Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3)
[2020] FCA 1143
•11 August 2020
FEDERAL COURT OF AUSTRALIA
Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143
File number(s): VID 737 of 2014 Judge(s): MORTIMER J Date of judgment: 11 August 2020 Catchwords: NATIVE TITLE – interlocutory application – suppression orders sought over expert reports to the Court – proceeding discontinued prior to application – suppression orders made Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG
Native Title Act 1993 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Apple Computer Inc & Ors v Popiolek [1984] VR 156
AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132
Banjima People v State of Western Australia (No 2) [2013] FCA 868
Castle v United States [2018] FCA 1079
Hearne v Street [2008] HCA 36; 235 CLR 125
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
Jango v Northern Territory of Australia [2003] FCA 1230
KBRV Report Operations Pty Ltd v Chilcott [2001] NSWCA 116; 51 NSWLR 516
Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487; 300 ALR 704
Date of hearing: Determined on the papers Date of last submissions: 1 July 2020 Registry: Victoria Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 69 Solicitor for the Interlocutory Applicant: First Nations Legal & Research Services Solicitor for the First Respondent: Victorian Government Solicitor Solicitor for the Fourth Respondent: Jason A Briggs Lawyers Solicitor for the Fifth Respondent: Bunurong Land Council Aboriginal Corporation ORDERS
VID 737 of 2014 BETWEEN: BERYL OLIVE BOOTH, COLLON MULLETT, RUSSELL MULLETT AND WAYNE THORPE ON BEHALF OF THE GUNAIKURNAI NATIVE TITLE CLAIM GROUP
Applicant
AND: STATE OF VICTORIA
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
TELSTRA CORPORATION LIMITED (and others named in the Schedule)
Third Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
11 AUGUST 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground set out in s 37AG(1)(a) of the Act, being that the order is necessary to prevent prejudice to the proper administration of justice:
(a)Until further order, each party and each former or current legal representative of each party to the proceeding:
(i)must not copy, disclose, distribute or otherwise communicate to any non-party, (other than each other and the experts who attended the Second and Third Experts’ Conferences held on 24, 25, 27 and 28 May 2019), the content or findings of the Second and Third Experts’ Conferences, or the Joint Reports to the Court dated 31 May 2019 arising out of the Second and Third Experts’ Conferences; and
(ii)where applicable, are to take all reasonable steps immediately to retrieve any documents or publication of information containing any such disclosures or communications of the kind referred to in Order 1(a)(i); and
(iii)where applicable, are to take all reasonable and available steps to ensure any documents containing any such disclosures or communications of the kind referred to in Order 1(a)(i) are not used or disclosed in any other proceedings in any Court or Tribunal, nor in any other forum, unless that forum is convened solely for the purposes of making decisions or giving instructions about this proceeding, or leave of this Court has been granted to do so.
(b)The Joint Reports to the Court dated 31 May 2019 arising out of the Second and Third Experts’ Conferences Report are to be marked “suppressed” on the electronic court file and are not to be published or accessed except pursuant to an order of the Court.
(c)The Court directs that:
(i)the Registry send a copy of this order by email to the current or last known email addresses for each of the parties’ legal representatives; and
(ii)service as required by r 41.07 of the Federal Court Rules 2011 (Cth) will be taken to be effected by the provision of the orders in the manner set out in order 1(c)(i).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
An interlocutory application has been filed in this proceeding by First Nations Legal and Research Services, in its capacity as a native title service provider performing the functions of a representative body for Victoria under the Native Title Act 1993 (Cth). The underlying native title determination application in this proceeding was discontinued with the consent of the parties (by notice) on 11 September 2019. In the proceeding, lawyers from First Nations Legal acted for the applicant and fifth respondent. The underlying application involved a claim for a determination of native title by the Gunaikurnai People over areas of land and waters broadly encompassing Wilsons Promontory National Park. The fourth and fifth respondents (Dr Carolyn Briggs and Mr Daniel Turnbull respectively) were joined as respondents because each of them contended their interests as members of a different group claiming native title over Wilsons Promontory were affected by the Gunaikurnai claim. On one view then, the Court had before it three competing positions about who were the right people for the Wilsons Promontory area.
Given that position, and as part of the management of this proceeding towards either a contested or agreed outcome, three court-ordered conferences of experts were convened. Each conference was convened on a confidential and without prejudice basis. The first conference of experts took place on 3-4 of September 2018 and the experts participating in that conference produced the First Joint Report to the Court. The Court was subsequently made aware that information disclosed in the report may have been distributed to individuals not party the proceeding. As a result, on 19 September 2018, the Court made suppression and non-disclosure orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) in respect of the first conference of experts and the First Joint Report.
