This case concerned the possibility of the Court dispensing with the requirements under rule 21.02 of the Federal Court Rules 2011 (Cth) (FCR) that a party must make an application for interrogatories within 14 days. The case also concerned the Court allowing interrogatories to be issued with respect to an interlocutory application.
Background
The interlocutory application was submitted by the Wakaman applicant in regard to the Wakaman #5 claim area in Queensland. The application related to an earlier enjoinder application that sought orders to prevent Preston Law, or alternatively Mr Kempton and Mr Kerr, from acting for a list of pastoral respondents to the native title claim. However, the Wakaman applicant, Mr Kempton, Mr Kerr and Preston Law were not parties to the principal proceedings.
The interrogatories sought to clarify a possible conflict of interest that had arisen in the principal proceedings that would prevent Preston Law from acting for the listed respondents. However, to allow for the interrogatories application to proceed, the Court would need to dispense with the rule 21.02 of the FCR.
Issues
The issues to be determined were:
In determining if the Court should dispense with the requirements under rule 21.02 of the FCR:
Whether the requirement of the Court to protect the due administration of justice was engaged;
Whether the interlocutory application supported the order for interrogatories;
Whether it was relevant that the applicant was a stranger to the retainer of Preston Law and that the respondents were not parties to the principal proceedings.
Whether the interrogatories were relevant to the enjoinder application and did not amount to a breach of legal professional privilege.
Submissions
The Wakaman applicant argued that the Court’s obligation to protect the due administration of justice was engaged as the order of interrogatories that was sought would align with the requirement to resolve disputes as quickly and inexpensively as possible under s 37M of the Federal Court of Australia Act 1976 (Cth).
Mr Kempton and Mr Kerr submitted that the interlocutory application should be dismissed on the basis that the proposed interrogatories were not related to any question of fact or any issue in the principal proceedings. Additionally, it was submitted that the interrogatories were in relation to matters that were protected by legal professional privilege and were therefore objectionable.
Decision
Issue 1(a)
Acknowledging Reeves J’s observations in QGC Pty Limited v Bygrave [2010] FCA 659, Collier J was satisfied that the requirement of the Court to protect the due administration of justice is critically linked to the role of the solicitor. It was acknowledged that this is especially necessary in native title litigation as the litigation costs have been reduced under s 85A of the Native Title Act 1993 (Cth). Given this, Collier J held that the Court’s requirements to protect the due administration of justice was engaged as the possible conflict of interest was in relation to the solicitor.
Issue 1(b)
Collier J held that the Court’s requirement to protect the due administration of justice fell under the Court’s jurisdiction, of which the parties were able to make applications and submissions. Given this, the fact that the interrogatories related to the enjoinder application did not present a barrier to granting leave for interrogation.
Issue 1(c)
Collier J held that it was irrelevant that the Wakaman applicant was a stranger to the retainer of Preston Law as they were still a proper applicant to the enjoinder application. By the same logic it was concluded that the Wakaman applicant was also a proper applicant to the interlocutory application and therefore, Preston Law, Mr Kerr and Mr Kempton were appropriate respondents.
Issue 2
Relying on Bereton J’s observations in Hancock v Rinehart (Privilege) [2016] NSWSC 12, Collier J upheld the conclusion that an assertion of a document being covered by professional privilege does not suffice and must be proven by fact. Given this, Collier J noted that in the absence of such proof on the facts before the Court, a claim of legal professional privilege could only be speculative. Additionally, having analysed each of the interrogatories, Collier J determined that all of the proposed interrogatories were relevant to the enjoinder application and would provide information that would shorten the trial and provide fair proceedings.
Collier J allowed for the dispensing of rule 21.02 and allowed the interlocutory application.