Booth on behalf the Gunaikurnai People Claim Group v State of Victoria
[2022] FCA 1395
•23 November 2022
FEDERAL COURT OF AUSTRALIA
Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395
File numbers: VID 363 of 2020
VID 737 of 2014
Judgment of: MURPHY J Date of judgment: 23 November 2022 Catchwords: PRACTICE AND PROCEDURE – application for variation of suppression orders – application for release from Harman undertaking – where materials and information produced in Court-ordered experts’ conferences and joint experts’ reports arising from the conferences in a now discontinued proceeding are subject to suppression and non-publication orders – where the suppressed material is likely to be relevant in a subsequent proceeding which involves many of the same parties as the proceeding in which the suppression orders were made– where some of the parties, their legal representatives and expert witnesses in the subsequent proceeding are privy to the suppressed materials and others are not – consideration of procedural fairness and the interests of justice – applications allowed. Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Native Title Act 1993 (Cth)
Cases cited: Banjima People v State of Western Australia (No 2) [2013] FCA 868
Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 641
Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576
Jango v Northern Territory of Australia [2003] FCA 1230
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283
Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144
Division: General Division Registry: Victoria National Practice Area: Native Title Number of paragraphs: 67 Date of hearing: Determined on the papers Date of last submission/s: 22 July 2022 Counsel for the applicants in VID 363 of 2020: Mr R Levy Solicitor for the applicants in VID 363 of 2020: Massar Briggs Law Counsel for the third, eighteenth, nineteenth and twentieth respondents in VID 363 of 2020: Ms A M Sheehan Solicitor for the third, eighteenth, nineteenth and twentieth respondents in VID 363 of 2020: Slater & Gordon Lawyers Solicitor for the Gunaikurnai applicants in VID 363 of 2020: First Nations Legal and Research Services Solicitor for the fifth and twenty fourth respondents in VID 363 of 2020: Marrawah Law Counsel for the eighth, ninth and tenth respondents in VID 363 of 2020: Mr C Athanasiou Solicitor for the eighth, ninth and tenth respondents in VID 363 of 2020: Bunurong Land Council Aboriginal Corporation (ICN: 3630) 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 (and others named in the Schedule)
First Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
23 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The parties in this proceeding, their legal representatives, and expert witnesses, be released from their implied Harman undertaking in respect of materials and information produced or disclosed in the Experts’ Conferences and contained in the Joint Reports to the Court arising from the conferences, and they are permitted to use such materials and information for the purposes of Briggs on behalf of the Boonwurrung People v State of Victoria & Ors, proceeding VID 363 of 2020.
2.The orders made on 19 September 2018 be varied to include the following paragraphs:
1A.Notwithstanding Order 1, these orders do not prevent a party to this proceeding from copying, disclosing, distributing or communicating the content of the Experts’ Conference held on 3 and 4 September 2018 and the contents of the Joint Report filed on 10 September 2018, to:
(a)any of the following parties in proceeding VID363 of 2020, for the purposes of that proceeding;
(i)the Applicant, Dr Carolyn Briggs and Sylvia Muir on behalf of the Boonwurrung People;
(ii)the First Respondent, the State of Victoria;
(iii)the Second Respondent, the Commonwealth of Australia;
(iv)Robert Ogden, Tasma Walton, Jarrod West and the Bunurong Land Council Aboriginal Corporation (the Bunurong respondents);
(v)Russell Mullett, Troy McDonald and Pauline Mullett (the Gunaikurnai/Kurnai respondents); and
(vi)Margaret Gardiner, Ronald Jones, Perry Wandin and the Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation (the Wurundjeri Woi Wurrung respondents);
(b)those parties’ legal representatives in proceeding VID 363 of 2020 for the purposes of that proceeding; and
(c)any anthropologist or other relevant expert engaged by those parties strictly for the purposes of their briefing such anthropologist or expert to engage in experts’ conferences or provide a report in proceeding VID 363 of 2020.
1BFor the avoidance of doubt, Order 1 applies to any person who uses, views or receives a copy of the materials or information referred to for the purposes set out in Order 1A as though the reference to “the proceeding” in Order 1 includes a reference to proceeding VID 363 of 2020.
3.The orders made on 11 August 2020, as amended on 6 April 2021, be varied to include the following paragraphs:
1CNotwithstanding Orders 1, 1A and 1B, these orders do not prevent a party to this proceeding from copying and disclosing, distributing or communicating the content of the Second and Third Experts' Conferences held on 24, 25, 27 and 28 May 2019 and the content of the Joint Reports filed 31 May 2019, to:
(a)any of the following parties in proceeding VID 363 of 2020, for the purposes of that proceeding;
(i)the Applicant;
(ii)the State of Victoria;
(iii)the Commonwealth of Australia;
(iv)the Bunurong respondents;
(v)the Gunaikurnai/Kurnai respondents; and
(vi)the Wurundjeri Woi Wurrung respondents;
(b)those parties’ legal representatives in proceeding VID 363 of 2020 for the purposes of that proceeding; and
(c)an anthropologist or relevant expert engaged by those parties for the purposes of briefing such anthropologist or expert to engage in experts’ conferences or provide a report in proceeding VID 363 of 2020
1DFor the avoidance of doubt, Order 1(a) applies to any person who uses, views or receives a copy of the materials or information referred to for the purposes set out in Order 1C as though the reference to “the proceeding” in Order 1(a) includes a reference to VID 363 of 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
Before the Court is an application in which the applicant in proceeding VID 363 of 2020, Dr Carolyn Briggs AM and Sylvia Muir on behalf of the Boonwurrung People (the Boonwurrung applicant) and some of the indigenous and non-indigenous respondents in the proceeding seek orders to vary suppression and non-publication orders (suppression orders) made in a application for a native title determination by the Gunaikurnai People, Gunaikurnai People Native Title Group & Ors v State of Victoria & Ors, proceeding VID 737 of 2014, which was discontinued in 2019 (the Withdrawn Gunaikurnai Application). The application is opposed by Collon Mullett, Russell Mullett and Wayne Thorpe three of the four named applicants in the Withdrawn Gunaikurnai Application (the Gunaikurnai applicant), and by Russell Mullett and Troy McDonald, both Gunaikurnai people, who are respondents in VID 363 of 2020 (the Gunaikurnai respondents).