The second and third conferences of experts took place in May 2019, and the experts participating in each conference subsequently produced the Second Joint Report and the Third Joint Report to the Court. On 31 May 2019 the Second and Third Joint Reports were distributed to the parties by email, with the following communication from the Court:
The Court notes that the reports are provided noting the following:
•The reports are to be utilised only for proceeding VID737/2014;
•The reports are not to be distributed beyond the clients of each party nor used for any other purpose without permission from the Court; and
•The reports of the conference of experts and opinions have not been tested in Court and are the outcome of a Court supervised conference of experts process pursuant to orders.
Significantly, her Honour has advised that she hopes to not have to issue suppression orders again, so seeks all parties’ adherence to the above and their duty to the Court.
Although the proceeding was discontinued by consent in September 2019, First Nations Legal now alleges that in April and May 2020 information contained in the Second and Third Joint Reports was disclosed to people not party to the proceeding, through the social media platform Facebook. It was these events which led First Nations Legal to file this interlocutory application on 11 May 2020, seeking further orders under s 37AF over the Second Joint Report and the Third Joint Report, and the expert conferences which produced them.
For the reasons that follow, orders will be made under s 37AF, although not entirely on the basis on which they were implicitly sought.
THE INTERLOCUTORY APPLICATION
The interlocutory application was supported by two affidavits of Anthony Kelly, Chief Executive Officer of First Nations Legal, affirmed 14 May 2020 and 9 June 2020, and an affidavit of the fifth respondent, Daniel James Turnbull. His affidavit, affirmed 18 May 2020, identifies him as the Chief Executive Officer of the Bunurong Land Council Aboriginal Corporation. Both Mr Kelly (in his first affidavit) and Mr Turnbull deposed that information discussed at the second and third expert conferences and in the corresponding reports had been disclosed via a series of Facebook posts and comments by Caroline Briggs-Martin made in April and May 2020. It has not been disputed that Ms Briggs-Martin is the daughter of the Fourth Respondent in this proceeding, and the sister of Jason Briggs, who is the fourth respondent’s solicitor on the record in this proceeding. Images of the Facebook posts and comments are annexed to both Mr Kelly’s first affidavit and Mr Turnbull’s affidavit.
The posts and comments make statements criticising the members and actions of the Bunurong Land Council. Relevantly, one of the comments refers to the findings of “the independent panel of experts approved by the Federal Court” and attributes to the expert panel a unanimous finding “that they [the Bunurong Land Council] have no basis for their claims”. The posts attribute to this Court decisions which were not in fact made, such as:
even after the Federal Courts determination last year, stating through all evidence provided by both us and them that the only people who can claim Boonwurrung Country are those descended from our Boonwurrung Ancestor Louisa Briggs…
Mr Kelly deposes to correspondence to all parties from First Nations Legal, prior to this application being made, informing all parties of its intention to make this interlocutory application.
In its submissions, First Nations Legal highlighted the confidential nature of the expert conferences and the reports they produced. It noted that the reports had been supplied to the parties on the basis that they were not to be disclosed to others, or used for purposes other than the then on‑going proceeding. In the context that the Court had communicated this to the parties and that information from the reports had nonetheless been disclosed, First Nations Legal submits that a suppression order is necessary to ensure the confidentiality of the Second and Third Joint Reports.
First Nations Legal also submits (on the basis of Mr Kelly’s affidavit evidence) that the disclosure of findings from the joint reports to the Court is impacting its ability to discharge its statutory function in respect of the Wilsons Promontory area. Since this proceeding was discontinued, First Nations Legal has been engaged in dispute resolution with representatives of the Bunurong and Boonwurrung communities in pursuit of identifying who may hold native title over Wilsons Promontory. First Nations Legal submits that the Facebook posts have exacerbated existing disputes between those communities. This has had the result, First Nations Legal contends, that people have been less willing to speak with First Nations Legal’s researchers. It is also contended to be likely to hinder any mediation process that may be conducted. Mr Kelly’s evidence in his affidavit affirmed 14 May 2020 is that
divulging and misrepresentation of the content of the First Joint report and/or the Second and Third Joint Reports … is also harmful to the Bunurong/Boonwurrung and impedes the resolution of their native title matters.
