White J dismissed the interlocutory application of the Barngarla and Nukunu peoples seeking to make use of documents prepared for use in earlier native title proceedings.
Background
Each of the Barngarla, Nukunu and Kokatha peoples have filed applications for the determination of native title over areas in the city of Port Augusta. These are the Barngarla Native Title Claim (SAD6011/1998); the Nukunu Native Title Claim (SAD6012/1998); and the Kokatha #3 Native Title Claim (SAD83/2016). The Court later ordered that the overlapping claims proceed as one proceeding known as the Port Augusta Overlap Proceeding (Action No SAD6011/1998).
On 26 November 2018, the Barngala and the Nukunu Peoples filed an interlocutory application for the summary dismissal of the Kokatha #3 Claim under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). This application was made on the basis that the Kokatha had no reasonable prospect of successfully prosecuting the application; and/or it was otherwise an abuse of the process of the Court.
That application was made following the High Court’s dismissal of the application for special leave to appeal the Federal Court’s judgment in Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36, referred to as the Lake Torrens Overlap Proceedings.
Barngarla and Nukunu’s peoples' current application
The Barngarla and Nukunu’s interlocutory proceeding sought an order that six documents filed in the Lake Torrens Overlap Proceedings “be available for use” in the hearing of their summary judgment application. They also sought an order that the “material” be used only for the purposes of the summary judgment application.
The six documents are described by the Barngarla and the Nukunu as follows:
Report of Conference of Experts, signed by the four experts and the District Registrar and the Deputy Registrar on 7 July 2015;
Report of Conference of Experts held 10 & 11 September 2015, signed by the eight experts and the Deputy District Registrar and the Deputy Registrar on 11 September 2015;
Report on behalf of the Barngarla (Lake Torrens) Claimants by Deane Fergie, Rod Lucas and Paul Monaghan, dated 6 October 2015;
Final Expert Report of Associate Professor Jon Willis (nonrestricted version), filed 7 October 2015;
First Respondent’s Expert Report of Professor Peter Sutton (redacted version), dated 20 October 2015; and
Connection Report, Adnyamathanha Native Title Application – Lake Torrens by Bob Ellis, revised 15 December 2015.
The Kokatha Peoples and the Commonwealth opposed this application.
The Bangarla and the Nukunu accepted that each of the six documents were subject to an order made by Mansfield J on 10 December 2014. The effect of those orders was to confine dissemination and use of the documents to the purposes of the Lake Torrens Overlap Proceedings.
Harman Undertaking
The Bangarla and Nukunu peoples also accepted that the use of each document was subject to the Harman Undertaking (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). The Harman Undertaking required that ‘all parties to litigation not use for any other purpose, documents which another party was compelled by Court order or rule to produce in the litigation, without the leave of the Court’. A breach of this rule could be punished as contempt.
White J stated that it was open to the Court to release a party from the Harman Undertaking, however, the dispensing power was not freely exercised, instead only when special circumstances existed. His Honour proceeded on the basis that in this instance the Court had the power to make an order of the kind sought by the Barngarla and the Nukunu peoples.
The Barngarla and Nukunu peoples submitted that five matters indicate that the Court should find the six documents available for use in the summary judgment application:
The documents in question deal, amongst other things, with the areas of land which have been occupied by the Kokatha, both traditionally and otherwise, and so are relevant to the issue of whether the Kokatha have any rights and interests over the land encompassed by the Kokatha #3 application;
the documents were referred to by Mansfield J in his decision in the Lake Torrens Overlap Proceedings;
the Kokatha and the Barngarla were active parties in the Lake Torrens Overlap Proceedings and each produced one of the expert anthropological reports which is sought to be used, and the authors of those reports participated in the conferences of experts;
if granted leave, they will use only those parts of the documents which are nongender restricted and which concern the ethnographic record informing the conclusions of Mansfield J in the Lake Torrens Overlap Proceedings; and
if granted leave, they will, in the absence of any further order, use the documents only for the purposes of the hearing of the summary judgment application.
White J’s Judgment
Firstly, His Honour noted that the application was subject to both the Harman Undertaking and the documents were the subject of an express order of the Court. The very fact that the restriction order was made suggested that there should be a good reason for departing from the position directed by the Court at that time.
Secondly, White J stated that it was ‘reasonable to infer that Mansfield J was concerned about maintaining, so far as possible, the confidentiality of the documents which one or more of the parties have regarded as confidential or as secret’. His Honour stated that Mansfield J had done this by limiting the dissemination of the material. Given this rationale, White J noted the Court ought to be concerned about interfering with the position which his Honour put in place for that purpose.
White J also considered that the applicants may contemplate using at least some of the documents in a way which may be prejudicial to a party who produced the documents. His Honour noted that although this was not fatal to the application, it was still a pertinent matter.
White J also found that the matters on which the applicants relied in support of their application did not point persuasively to the granting of the application. The applicants only contended that the documents may contain relevant information, not that the documents may be critical to the summary judgment.
Further, His Honour accepted the submission of counsel for the Kokatha that the making available of the material now had the potential to disrupt the preparation for an imminent hearing.
Finally, His Honour stated he would wish to be satisfied that all parties to the Lake Torrens Overlap Proceedings had been notified of the present application and had been given the opportunity to express the view about whether or not the orders sought should be made. His Honour noted the absence of Adnyamathanha People’s attitudes, who were a principal party in the Lake Torrens Overlap Proceeding and had provided one of the six documents. The applicants acknowledged that the Court could not be satisfied that all of the parties had been notified.
His Honour also considered that applications under s 31A FCA are not occasions for detailed evaluations of evidence. White J noted that it was unlikely that the Court would engage, on a summary judgment application, in a detailed evaluation of conflicting evidence with a view to determining the prospects of the Kokatha Claim.
In his conclusion, White J stated that the Court should be careful to uphold the regime it put in place for the protection of confidential and secret information which must often be disclosed in applications for the determination of native title. As such, the Court held that those protections ought not to be readily set aside, undermined or diminished.
It was for these reasons that White J set aside the interlocutory application of the Barngarla and the Nukunu peoples.