Proceeding VID 363 of 2020 is a native title determination application in relation to a broad swathe of land and waters in Victoria (the Boonwurrung application), which takes in the general Melbourne region including part of the city of Melbourne, extending from Werribee and Melton in the north-west the Mornington Peninsula including Point Nepean, part of Port Philip Bay, Western Port Bay including Phillip Island and other islands, Dandenong, Frankston, Korumburra, Leongatha, Inverloch, to Wilsons Promontory in the south-east, and adjoining coastal waters extending to three nautical miles (Boonwurrung claim area).
Relevantly, the respondents to the Boonwurrung application are the State of Victoria, the Commonwealth of Australia, and four groups of indigenous respondents who oppose the application because they assert that they, not the Boonwurrung People, hold traditional rights and interests in different parts of the Boonwurrung claim area. The indigenous respondents are:
(a)Russell Mullett and Troy McDonald, the Gunaikurnai respondents referred to above, being Gunaikurnai people who assert traditional rights and interests in relation to the land and coastal waters of Wilsons Promontory, and Pauline Mullett, a Kurnai person who asserts traditional rights and interests in relation to the same area and also extending north to the northern boundary of the Boonwurrung claim area (collectively the Gunaikurnai/Kurnai respondents);
(b)Robert Ogden, Tasma Walton, Jarrod West and the Bunurong Land Council Aboriginal Corporation, being Bunurong persons who assert traditional rights and interests in a large part of the Boonwurrung claim area, (the Bunurong respondents);
(c)Margaret Gardiner, Ronald Jones, Perry Wandin and the Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation, being Wurundjeri Woi Wurrung persons who assert traditional rights and interests in the northern part of the Boonwurrung claim area (the Wurundjeri Woi Wurrung respondents); and
(d)Terance Rangi, Shannen Mennen, Ernest Kinsey, Felicity Polley, Lee Hartman, Patrick Fagan and Sean Fagan, being Wadawurrung people who assert traditional rights and interests in the waters of Port Philip Bay within the Boonwurrung claim area (the Wadawurrung respondents).
“Attachment A” to these reasons is a map showing the Boonwurrung claim area and the areas of interest asserted by the indigenous respondents.
In 2010 the Gunaikurnai People obtained a native title determination over country in Gippsland, from the eastern boundary of the Boonwurrung claim area: see Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144. Then, in proceeding VID 737 of 2014 Beryl Booth, Collon Mullett, Russell Mullett and Wayne Thorpe on behalf of the Gunaikurnai People Native Title Claim Group sought a determination of native title in relation to the land and coastal waters of Wilsons Promontory. They discontinued that application in 2019 following a series of Court-ordered experts’ conferences and joint reports to the Court.
The question as to which Aboriginal group, if any, are the correct Aboriginal people for the land and coastal waters of Wilsons Promontory was central in the Withdrawn Gunaikurnai Application, and it is again a hotly contested issue in the Boonwurrung application.
THE SUPPRESSION ORDERS
Relevantly, the Withdrawn Gunaikurnai Application involved three Aboriginal groups, the Gunaikurnai, Boonwurrung and Bunurong groups, who each asserted traditional rights and interests in relation to the area of or around Wilsons Promontory.
On 19 September 2018 and then on 11 August 2020, Mortimer J made suppression and non-publication orders in respect to three Court-ordered experts’ conferences (Experts’ Conferences) and three joint experts’ reports arising from the conferences that were filed with the Court (Joint Reports).
In Booth on behalf of the Gunaikurnai People Claim Group v State of Victoria (No 3) [2020] FCA 1143 at [2]-[3] her Honour explained the Experts’ Conferences and Joint Reports, and the background to suppression orders her Honour made in September 2018 as follows:
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.
(Emphasis added)
As it eventuated her Honour was later requested to make further suppression orders. The Withdrawn Gunaikurnai Application was discontinued in September 2019, and on 11 May 2020 First Nations Legal & Research Services filed an interlocutory application in the Withdrawn Gunaikurnai Application, doing so 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) (Native Title Act). In supporting affidavits the deponents stated that information produced in the Second and Third Experts’ Conferences and contained in the Second and Third Joint Reports had been publicly disclosed by Caroline Briggs-Martin in a series of Facebook posts and comments. Ms Briggs-Martin is the daughter of Dr Briggs (who was a respondent in the proceeding), and the sister of Jason Briggs (who was the solicitor for Dr Briggs in the proceeding). In Booth at [7] Mortimer J explained that:
[t]he 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…
First Nations Legal sought to highlight the confidential nature of the material produced in the First and Second Experts’ Conferences and Joint Reports, and 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 (at the time of provision) on-going Gunaikurnai application. It contended that the Facebook posts had exacerbated existing disputes between the Bunurong and Boonwurrung communities, and was prejudicing attempts to identify and mediate which group may hold native title in relation to the Wilsons Promontory area. It submitted that a suppression order was necessary to protect the confidentiality of the Second and Third Joint Reports.
