Katzmann J
Introduction
In this case Glencore Coal Pty Limited (Glencore) applied for leave to use an expert report (the Sackett report) that had been filed in another proceeding. The purpose was to respond to an application made by the respondents under s 10 of the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth). The Sackett report was produced pursuant to a court order, but was not tendered in the proceeding. Without a court order in this instance, Glencore would be precluded by the Harman undertaking from using the Sackett report or the information it contained for any purpose unrelated to the earlier proceeding.
Harman undertaking
A party who obtains documents or information through the process of discovery is subject to an implied undertaking not to make use of them or it for a collateral purpose. This undertaking, generally known as the Harman undertaking, from Harman v Secretary of State for the Home Department [1983] 1 AC 280, 313, binds not only the parties and their lawyers, but also others to whom the documents are given. The implied undertaking is subject to the qualification that, once the material is adduced in evidence in court proceedings, it goes into the public domain unless the court restrains its publication. The court may release a party from the undertaking if the party can show ‘special circumstances’.
Submissions
Glencore submitted that the Sackett report was plainly relevant to the s 10 application in that it went to the question of whether the oral histories relied upon were reliable source of information. The respondent (Franks) contended that the Sackett report was never read into court or tested in open court, and that it contained numerous inaccuracies that would cause substantial damage to various First Nations communities.
Reasons for decision
His Honour found that, had the proceeding which the Sackett report was commissioned for gone ahead, it was likely that it would have been admitted into evidence and therefore entered the public domain. He also found that the native title proceeding and the s 10 application had some common features and the common interest Glencore had in them.
However, he went on to note the contents of the Sackett report were clearly sensitive and controversial. Additionally, Glencore’s application for leave was made within days of the deadline for representations, making it impossible for Franks to provide cogent evidence to support their claims. The potential for unfairness or prejudice and the delay in making the application bore heavily upon the exercise of the court’s discretion in this instance. His Honour concluded it was unlikely that the Sackett report could affect the weight given to Associate Professor Draper’s report being used in this case.
Finally, the issues for determination on the s 10 application were different from the issues considered by Dr Sackett, namely, the applicants did not have be native title holders or claimants in order to bring the application. As a result, His Honour considered it unlikely that the grant of leave to use the report would make any contribution to the achievement of justice in this instance.
Conclusion
For the above reasons, His Honour concluded that, on the balance of probabilities, Glencore had not established the existence of special circumstances or that it was in the interests of justice to grant Glencore’s application.