a common letter to each of the applicants’ legal representatives noting the Court’s proposal to hold joint expert sessions and requesting permission for the State’s expert (and, it would follow, experts of other parties involved) to have access to documents filed in each of the individual matters, and source documents referred to in them, across the four matters and where necessary to refer to and comment upon that material in the other matters. The State considers that the proposed joint expert conferences are unworkable in the absence of agreement that material received in one matter may be referred to generally across the cluster.
The applicant in the Wulli Wulli application agreed to the State accessing all documents filed in the proceedings on an open basis for the purpose of allowing the State’s expert to provide comment. The Western Kangoulu, Gaangalu Nation People and Wadja People applicants opposed the State’s application.
Robertson J was not persuaded that any of the submissions put on behalf of those opposing the State’s interlocutory applications provided a basis to disentitle the State from the orders which it sought. His Honour found there to be no evidence that the orders sought will increase the scale of any party’s litigation, though his Honour did find is that there are commonalities across the four matters and the State needs to address, for example, the regional society contended for in each matter and should as a matter of achieving justice in the other three of the four matters be permitted do so with reference to material which is not confined to each individual matter alone.
His Honour considered there to be special circumstances which justify releasing the State and the other parties from any Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman v Home Office) obligation they owe in respect of the documents received by them firstly because it is clear that there is the potential for evidentiary overlap in the four proceedings: ‘It follows that use of the documents from one proceeding in the joint conferences has the potential for achieving justice in each of the other proceedings, as well as expediting their progression to final determination’ at [47]. Secondly, for present purposes and until further order, use of the documents will be confined to the experts and the purposes of the four proceedings. This operates to remove prejudice to the authors of the documents and the producing party.
Robertson J concluded that the use of the documents or information by the State and by each of the applicants is reasonably required for the purposes of doing justice between the parties in the other proceedings and made the orders as sought by the State.