Dr Briggs denied that she was the source of any breach of the Court’s orders or of any confidentiality obligations surrounding the Experts’ Conferences, as did Jason Briggs. Neither were cross-examined. On the evidence as it was, her Honour accepted their denials: Booth at [22], [58]-[59]. Dr Briggs further argued that the affidavit evidence adduced in support of the application did not support the contention that any content of the Second and Third Joint Reports had been disclosed to any individual who was not party to that proceeding and were merely opinion and comments that may have been formed by persons attending the Court hearings or from other available public records: Booth at [18]-[20].
Her Honour characterised the comments on social media as “wildly inaccurate”, and at [62] as:
…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.
However, she said it was far from clear how the statements made on social media came to be made, or what the sources of those statements might be: Booth at [60]. Mortimer J was not satisfied that there was sufficient evidence for making the suppression orders sought because of the conduct of a party or of a third party since the Second and Third Joint Reports became available.
Her Honour however noted that the Boonwurrung application (proceeding VID 363 of 2020) had recently been commenced and that it included a claim in relation to the land and coastal waters of Wilsons Promontory. She noted that the Gunaikurnai people did not necessarily accept the contents of the Second Joint Report; that the position taken by the Bunurong respondents in VID 737 of 2014 represented a third dimension in the dispute in relation to who are the right people for the Wilsons Promontory area, which was not resolved (Booth at [64]), and said that question would need to be decided in the new Boonwurrung application.
In those circumstances, her Honour said that it was appropriate to make further suppression orders because the Boonwurrung application would continue the dispute in relation to the Wilsons Promontory area, and because individuals and claim group members in the new proceeding needed to be able to have confidence in the integrity of the Court’s processes. Her Honour considered it necessary to make the suppression orders to protect the administration of justice so as to ensure that Court processes, such as those which led to the Experts’ Conferences and Joint Reports, would not be undermined. In her Honour’s view, unless further suppression orders were made there was an appreciable risk that persons who may be asked to provide information or to participate as experts in the Boonwurrung application would have some reluctance to do so: Booth at [66].
On 11 August 2020, her Honour made the following orders:
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.
…
On 6 April 2021, Mortimer J made orders to vary the suppression orders made on 11 August 2020 so that they did not prevent any of the parties in the Withdrawn Gunaikurnai Application from using the anthropological and historical materials which they had either commissioned or had prepared for them in respect of the Second and Third Experts’ Conference for another purpose, but they remained prevented from copying, communicating or publishing material that was prepared for or had been commissioned by another party.
THE APPLICATION TO VARY THE SUPPRESSION ORDERS
The Boonwurrung applicant submits that the materials and information in the Experts’ Conferences (which they incorrectly described as a mediation) and the Joint Reports in the Withdrawn Gunaikurnai Application are relevant to issues arising in the Boonwurrung application. It argues that the suppression orders give rise to unfairness in the Boonwurrung application because some parties in the application, some of their legal representatives, and some of their expert witnesses have access to the material and information from the Experts' Conferences and Joint Reports through their involvement in the Withdrawn Gunaikurnai Application, whereas others do not. Further, they contend that those parties that have had access to the suppressed material through their involvement in the Withdrawn Gunaikurnai Application, are prevented from using it in the Boonwurrung application even though it is highly relevant. They seek variation of the suppression orders so as to allow the parties in the Withdrawn Gunaikurnai Application to copy and communicate that material to identified parties in the Boonwurrung application, their legal representatives, and their expert witnesses, to be used for the legitimate purposes of the Boonwurrung application.
On 25 February 2022, Mortimer J ordered the applicants in the Boonwurrung application, the State and any other respondent that contended it was affected by the suppression orders in the Withdrawn Gunaikurnai Application to: (a) consult with the applicant and/or their legal representatives in the Withdrawn Gunaikurnai Application; (b) propose any amendments they seek to the suppression orders to enable specified parties and their legal representatives in the Boonwurrung application to access material covered by the suppression orders; and (c) to file any proposed orders to vary the suppression orders and serve them on all respondents to the Boonwurrung application. The parties consulted but they were unable to reach any agreement.
On 24 June 2022, I proposed draft orders to vary the suppression orders (Proposed Orders) to the parties and directed any party who wished to oppose the Proposed Orders to file and serve any written submissions upon which they wished to rely, and then for those in favour of variation to serve submissions in response.
POWER
As Mortimer J concluded in Booth at [29]-[31], the Court has power to make suppression orders in the Withdrawn Gunaikurnai Application notwithstanding that the proceeding was discontinued in 2019. Section 37AH(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that “[a] suppression order or non‑publication order may be made at any time during a proceeding or after a proceeding has concluded” (emphasis added). In my view, the same is true in relation to variation of existing suppression orders.