And in his affidavit affirmed 9 June 2020 Mr Kelly deposed
(a) the disclosure has inflamed conflict between the Bunurong and Boon Wurrung communities … and
(b) this in turn has resulted in an unwillingness of people who may hold native title in the area the subject of the Research Project to come forward…
Mr Kelly’s second affidavit is largely directed toward explaining the efforts undertaken and progress made by First Nations Legal in the period since the application in this proceeding was discontinued to resolve the ongoing question of how native title should be claimed over the Wilsons Promontory area and by whom. First Nations Legal contends that this ongoing issue provides “an important context” that further justifies the making of suppression orders.
Jurisdiction to hear the application
First Nations Legal submits that the Court has power to make the orders sought under s 37AF of the Federal Court Act.
First Nations Legal relies on KBRV Report Operations Pty Ltd v Chilcott [2001] NSWCA 116; 51 NSWLR 516 (at [40] per Shellar JA, Ipp and Grove AJJA agreeing) and Apple Computer Inc & Ors v Popiolek [1984] VR 156 (at 158-9 per Nicholson J) for the proposition that a proceeding that is discontinued does not cease to exist. They contend that the notice of discontinuance accepted by this Court on 11 September 2019 is no bar to the making of the orders sought.
OTHER SUBMISSIONS IN SUPPORT OF THE APPLICATION
While the applicant did not provide submissions about the interlocutory application, First Nations Legal’s application was also supported by the affidavit of Alexandra Simone McAlpine, a lawyer at First Nations Legal, affirmed on 4 August 2020, some time after it was filed. The Court’s policies about the filing of affidavits during COVID-19 restrictions permitted this to occur. Ms McAlpine deposes that First Nations Legal has also assisted the Gunaikurnai applicant in responding to the interlocutory application, and that she was instructed that the four named members of the Gunaikurnai applicant support the orders sought.
The State of Victoria, the first respondent, provided submissions to the effect that it was content to abide by the decision of the Court and did not oppose the interlocutory application.
As well as providing an affidavit, Mr Turnbull, the fifth respondent, provided submissions in support of First Nations Legal’s application and contended that in the absence of suppression orders, the reports and the information they contained could be “disclosed and used against sections of the Aboriginal community”.
SUBMISSIONS OPPOSING THE APPLICATION
The fourth respondent, Dr Carolyn Briggs, provided submissions opposing the application. Some aspects of her submissions went to matters which I do not consider relevant to the resolution of the interlocutory application. Relevantly however, the essence of her submission is that the evidence provided in support of the application, namely the images of Facebook posts, do not support the claim that the contents of the Second and Third Joint Reports have been disclosed to any individual not party to the proceeding. Specifically, she contends, referring to Mr Kelly’s first affidavit:
(1)The first post exhibited to the affidavit of Mr Kelly refers to an article published in The Age newspaper on 4 April 2020 that was unrelated to Boonwurrung country.
(2)The second post exhibited to the affidavit of Mr Kelly does not disclose the contents of the reports or provide evidence that the author had access to the reports.
(3)The third post exhibited to the affidavit of Mr Kelly does not reference the reports and the information contained in the post about the membership of the Bunurong Land Council is publicly available.
(4)The fourth post exhibited to the affidavit of Mr Kelly appears to be a duplication of the third post.
(5)The fifth post exhibited to the affidavit of Mr Kelly contains personal opinions of the author only and does not contain a reference to the reports or their content.
(6)The sixth and seventh posts exhibited to the affidavit of Mr Kelly do not include any comment on or reference to the reports.
Further, the images of the Facebook posts are undated, and Dr Briggs alleges that the application is motivated by a desire to punish or vilify the Boonwurrung people. It is submitted for Dr Briggs that while First Nations Legal purports to be acting in its capacity as a representative body for Victoria, it acted for the applicant in the underlying proceeding and for Mr Turnbull as the fifth respondent. Her submission implies that this relationship, and existing disputes with the Boonwurrung People and Dr Briggs, have resulted in discriminatory treatment of the Boonwurrung People by First Nations Legal.
Dr Briggs also contends (at [18]-[19] of the submission):
It is irrelevant that Mr Kelly, FNLRS and Mr Turnbull find the comments made on these Facebook posts as subjectively uncomfortable or offensive. The Facebook posts do not divulge the content of the Reports; they merely include opinion and comments that may have been formed by persons attending the Federal Court hearings on June and September 2019 or from other available public records.
Dr Carolyn Briggs AM has provided several examples in her Affidavit, where the information regarding the background to the Bunurong Land Council and their apical ancestors is publicly available.
