Griffiths J
In this matter, Griffiths J upheld an interlocutory application by the Katherine Families Claim applicant to restrain the Jawoyn claimants from engaging or obtaining information from Mr Levy in the Katherine Proceeding native title determination. This was ordered on the basis of legal professional privilege. The parties were also ordered to seek a consent determination in relation to the Jawoyn Claim application for summary dismissal of the Katherine Families Claim.
The two claims, the Jawoyn Claim and the Katherine Families Claim, were overlapping native title claims in relation to the town of Katherine. The Jawoyn Claim was heard as Lisa Mumbin v Northern Territory of Australia 2017, and the Katherine Families Claim as Joshua Hunter v Northern Territory of Australia 2018. In November 2019, the claims were ordered to be heard together as the “Katherine Proceeding”. In December 2019, the Jawoyn Claim sought the summary dismissal of Katherine Families Claim.
Background
The Katherine Families Claim has a long history, beginning in 1999, on behalf of the Dagoman People. On 13 March 2018, the original claim was discontinued upon instruction from the claimants to their representative body, the Northern Land Council (NLC). A new claim over the same area was made by the applicants the following day which included changes to the listed apical ancestors, but submitted on the same basis as Dagoman People. Mr Levy acted for the original Katherine applicants from 2000-2014 as a lawyer at the NLC. He became their named solicitor for address for service and variously appearing in court on their behalf. In 2014, he filed a notice to cease acting for the Katherine Families Claim. By 2018, Mr Levy was acting for the competing Jawoyn Claim.
In 2019, the Katherine Families Claim filed for Mr Levy’s removal from the proceedings on the basis that Mr Levy’s engagement with the Jawoyn Claim risks misuse of confidential information relating to the original claim and raises a conflict of interest.
The Jawoyn Claim applicants objected on the basis that the new Katherine Families Claim was a different group, and that statements made by a Katherine Families Claim solicitor inferred privilege was waived in regard to Mr Levy’s retainer for the Jawoyn Claim. The Jawoyn Claim applicants also submitted the court should deny the application due to its delay, and damage that would be incurred in losing their counsel.
Decision
Justice Griffiths relied on Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551, to determine that the applicant as a collective entity has client privilege in native title cases. Anthropological evidence provided in the original Katherine Claim group was substantially the same, and hence the Katherine Families Claim were held to possess client privilege for the earlier discontinued proceedings. Further, few original applicants expressed permission for Mr Levy’s engagement for the Jawoyn Claim. However, Griffiths J held that the Katherine Families Claimants had not waived any entitlement to object to Mr Levy’s retainer.
As it was evident Mr Levy was acting against the Katherine Families Claim, but was previously substantially involved in their original claim, his honour found there was a real risk of misuse of confidential information and conflict. Although an exceptional disqualification, it was deemed in necessary to restrain Mr Levy’s engagement with the Jawoyn Claim.
Delay was accepted to be sufficiently explained due to internal instability within the NLC, including staff turnover and tensions, and the fact that the extent of Mr Levy’s role with the Jawoyn Claim only became evident in November 2019. Further, Griffiths J did not hold there was a sufficiently significant prejudice able to be proven in the Jawoyn claimants finding new counsel. It was accepted that the Jawoyn claimants would have developed a ‘degree of trust and confidence’ with Mr Levy. However, his honour found no evidence of a ‘longstanding professional relationship’ necessary to cause prejudice, given Mr Levy only acted for an interlocutory application