THE PARTIES’ SUBMISSIONS
The Boonwurrung applicant
In summary, the Boonwurrung applicant submits that it is fundamental to the fair conduct and just resolution of the Boonwurrung application that all parties to the proceeding have access to any documents filed or generated in relation to the Experts’ Conferences in the Withdrawn Gunaikurnai Application. They contend that unless the suppression orders are varied, some parties in the proceeding, and some of their legal advisers and expert witnesses, will be apprised of information which is relevant to the disputes in the Boonwurrung application, while other parties in the proceeding, their legal advisers and expert witnesses will not. They argue that would be a breach of procedural fairness.
The State and the Commonwealth
The State did not file submissions but it filed draft minutes of orders which propose variation of the suppression orders so that the Boonwurrung applicant, the State, the Commonwealth, and the Gunaikurnai respondents would no longer be prevented from using the findings of the Second and Third Experts’ Conferences for the purposes of the Boonwurrung application, but the balance of the indigenous respondents in the proceeding would continue to be prevented from having access to that material and from using such material for such purposes . The State seeks to be able to use only the findings of the Second and Third Experts’ Conferences; it does not seek to be able to use the findings of the First Experts’ Conference. The Commonwealth takes the same position.
The Wurundjeri Woi Wurrung respondents
The Wurundjeri Woi Wurrung respondents filed brief submissions in which they contend that the information in the Joint Reports is likely to go beyond a mere “boundary dispute” and is likely to be relevant to the Boonwurrung applicant’s case throughout the Boonwurrung claim area. They seek variation of the suppression orders so as to permit them to have access to any documents filed or generated in relation to the Experts’ Conferences in the Withdrawn Gunaikurnai Application, and to be able to use them for the purposes of the Boonwurrung application. They consent to orders redacting from their copy of the material provided any personal or genealogical material of the Gunaikurnai parties and those they represent.
The Bunurong respondents
The Bunurong respondents filed brief submissions in which they contend that it would be unfair for some parties in the Boonwurrung application to have access to and be able to utilise the information in the Joint Reports for the purposes of that proceeding while other parties do not have access to it, or are prevented from using it.
The applicant in the Withdrawn Gunaikurnai Application
Three members of the Gunaikurnai applicant, Collon Mullet, Russell Mullet and Wayne Thorpe, filed written submissions in the application. The fourth member, Beryl Booth, was unwell at the time and did not.
The Gunaikurnai applicant submits that the onus of persuading Mortimer J to make the suppression orders in the first place was “a very heavy one”, and that her Honour must have decided that the orders were “necessary” to prevent prejudice to the administration of justice. As noted in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 641 at [30], they say that “necessary” is a strong word. It contends that her Honour accepted that suppression orders made in respect of a finalised proceeding would not “be lightly made” (at [34]), yet made the suppression orders on the basis that in the “wider interests of justice” they were necessary so that the witnesses and experts would have the necessary confidence to participate in future conferences, or similar processes, including in the Boonwurrung application.
It argues that the suppression orders reflect the fact that the information provided by those people who were interviewed as part of the research processes that informed the Experts’ Conferences and put forward by the parties to those conferences, was advanced on the basis that the information would be used in a confidential manner and “without prejudice”. It says that it was not contemplated by the parties that the information would be used in another proceeding or for another purpose. On this argument, varying the suppression orders risks individuals, claim group members, lay witnesses and experts, both in the Boonwurrung application and in other native title proceedings, being reluctant to participate in similar dispute resolution proceedings in the future.
This is said particularly to be so when the Proposed Orders envisage enabling all of the indigenous respondents to the Boonwurrung application, many of whom it is said assert no interest in the claim area in the Withdrawn Gunaikurnai Application, to access the information produced in the Experts’ Conferences and Joint Reports. They contend that the variation contemplated by the Proposed Orders would be contrary to the interests of justice that Mortimer J considered relevant when granting the suppression orders, relying on Booth at [35]-[40], [63]-[66].
The Gunaikurnai applicant further submits that, regardless of whether the Court is minded to vary the suppression orders, it is impermissible for any party who received any of the Joint Reports to use those reports in the manner contemplated by the Proposed Orders because the parties in that proceeding are bound by the implied undertaking not to use documents produced through compulsory Court processes in a proceeding for a purpose outside of that proceeding, as described in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (the Harman undertaking). See also Hearne v Street [2008] HCA 36:253 CLR 125.
It contends that if any party to the Withdrawn Gunaikurnai Application wishes to be relieved of the Harman undertaking it must demonstrate “special circumstances”, citing Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] (Branson, Sundberg and Allsop JJ) in that regard. It argues that the following matters weigh against concluding that special circumstances exist, and point away from varying the suppression orders as proposed:
a)The materials were produced as part of a confidential and without prejudice Court-ordered dispute resolution process. The Gunaikurnai Applicant continues to assert joint and/or individual without prejudice privilege over the suppressed materials.
b)The suppressed materials were not tendered as evidence in the withdrawn Gunaikurnai Application and their findings were not tested in court. As a result, the implied undertaking, and the without prejudice privilege, attaching to the materials remains in place.
c)For the reasons provided herein, to waive without prejudice privilege in this instance would be to undermine the public interest in promoting the settlement of disputes that the privilege is intended to afford.
d)To produce materials from a confidential experts’ conference conducted for the purpose of dispute resolution in one matter, in circumstances where those materials were not tendered as evidence, for use by parties in another matter, especially to those parties with no interest in the area covered by the Withdrawn Gunaikurnai Application, would be inconsistent with the purpose of such experts’ conferences.
e)As per the resolution of the Gunaikurnai full group meeting on 24 August 2019, the Gunaikurnai full group do not accept the findings of the Second Experts’ Conference.