First Nations Legal is not itself a party to the Gunaikurnai proceeding, and Dr Briggs contends that as a result it has no standing to bring this interlocutory application. Further, Dr Briggs submits that the effect of the notice of discontinuance on the matter is that it may only be reinstated in certain circumstances which are set out in s 13 of the Native Title Act. On her submission, this application does not give rise to any grounds to reopen the proceeding under s 13.
In her affidavit Dr Briggs denies she was the source of any breaches of either of the Court’s orders, or any confidentiality obligations surrounding the experts’ conferences.
A significant proportion of Dr Briggs’ affidavit went to factual matters other than those raised by the interlocutory application. I have not had regard to those other factual assertions.
RESOLUTION
It is appropriate to make some general findings before moving to the necessary findings on the interlocutory application.
The divisions between the fourth and fifth respondents, and the groups and organisations they represent, appear to run deep in Victoria. What has occurred in the Gunaikurnai proceeding, and on this interlocutory application, is but one of many manifestations of that dispute. I accept Dr Briggs and those who support her, for the Boonwurrung, feel a genuine sense of grievance about the way their aspirations to be recognised as traditional owners have been treated. The Boonwurrung have now lodged their own application for a determination of native title, and no doubt that application may mean that there may be further manifestations of this dispute in this Court. However, I also accept that Mr Turnbull genuinely feels under personal attack in his position with the Bunurong Land Council, and because of the work in which he engages on behalf of a group of people (the Bunurong) who identify differently from the Boonwurrung.
It is no part of the Court’s task on this application to take sides in this long running and apparently acrimonious dispute, nor to pass judgment on the particular social media postings which are in evidence. Communications by social media have their advantages and disadvantages. Whatever is said by individuals in such media, once published and if not proactively removed, remains publicly available. That may not be conducive to mature and respectful resolution of differences. On the other hand, individuals in our community are, within the law, entitled to be forthright and passionate about their views, especially when they concern fundamental matters such as identity and connection to country.
These overarching matters are not irrelevant because the Court’s powers to suppress evidence and material used in proceedings is subject to close control and are powers to be exercised cautiously. That is because the primary rule is that the administration of justice is conducted in public: see s 17 and s 37AE of the Federal Court Act. The primary rule encourages appropriate scrutiny of the administration of justice by the Court, transparency of what occurs in proceedings and public access to the evidence and other material upon which the Court exercises its judicial power. In turn, that enables what occurs in proceedings to inform public debate and discussion, reflecting the roles of the different arms of government in a representative democracy. See my previous observations in Castle v United States [2018] FCA 1079 at [16]-[17].
Against the primary rule of open justice must be put more particular considerations which require keeping some evidence or material out of public view: see [35]-[40] below.
The Court’s jurisdiction to hear and determine this application
I accept the submissions of First Nations Legal that the Court has jurisdiction to make orders of the kind sought, notwithstanding the discontinuance of the Gunaikurnai proceeding. As another example, see AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132 at [5]. I am not persuaded the two authorities relied on by First Nations Legal are the closest authorities on point, but it is clear from the Federal Court Act itself that the Court has jurisdiction to make such orders, and that First Nations Legal has standing to apply for them.
Section 37AH(1) of the Federal Court Act provides (with my emphasis):
(1)The Court may make a suppression order or non‑publication order on its own initiative or on the application of:
(a)a party to the proceeding concerned; or
(b)any other person considered by the Court to have a sufficient interest in the making of the order.
Section 37AH(3) provides:
(3)A suppression order or non‑publication order may be made at any time during a proceeding or after a proceeding has concluded.
Standing
I find that First Nations Legal has a sufficient interest in seeking orders under s 37AF. Its role as the Victorian representative body under the Native Title Act means that in the performance of its functions, including its facilitation and representation functions, it has an interest in being able to assure those for whom it performs those functions that information given over in the context of native title proceedings will be properly protected, where appropriate. It has an interest in ensuring it is able to work with different communities, some of whom may be in conflict, and to assure all of them that if they cooperate and participate in court proceedings, their personal information will be treated respectfully and not used for purposes disconnected with the purposes for which those community members divulged the information. If a representative body has the trust of the communities it serves, it will be better able to perform its statutory functions, and likely to perform them in ways which better advance the objectives of the Native Title Act.
Jurisdiction
Section 37AH(3) makes it clear this Court has jurisdiction to make suppression orders in relation to proceedings which have concluded. If that were not the case, the administration of justice could be severely affected, for it is quite possible that issues about particular evidence and its availability may arise, or may change, after the proceeding itself has finished.