f)The suppressed materials, by their nature, can be presumed to be likely to contain culturally sensitive information and sensitive personal information pertaining to and provided by Aboriginal people who claim connection over the former claim area, including individuals from the Gunaikurnai Claim Group;
g)The Gunaikurnai Applicant instructs that they consider that the variation of the suppression orders as contemplated by the Proposed Orders, in particular the sharing of sensitive information with parties who claim no interest to the former claim area, to be inconsistent with traditional law and custom.
h)The materials were produced for the purpose of assisting the resolution of the native title claim brought by the Gunaikurnai named applicant on behalf of the Gunaikurnai native title claim group in the Withdrawn Gunaikurnai Application. This native title claim was made over a relatively small area, predominantly Wilson’s Promontory, and was joined by a limited number of parties as individual respondents. Materials produced for this limited purpose are unlikely to meaningfully contribute to achieving justice in the current proceeding. To any extent that they may contribute to such an end, this is outweighed by the harm caused by their production, as outlined in these submissions.
In the alternative, the Gunaikurnai applicant submits that the content of the Experts’ Conferences and Joint Reports cannot be said to be sufficiently relevant to achieving justice in the Boonwurrung application so as to warrant the disclosure. It contends that, to the extent that the Joint Reports could be considered relevant in the Boonwurrung application, they would only be relevant to those parties to the proceeding who are involved in the dispute about who are the correct people for the Wilsons Promontory area. They argue that if the Court is minded to vary the suppression orders, the variation should not extend to permit the non-indigenous respondents or the indigenous respondents to the Boonwurrung application who do not have an interest in the Wilsons Promontory area to have access to that material.
It also contends, in the alternative that based on the descriptions contained in the orders made for the Experts’ Conferences in the Withdrawn Gunaikurnai Application, the only information which could potentially be relevant to the parties in the Boonwurrung application is the material from the Third Experts’ Conference. On that basis, they contend that any variation to the suppression orders should be limited to the content and findings of that Experts’ Conference, the Third Joint Report arising from it, and the underlying materials to it.
Finally, the Gunaikurnai applicant argues that it is for the Boonwurrung applicant to prove the composition of the native title claim group and the factual basis of the Boonwurrung application. It submits that the interests of justice will not be served by forcing the production of materials about the Gunaikurnai native title claim that was produced confidentially and on a without prejudice basis in the Withdrawn Gunaikurnai Application, and which is the subject of suppression orders.
The Gunaikurnai respondents
As noted above, Russell Mullett filed submissions in his capacity as a member of the Gunaikurnai applicant in the Withdrawn Gunaikurnai Application. Jointly with Mr McDonald, he also filed submissions as the Gunaikurnai respondents to the Boonwurrung application.
As a Gunaikurnai respondent Mr Mullett takes a different stance to that he took as a member of the Gunaikurnai applicant. The Gunaikurnai respondents do not oppose variation to the suppression orders; rather they accept that some variation to the suppression orders is appropriate, and propose variations to the orders essentially in line with the alternative submissions made by the Gunaikurnai applicant.
They note that the claim area in the Withdrawn Gunaikurnai Application is substantially different to the Boonwurrung claim area, which covers a much larger area than Wilsons Promontory. They submit that:
(a)the Boonwurrung applicant has not demonstrated how the information from the Experts’ Conferences and Joint Reports is relevant in the Boonwurrung application, noting that the applicant initially sought variation only to the suppression orders in relation to the Second and Third Joint Reports. They contend that it is up to the Boonwurrung applicant to demonstrate that the First Experts’ Conference and Joint Report which are the subject of the earlier suppression orders are relevant, and argue that unless the applicant can do so the suppression orders should not be varied;
(b)the variation orders should explicitly limit any disclosure of the suppressed information to the purposes of the Boonwurrung application;
(c)none of the information discussed in the Experts’ Conferences, or which made its way into the Joint Reports was tested, and that it is not appropriate that such untested information be disclosed. They argue that the proposed variation orders should limit any disclosure of the suppressed information to the findings only of the Second and Third Experts’ Conferences;
(d)the Boonwurrung applicant’s proposal that the material and information contained in the Experts’ Conferences and Joint Reports should be permitted to be used for the purpose of “making decisions” in the Boonwurrung application is too broadly stated. They contend that, because of the history of disclosure for extraneous and inappropriate purposes, such broad use of the suppressed information should not be permitted, and that any variation to the suppression orders should limit the purposes of any disclosure to obtaining legal advice, giving instructions and briefing relevant experts in the Boonwurrung application; and
(e)not all of the parties to the Boonwurrung application should have access to the suppressed information in the Withdrawn Gunaikurnai Application. They contend that, because the Wurundjeri Woi Wurrung respondents and the Wadawurrung respondents do not assert traditional rights and interests in the Wilsons Promontory area, but do in other parts of the Boonwurrung claim area, they can have no legitimate interest in the Experts’ Conferences and Joint Reports and should not have access to them for use in the Boonwurrung application.
They accept that it is appropriate that the following parties in the Boonwurrung application be permitted access to the findings of the Second and Third Joint Reports, strictly for the purposes of the Boonwurrung application:
(a)the Boonwurrung applicant; which will permit disclosure of those Joint Reports for their use and to instruct their legal representatives and experts on behalf of the Boonwurrung People for whose benefit the proceeding is brought;
(b)the State and the Commonwealth; who were respondents to the Withdrawn Gunaikurnai Application and are respondents to the Boonwurrung application; and
(c)the Gunaikurnai respondents; on the basis that Russell Mullett was a representative of the Gunaikurnai applicant in the Withdrawn Gunaikurnai Application, that Pauline Mullett was a member of the native title claim group in that application, and that Russell Mullett, Pauline Mullett and Mr McDonald are respondents in the Boonwurrung application.
CONSIDERATION
The parties in the Withdrawn Gunaikurnai Application included:
(a)the Gunaikurnai applicant, of which Russell Mullett was one of the members;
(b)Dr Briggs, a Boonwurrung person, as a respondent;
(c)Daniel Turnbull, a Bunurong person, as a respondent;
(d)the State, as a respondent; and
(e)the Commonwealth, as a respondent.
The first four of those parties engaged experts who were involved in one or more of the Court-convened Experts’ Conferences and Joint Reports.
The terms of the suppression orders mean that that the parties in this application who through their involvement in the Withdrawn Gunaikurnai Application had access to the material or information disclosed in the Experts’ Conferences and Joint Reports, are not permitted to use that material for the purposes of the Boonwurrung application. Because of the suppression orders the parties have not taken me to what was discussed in the Experts’ Conferences, nor to any contents of any of the Joint Reports. I can only infer that, in the Experts’ Conferences, the parties’ experts considered the underlying historical and genealogical materials in relation to the claims advanced by the competing Aboriginal groups, posited their views on the questions raised, conferred between themselves and produced the Joint Reports.
It is, though, uncontentious that the Withdrawn Gunaikurnai Application included a dispute between Gunaikurnai, Boonwurrung and Bunurong people as to which Aboriginal group has traditional rights and interests in the land and coastal waters of and around Wilsons Promontory. I infer that one or other of the Expert Conferences and Joint Reports dealt with that issue.
I accept that the materials and information produced in the Experts’ Conferences and contained in the Joint Reports was disclosed pursuant to confidential Court-ordered processes, that the documents containing such information were not tendered as evidence in that case, and that the information disclosed is likely to have included personal genealogical information and perhaps culturally sensitive information. I accept too that the Gunaikurnai applicant, and the Gunaikurnai respondents, do not wish to have confidential information from that proceeding used for the purposes of the Boonwurrung application.
But several things should be kept in mind. As noted in Booth at [35]-[37], it is a feature of native title proceedings that a great deal of highly personal information relevant to the determination of claims for native title. The parties in native title proceedings are often obliged to share their family histories which sometimes can involve traumatic events, matters about people’s families that they would otherwise not share, and certainly not with strangers, and to give evidence of their traditional laws and customs and their stories of connection to country in order to satisfy the requirements of proof under the Native Title Act. This is the uncomfortable reality for an indigenous respondent opposing a native title determination application, just as much as it is for a native title applicant.
Importantly, where those laws, customs and stories comprise “special knowledge” to which only a limited number of persons are privy, it is well recognised that orders may be made to treat such information as confidential and only be disclosed to identified persons or categories of persons: see for example Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [2033]-[2037] (Barker J) and Jango v Northern Territory of Australia [2003] FCA 1230 at [56] and [59] (Sackville J). In the interlocutory application neither the Gunaikurnai applicant or the Gunaikurnai respondents made any suggestion that the information produced in the Experts’ Conferences or contained in the Joint Reports includes such “special knowledge”.
I note also that the suppression orders were not centrally directed at protecting the material and information disclosed in the Experts’ Conferences and Joint Reports because of any particular confidentiality or cultural sensitivity that the information was said to have. Rather, against the background that:
(a)there was, as Mortimer J described it, ongoing “ugly” disputation between competing Aboriginal groups as to which people are the correct people for the Wilsons Promontory area; and
(b)that dispute would be ongoing in the recently commenced Boonwurrung application;
the suppression orders were directed at curtailing the inappropriate disclosure of information produced through the Experts’ Conferences as that could undermine the Court’s processes in the new proceeding, including because lay and expert witnesses may be reluctant to become or remain involved in that proceeding.
It must also be kept in mind that, although the claim area in the Boonwurrung application extends further than the area in and around Wilsons Promontory, the question as to which Aboriginal people, if any, are the right people for that area was the subject of an Experts Conference and Joint Report in the Withdrawn Gunaikurnai Application and will require to be decided in the Boonwurrung application.
In my view, it is appropriate to vary the suppression orders to allow the Boonwurrung applicant, the State, the Commonwealth and all but one of the indigenous respondents in the Boonwurrung application to have access to the material and information disclosed in the Experts’ Conferences and Joint Reports and to be permitted to use it for the legitimate purposes of the Boonwurrung application.