That is not to say such orders would be lightly made, and no doubt if a proceeding is finished, such orders may be more difficult to secure in some cases. However, the jurisdiction to make them plainly exists.
The character of evidence and material filed in native title proceedings
It is a feature of native title proceedings that a great deal of highly personal information is relevant to the determination of claims for native title. Peoples’ family histories, which can sometimes involve traumatic events such as acts of sexual violence and removal, become part of the narrative presented to the Court. Genealogies play a large role in such proceedings.
Producing genealogies for Aboriginal and Torres Strait Islander people may mean, because of the history of oppression, violence and dislocation experienced by them after European arrival, that some of this genealogical information reveals matters about people’s families that they would otherwise never share, and would certainly not share with strangers, or with those with whom they may have disputes. On any view, and even if they do not concern this kind of very private information, all genealogical information is personal to the families and individuals concerned; and is not usually the kind of information which would be readily distributed to all and sundry, to be used for whatever purposes anyone wished.
Although not as much of an issue in the current circumstance, it is also a fact of native title proceedings that people must share their traditional law and custom and their stories of connection to country, again doing so with a much wider audience than would usually be the case under those traditional laws and customs. That is the system of proof which the Native Title Act imposes on Aboriginal and Torres Strait Islander Peoples. Much of that evidence and information may be of a character which lends itself to disclosure under open justice principles, and is capable of having an educative effect on those people within the Australian community who know little or nothing about the rich and complex system of traditional law and custom that exists in this country. However, other aspects will require protection, in order to recognise and preserve their character as special knowledge, to which only a limited number of people are privy. These aspects of native title proceedings are well recognised: see for example the comments of Barker J in Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [2033]-[2037] and of Sackville J in Jango v Northern Territory of Australia [2003] FCA 1230 at [56] and [59].
In assessing and determining some aspects of native title proceedings, the Court relies on the participation and knowledge of experts – historians, anthropologists, linguists. These experts can synthesise and analyse sometimes disparate information, and assist the Court in piecing together what are very often broken and disjointed historical and genealogical narratives – broken and disjointed because of the adverse impacts of colonisation on Aboriginal and Torres Strait Islander Peoples. These experts are independent of the parties and their role is to assist the Court. They are bound by a specific code of conduct to act independently and to assist the Court: see Annexure A to this Court’s Expert Evidence Practice Note (GPN-EXPT), the Harmonised Expert Witness Code of Conduct. They are not advocates for any particular party or person; their role is to bring their expertise to bear to assist the Court in understanding evidence that it may not otherwise be able to understand, or piece together; or to assist the Court in drawing together various sources of information and explaining how they might tend to prove or disprove some of the factual matters in issue in a proceeding. Due to their independence, and their expertise, one of the valuable roles such experts perform is to confer together, to try and reach agreement on certain matters, and to isolate and identify areas of disagreement. This process is of great assistance to the parties and the Court in narrowing the issues in dispute. The value of experts’ conferences, in which these discussions between experts occur, cannot be overstated.
The full and frank participation of experts is often encouraged by the knowledge that what they say is to be used only for the purposes of the proceeding and may, at least initially, be undertaken in a confidential setting, so that they may truly speak their minds. Ultimately, some of their reports, or their discussions, may by the choice or conduct of the parties, or a ruling of the Court, become more freely available. But those decisions are very much made in the specific context of a specific proceeding.
These general descriptions and considerations are some of the underlying issues the Court can take into account in making, or deciding not to make, suppression orders under s 37AF of the Federal Court Act.
Whether suppression orders should be made
In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]-[32] the Court said (of the predecessor provision to s 37AF, but the principles remain the same):
As it appears in s 50, ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) ‘the administration of justice’ spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics.
If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 ‘may ... make such order’ is to be understood in this sense.
First Nations Legal submits that
public dissemination of the experts’ conferences and the content of the reports is at odds with the explicitly stated expectation of the Court as to how that material was to be treated by the parties.
That submission can be accepted. Both the orders made in relation to the First Joint Report, and the view of the Court as expressed to the parties in correspondence and during case management hearings, made it clear that the Court expected the parties to abide by the understandings on which the experts conferences had been undertaken, and the reports to the Court prepared.