First, that is because the commencement of the Boonwurrung application continued the dispute in relation to which of the Boonwurrung, Gunaikurnai and Bunurong groups, if any, is the right people for the area in and around Wilsons Promontory. Unless the suppression orders are varied, some of the parties in the Boonwurrung application, some of their legal representatives and some of their experts will be apprised of the materials or information produced in the Experts’ Conferences and contained in Joint Reports, whereas others will not. For example:
(a)through her involvement as a respondent in the Withdrawn Gunaikurnai Application, Dr Briggs had access to the materials and information in the Experts’ Conferences and Joint Reports. The same is true of Jason Briggs, her solicitor in the Withdrawn Gunaikurnai Application and also in the Boonwurrung application. However, counsel for the Boonwurrung applicant does not have access to the material and Dr Briggs is prevented by the suppression orders from providing those materials to him. If that is maintained, counsel for the Boonwurrung applicant will be hindered in the Boonwurrung application, while other counsel in the case will not. Further, Dr Briggs acts in a representative capacity for the Boonwurrung claim group and the suppression orders mean that she is prevented from informing the other named representative of the claim group, Sylvia Muir, about the relevant material and prevented from informing the claim group about that information so as to obtain instructions. That is unworkable and unfair;
(b)Daniel Turnbull, the Bunurong respondent in the Withdrawn Gunaikurnai Application and his solicitors, First Nations Legal, had access to the relevant material, but Mr Turnbull is not a party in the Boonwurrung application. I infer that the Bunurong respondents in the Boonwurrung application have not had access to the relevant; yet another Bunurong person, Mr Turnbull, has, and the material and information from the Experts’ Conferences and Joint Reports may be relevant to the facts in issue between the Bunurong respondents and the Boonwurrung applicant; and
(c)through his involvement as a member of the Gunaikurnai applicant Russell Mullett had access to the relevant information and material, as I infer did its solicitors, First Nations Legal. Mr Mullett is a respondent to the Boonwurrung application in a personal capacity and he is not obliged to seek instructions from a claim group. Thus, the limitation on use of the suppressed material does not affect him in the same way as it affects Dr Briggs. He is though prevented from communicating the suppressed material to Mr McDonald and Pauline Mullett and they will be hindered in advancing their case in the Boonwurrung application.
In my view, it is incompatible with procedural fairness in the Boonwurrung application that some parties, their legal representatives and experts are apprised of information that is or may be relevant to the issues in dispute, while other parties, their legal advisers and experts are not. If that is permitted to occur the parties will not be on an even playing field.
Second, pursuant to s 37M of the FCA Act the Court’s overarching obligation in the Boonwurrung application is the just resolution of the proceeding according to law, as quickly, inexpensively and efficiently as possible. As I have said, I infer that the parties’ experts in the Withdrawn Gunaikurnai Application undertook research and considered any historical and genealogical information in relation to the claims asserted by the competing Aboriginal groups, posited their views on the questions for consideration, conferred between themselves in the Experts’ Conferences and produced the Joint Reports. To the extent that the materials and information produced in the Experts’ Conferences and Joint Reports is relevant in the Boonwurrung application it will undoubtedly be slower, more expensive and less efficient if the parties in that proceeding (which include the same main parties as in the Withdrawn Gunaikurnai Application) are required to advance their cases without being able to use that material or information.
It can also be argued to be inconsistent with the overarching obligation under ss 37M and 37N that further experts’ conferences be ordered in the Boonwurrung application to deal with questions that have already been the subject of Joint Reports in the Withdrawn Gunaikurnai Application, particularly in circumstances when there is likely to have been at least some agreement between the different experts. Doing so would also permit “expert shopping” which is inconsistent with the parties’ obligations.
Third, I accept the Gunaikurnai applicant’s submission that, even without the suppression orders, the parties in the Withdrawn Gunaikurnai Application are bound by an implied Harman undertaking which prevents them from using the material produced in the compulsory Experts’ Conferences and Joint Reports for purposes outside that proceeding, unless they obtain leave of the Court.
The fundamental principle by which the Court’s discretion to grant such leave is guided is that the Court will not release or modify the implied undertaking unless there are “special circumstances” and where the release or modification of the undertaking will not occasion injustice to the person who produced the documents in issue: Holpitt Pty Ltd v Varimu Pty Limited (1991) 29 FCR 576 at 578 (Burchett J). That is not, however, as high a bar as it might appear. As the Full Court explained in Liberty Funding at [31]:
…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
Adjudicating the Boonwurrung application will go beyond deciding who are the correct Aboriginal people for the area of and around Wilsons Promontory, but because it includes that issue there is a substantial crossover between the Boonwurrung application and the Withdrawn Gunaikurnai Application. Experts on behalf of the Gunaikurnai applicant, and Boonwurrung and Bunurong groups have already expressed views on that question in one or other of the Experts’ Conference and Joint Reports and the material and information which go to that issue are relevant in the Boonwurrung application.
I accept that some of the material from the Experts’ Conference and Joint Reports may not be relevant in the Boonwurrung application. But without the parties, their legal representatives and experts in the Boonwurrung application having the opportunity of considering the material from each of the Experts’ Conferences and Joint Reports the Boonwurrung applicant submits, and I accept, that it is difficult to assess whether the material is relevant. As the Bunurong respondents submit, any material which points to difficulties for the Boonwurrung applicant in establishing native title rights and interests throughout the Boonwurrung claim area may be relevant to the Bunurong respondents’ case.
Thus, unless the parties in the Withdrawn Gunaikurnai Application are released from the implied undertaking for the purposes of the Boonwurrung application, there is: (a) likely to be unfairness as between the parties in that application; and (b) determination of some of the questions in that application is likely to be slower, more expensive and less efficient. These are good reasons to grant the parties relief from their implied undertaking (and to vary the suppression orders).
I am not persuaded that the Gunaikurnai applicant or the Gunaikurnai/Kurnai respondents will suffer real prejudice if the parties in the Withdrawn Gunaikurnai Application are released from their implied undertaking, or if the suppression orders are varied as ordered. Through their involvement in the Withdrawn Gunaikurnai Application most of the main parties in the Boonwurrung application already have access to the information in the Experts’ Conferences and Joint Reports. Relief from the implied undertaking will not mean that they will now have information which may be personal and culturally sensitive; they already have it. It will only mean that they can use that material for the purposes of the Boonwurrung application, in which some of the same parties are involved and some of the same questions arise.