The s 37AF orders made over the First Joint Report were made in circumstances where it also appeared that the contents of the reports were not being kept confidential. It should be emphasised that although the moving “party” in the Gunaikurnai proceeding was a number of individuals who constituted the native title applicant under s 61 of the Native Title Act, both Mr Turnbull and Dr Briggs were parties in their individual capacity, not in any representative capacity. Their obligations to keep material to themselves and to use it only for the purposes of the proceeding were obligations that bound them as individuals. Aside from their legal representatives, it was not open to them to share any material acquired or to which they had access by reason of them being a party to the proceedings with third parties for purposes unrelated to their role as individual respondents in that proceeding. The same is true of the Gunaikurnai applicant. How these principles apply in relation to the dissemination of information to the claim group which has authorised an applicant to act on its behalf are more difficult questions, but the principles must be capable of application, even with some modification. They are fundamental aspects of adversarial litigation.
Flick J discusses the applicable authorities with his Honour’s customary thoroughness in Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487; 300 ALR 704. At [24], his Honour quotes Hayne, Heydon and Crennan JJ in Hearne v Street [2008] HCA 36; 235 CLR 125 at [96]:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...
Expert reports which are exchanged between the parties, and reports to the Court after expert conferences, occur by reason of Court orders requiring parties to undertake such steps and to exchange such information. They are plainly covered by these principles. That is especially so where they are occurring, as they were in the Gunaikurnai proceeding, alongside a mediation process conducted by Judicial Registrar Daniel.
As Flick J notes (at [26] and earlier in his reasons), these obligations will generally cease once material is adduced into evidence – whether tendered as documents, or read in the form of affidavits. As Flick J also noted at [35], the Court’s rules expressly provide for this shift: see r 20.03 of the Federal Court Rules 2011 (Cth). It is at this point that open justice principles take precedence, the operating assumption being that parties have either made forensic choices, or have had rulings made by the Court, which have led to reliance on certain material in the adversarial context in support of the position taken in public litigation.
The existing s 37AF orders over the First Joint Report were made in a context, and at a time, where the Court apprehended these obligations were not fully understood by the parties, or some of them. They were necessary because the process of the experts providing source material and reports to each other, then engaging jointly with all that material, was still in progress. Recalling the general underlying matters I have set out above, it was essential that those processes be conducted through to their conclusion in the circumstances of confidence which were intended by the Court to be applied to them.
Once that process (and the conferences) were complete, and all three reports were provided to the Court and to the parties, the Gunaikurnai applicant applied for leave to discontinue the proceeding. The affidavit read in support of that application for leave to discontinue established that at least some of the contents of the reports to the Court, if not the reports themselves, had been discussed with Gunaikurnai claim group members.
The application for leave to discontinue was supported by an affidavit of Catherine Clare Wilson of First Nations Legal, affirmed 4 September 2019. Ms Wilson deposed in her affidavit that she wrote to claim group members after the case management hearing on 25 June 2019:
providing an update on:
(a) the outcomes of the Gunaikurnai full group meeting held on 15 June 2019 (enclosing draft minutes of meeting);
(b) the case management hearing held on 25 June 2019;
(c) the orders made by the Court on 25 July 2019 (25 July 2019 Orders); and
(d) the review of the provision of First Nations' facilitation and assistance functions to the Gunaikurnai under s 2038B of the Native Title Act 1993 (Cth) to be conducted by Mr Tony Kelly, Chief Executive Officer of First Nations.
She then deposed:
In that letter, I advised that reports from the second and third conferences of experts were available for inspection at First Nations' offices in North Melbourne.
She did not depose to whether any member of the Gunaikurnai claim group inspected the reports to the Court. However, Ms Wilson then deposed to a Gunaikurnai full group meeting occurring on 24 August 2019, at which the following resolution was passed by majority vote:
"Whilst the Gunaikurnai full group do not accept and have not an opportunity to interrogate the findings of the second conference of experts, they respect the role and responsibilities of the Federal Court under the Native Title Act 1993 (Cth), and accordingly instruct First Nations to seek the consent of other parties and seek leave to withdraw the current claim over Wilsons Prom.
This is to enable the Gunaikurnai to:
• undertake further research as to the spiritual and cultural connection to the land and waters of Wilsons Prom; and
• participate in any dispute resolution process to realise a joint vision and aspirations for Wilsons Prom."
In my opinion it is clear that at least to some extent the content of the reports to the Court has been discussed with, or between, Gunaikurnai claim group members. That is not to suggest there is anything contrary to the principles I have set out above in that occurring: as I have noted, the way these principles must be applied in native title proceedings is difficult, and requires some realistic modification of the operation of the constraints explained in Hearne. However, what is important is that the purpose of those discussions was to enable the claim group to discuss, in an informed way, what should occur in relation to the Gunaikurnai proceeding: that is, I emphasise, the discussion of the information was plainly for a purpose central to the conduct of the proceeding. The fact the information needed to be discussed with a group simply reflects the character of a native title claim. The Gunaikurnai applicant acted in a representative capacity, and obviously the information in the reports needed to be shared to some extent with the claim group so as to enable them to make an informed decision, and to discuss the matter with their lawyers.
First Nations Legal did not distribute the reports themselves, as Ms Wilson’s affidavit makes clear, but arranged for them to be available for the claim group members to view. That does not mean, of course, that claim group members were free to pass information from the reports to the Court on to whomsoever they pleased. However it is also important to acknowledge the practical realities facing claim group members – for example the possible need to discuss matters with other claim group members who were not present at the meeting. If that occurred between and amongst claim group members, it was for the purpose of deciding what to do with the (then) existing Gunaikurnai proceeding.
In contrast, Mr Turnbull and Dr Briggs were not parties in any representative capacity; they were parties as individuals. Strictly, it was not open to them to share the information they had gained through reading the reports to the Court, or through discussions with their experts who attended the conference, with anyone but their legal representatives and their own experts, without risking contravention of the rules explained in Hearne and in detail by Flick J in Plate Glass Holdings. Each may have felt that they would like to discuss the information with those who support them and share their views, and perhaps this occurred. The Court has no evidence to that effect, but human experience might suggest it is not improbable. The Court makes no finding on this matter.
There is no evidence at all before the Court that any party distributed copies of any of the First Joint Report, the Second Joint Report or the Third Joint Report to any third parties. That would be a clear contravention of a party’s obligations. In relation to the First Joint Report, it would be a clear contravention of the Court’s orders under s 37AF of the Federal Court Act. The most that is suggested is that some of the contents of one or more of the reports to the Court, or perhaps some of the contents of one or more of the experts’ conferences, have been disseminated or disclosed outside the parties to the proceeding, and outside the Gunaikurnai claim group.
There is a coyness about the submissions and evidence, which is in effect “called out” by Dr Briggs’ affidavit and submissions. When Mr Turnbull speaks of the reports being used for “any unauthorised purpose or intentional mischief” and deposes that “I really do worry about how the materials currently held by the Court and parties will be further misused”, the inescapable inference is that he speaks of how he apprehends Dr Briggs (or, perhaps, her son Jason Briggs who is her legal representative) will “misuse”, or has already “misused” the material.
In other words, in the context of this application, what is really at play is that two parties (Mr Turnbull, actively, and the Gunaikurnai applicant more passively), and the representative body, are contending that another party (Dr Briggs) is not respecting her legal obligations as I have described them. Even more seriously, they may be contending that her son, who has additional legal obligations to this Court as an officer of this Court, is not respecting his legal obligations. Both Dr Briggs and Jason Briggs (by an affidavit filed on this application) strenuously deny any such suggestions.
All parties were content for this matter to be dealt with on the papers. No party, nor First Nations Legal, sought to cross examine any deponent. It is a serious matter to swear or affirm an affidavit. There are criminal penalties for false evidence. On the present state of the evidence, and in the absence of cross examination, I cannot and do not assume or find that either Dr Briggs or Jason Briggs have given false evidence. Their denials on affidavit should be accepted.
In my opinion there is an insufficient evidentiary base for the making of the orders sought because of any conduct of a party, or of a third party, since the reports became available. It is far from clear how the statements made on social media came to be made, or what the sources of those statements might be. Some of them are wildly inaccurate – for example, this Court made no “determination” about who were the right people for Wilsons Promontory.
It is true that one of the statements – namely “the independent panel of experts approved by the Federal Court, unanimously found that they [the Bunurong Land Council] have no basis for their claims” – purports to be connected to the expert conference process. Nothing in these reasons should be taken as either confirming or denying the accuracy of that assertion. However, on the evidence it is impossible to know how Caroline Briggs-Martin (who I find is the author of this statement) came by the basis for what she says. The Court is apparently asked to infer that it was from her mother, Dr Briggs, who passed on the basis for this information, although no party has in fact expressly made that allegation in their submissions. This is part of the coyness to which I have referred. Dr Briggs has, in substance, denied so doing.