In relation to the arguments about relevance, it is significant that the suppression orders mean that those parties and/or their legal representatives in the Boonwurrung application who have not had access to the material from the Experts’ Conferences and Joint Reports face difficulties in deciding what may be relevant and what may not; and those parties and/or their legal representatives who have had access to that material are prevented from using it to make submissions as to what is relevant and what is not. As a result, the Court is not in a position to decide what information in the Experts’ Conferences and Joint Reports may be relevant in the Boonwurrung application and what may not be.
I propose to deal with that problem in this way. Following the identified parties having been apprised of the material, if it can be shown to the Court that some of it is not relevant in the Boonwurrung application, I will grant leave to the parties in that proceeding and/or to the Gunaikurnai applicant, to seek an order to require that such material be again treated as confidential or suppressed, or that it no longer be used in the Boonwurrung application.
Fourth, I do not accept the Gunaikurnai parties’ submission that it is appropriate to limit the use of the information in Experts’ Conferences and Joint Reports by a party in the Boonwurrung application such that it can only be used for the purposes of giving instructions, obtaining legal advice, and briefing relevant experts in that proceeding. While I expect those purposes will constitute the main reasons for its use, once apprised of the relevant material the parties in the Boonwurrung application should be able to use the material for any legitimate purpose of the proceeding.
Having said this, and in light of the (disputed) allegations about misuse of information from the Experts’ Conferences and Joint Reports, it is critically important that the parties understand that if material or information from the Experts’ Conferences or Joint Reports in the Withdrawn Gunaikurnai Application is used for a purpose outside the legitimate purposes of the Boonwurrung application, such use will be in breach of the suppression orders as varied, and will also constitute a breach of the implied Harman undertaking.
The parties and their lawyers in the Boonwurrung application are directed to make crystal clear to the persons in their camps that any publication of the material for a purpose outside the legitimate purposes of the Boonwurrung application, whether by posting comments on social media, by speaking in public about it, or otherwise, may be punishable by a prosecution for contempt, and ultimately by imprisonment if a party is found guilty of contempt. The parties and their lawyers are directed to strongly emphasise that.
Fifth, I do not accept that only the suppression orders in relation to the Second and Third Experts’ Conferences and Joint Reports should be varied. It is true that, initially, the Boonwurrung applicant did not seek variation of the suppression orders in relation to the First Experts’ Conference and Joint Report, but it did in its written submissions. The Gunaikurnai parties argue that the information in the First Experts’ Conference and Joint Report is not relevant to any issue in the Boonwurrung application, but as I have said, the Court is not in a position to decide what material in the Experts’ Conferences and Joint Reports may be relevant in that proceeding and what may not.
Sixth, I do not accept that it is appropriate to limit the variation of the suppression orders so that only the findings in the Joint Reports are made available to the parties for the purposes of the Boonwurrung application. As the Boonwurrung applicant contends, it may well be the case that the findings cannot be properly appreciated and assessed without also having access to the underlying historical or genealogical material. Again, the Court is not in a position to decide whether it will be sufficient for the parties if only the findings in the Joint Reports are made available to the identified parties in the Boonwurrung application.
Seventh, it is relevant that the Wurundjeri Woi Wurrung respondents and the Wadawurrung respondents claim to have traditional rights and interests in areas well removed from the claim area in the Withdrawn Gunaikurnai Application, and neither assert traditional rights and interests in areas in or around Wilsons Promontory.
But I accept the Wurundjeri Woi Wurrung respondents’ contention that the issues for consideration in the Experts’ Conferences went beyond a boundary dispute and that some of the material in the Experts’ Conferences and Joint Reports may be relevant to their opposition in their area of interest in the Boonwurrung claim area. I accept that it would be procedurally unfair if they are not permitted access to the information in the Experts’ Conferences and Joint Reports when other parties have it.
I take a different view in relation to the Wadawurrung respondents. They have not shown any interest in obtaining access to the relevant material and I will not at this stage vary the suppression orders to give them access. If they wish to later make an application they can do so.
For these reasons, I have made the attached orders in the Withdrawn Gunaikurnai Application.
I certify that the preceding sixty seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 23 November 2022
ATTACHMENT A
SCHEDULE OF PARTIES
VID 363 of 2020 Applicants
Frist Applicant
DR CAROLYN MARIA BRIGGS AM
Second Applicant
SYLVIA FAY MUIR
Respondents
First Respondent
STATE OF VICTORIA
Second Respondent
THE COMMONWEALTH OF AUSTRALIA
Fifth Respondent
RUSSELL MULLETT
Sixth Respondent
PAULINE MULLETT
Eighth Respondent
JARROD WEST
Ninth Respondent
ROBERT OGDEN
Tenth Respondent
TASMA WALTON
Eighteenth Respondent
RONALD WILLIAM JONES
Nineteenth Respondent
MARGARET GLORIA GARDINER
Twentieth Respondent
PERRY JAMES WANDIN
Twenty Fourth Respondent
TROY STEPHEN MCDONALD
VID 737 of 2014 Respondents
Fourth Respondent:
DR CAROLYN MARIA BRIGGS
Fifth Respondent:
MR DANIEL JAMES TURNBULL
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