What the Court sees in the evidence relied upon is a series of somewhat disrespectful and insulting accusations made on social media in the context of a long running and divisive dispute between two groups competing for recognition as traditional owners of certain country, and/or for recognition as the “right” people to be consulted about heritage and related matters. Social media is replete with disrespect and insult; that is one of its unattractive features. Whether the law of defamation does or does not have anything to say about those comments is not a matter for this Court. Nor can this Court’s powers be used as any kind of supplement or softer replacement for other avenues of redress. I am not to be taken to be suggesting that First Nations Legal has brought the application for any such purpose.
Recalling that orders under s 37AF must be, in accordance with s 37AG(1)(a), “necessary” to prevent prejudice to the proper administration of justice, and not simply “convenient, reasonable or sensible, or to serve some notion of the public interest”, the question here is whether the kinds of considerations to which I have referred at [35] to [40] above require such orders. It can no longer be the case, as it was when the existing s 37AF orders over the First Joint Report were made, that the administration of justice within this particular proceeding is prejudiced. Rather, it is wider interests of justice which must now be invoked.
It is the case that a new application for a determination of native title has been filed with the Court by an applicant constituted by Dr Carolyn Briggs and Ms Sylvia Muir, on behalf of the Boonwurrung People claim group in proceeding VID363/2020. That application remains in the notification period with the National Native Title Tribunal, and no registration decision has been made. The application covers Wilsons Promontory, amongst other areas of land and waters. It is the case that the resolution passed by the Gunaikurnai claim group, to which I have referred above, recorded that the group did not necessarily accept the contents of the Second Joint Report. The position of Mr Turnbull, and the Bunurong Land Council, presents a third dimension.
In other words, disputes over who are the right people for Wilsons Promontory are not resolved. Those disputes are now before this Court again, by reason of the Boonwurrung application. The considerations to which I have referred above, and the confidence which individuals and claim group members need to be able to have in the integrity of the Court’s processes when it deals with a native title claim, remain relevant and applicable. In particular, creative and cost effective processes such as those which led to the three joint experts’ conferences are to be encouraged: they assist parties in having access to carefully considered opinions which bear on the claims in a proceeding before the Court. Those processes should not be at risk of being undermined, especially when it is possible that they, or similar processes, may be invoked again in the context of a new proceeding. Those in communities affected by these disputes need to understand the boundaries of dealing with information which is placed before a Court in a proceeding, and must respect those boundaries.
In order to protect the likely processes which will be undertaken in the new proceeding, and to assure those who might participate (whether as lay witnesses or experts) that information provided in confidence will be protected at least to the point of any decision to adduce that information as evidence at trial, I am satisfied that it is necessary for the Court to make that position crystal clear by further orders, contravention of which is punishable by prosecution for contempt and ultimately by imprisonment if a person is found guilty of contempt of court. It is not simply desirable, or convenient. It is necessary. The ugliness of the ongoing disputes between various competing claimants means there is an appreciable risk that persons who may be asked to provide information, or to participate as experts, will otherwise have some reluctance to do so. That will not advance the just resolution of any future proceedings involving these groups, including the current Boonwurrung proceeding.
It should also be noted that even without such orders, the parties remain bound by what is often called “the implied undertaking” (see Plate Glass Holdings, Flick J at [24]ff) as to the use they may (and may not) put the three Joint Reports, and their contents. If they wish to use those reports, or materials produced for the experts’ conferences, for other purposes, they will have to seek to be relieved from those obligations by an application to this Court – there is no prospect those obligations will be lifted by the tender of any of this material, the proceeding having been discontinued. See generally Plate Glass Holdings at [29]-[34].
CONCLUSION
The orders sought on the interlocutory application will, with some modifications, be made. I am satisfied that the ancillary orders can be made under s 37AF(2), and are appropriate to be made, in order to ensure the effectiveness of the primary suppression order.
No costs were sought in the interlocutory application. The only party who made submissions about costs was Dr Briggs, who sought an order for costs if the application was dismissed. The application has not been dismissed. There was a sufficient basis for the application to be brought, and it has been successful, albeit for reasons different to those advanced by First Nations Legal, supported by Mr Turnbull and the Gunaikurnai applicant. In those circumstances, it is appropriate that each party, and First Nations Legal, bear their own costs of the interlocutory application. For similar reasons, I do not consider it is appropriate to make orders for removal of any affidavit material from the Court’s file, as Dr Briggs also contended. There was contentious material in all the affidavits, another indication of the depth of the dispute to which I have referred in these reasons.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 11 August 2020
SCHEDULE OF PARTIES
VID 737 of 2014 Respondents
Fourth Respondent:
DR CAROLYN MARIA BRIGGS
Fifth Respondent:
MR DANIEL JAMES TURNBULL
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