Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal
[2011] NNTTA 66
•15 April 2011
NATIONAL NATIVE TITLE TRIBUNAL
Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal, [2011] NNTTA 66 (15 April 2011)
Application Nos: WF10/11 and WF10/12
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into future act determination applications
Fortescue Metals Group Ltd (first grantee party/first applicant)
- and -
FMG North Pilbara Pty Ltd (second grantee party/second applicant)
- and -
Johnson Taylor and Others on behalf of the Njamal People (WC99/8) (native title party)
- and -
The State of Western Australia (Government party)
DECISION ON WHETHER THE TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Tribunal: Daniel O’Dea, Member
Place: Perth
Date: 15 April 2011
Catchwords: Native title – future acts – applications for a determination in relation to mining leases – power – jurisdiction – whether grantee parties have negotiated in good faith – scope of the obligation to negotiate in good faith (s 31(2)) - alleged conflict of duty of grantee negotiator - grantee parties have negotiated in good faith.
Legislation:Native Title Act 1993 (Cth) ss 29, 26, 25-44, 35, 38, 30A, 31(1)(b), 36(2)
Mining Act 1978 (WA) s 24(7), s 67
Aboriginal Affairs Planning Authority Act 1972 (WA) s 31 Reg 8
Cases:FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49
Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612; [2006] FCA 1404
Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52; [2005] NNTTA 88
Holborow & Ors v Macdonald Rudder [2002] WASC 265
Ismail-Zai v State of Western Australia (2007) 34 WAR 379; [2007] WASCA 150
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Mallesons Stephen Jaques v KPMG Peat Marwick and Others (1990) 4 WAR 357; [1991] ANZ ConvR 200
Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78; [2000] FCA 1410
Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125
Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 361
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222; [2000] ANZ ConvR 260; [1999] 1 All ER 517; [1999] 2 WLR 215
Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831
Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248
State of Western Australia v Ward on behalf of Miriuwung Gajerrong Peoples (1997) 76 FCR 492; (1997) 145 ALR 512; [1997] FCA 585; [1997] WAG 57/97
Western Australia v Taylor and Another (1996) 134 FLR 211; [1996] NNTTA 34
Yunghanns v Elfic Ltd (unreported, Vic Sup Ct, Gillard J, 03/07/1998)
Solicitors for the Ms Maimbo Chilala, Pilbara Native Title Service
native title party: Mr Rainer Mathews, Pilbara Native Title Service
Solicitor for the
grantee party: Mr Ken Green, Green Legal Pty Ltd
Representatives of the Mr Ian Repper, State Solicitors Office
Government party: Ms Paola O’Neill, Department of Mines and Petroleum
REASONS FOR DECISION ON WHETHER TRIBUNAL HAS POWER TO CONDUCT AN INQUIRY
Background
On 15 July 2009, the Government party gave notice under s 29 of the Native Title Act 1993 (Cth) (the Act/NTA) of future acts, namely the grant of the following mining leases (‘the proposed leases’) under the Mining Act 1978 (WA) to the following parties:
·M45/1180, 202.82 hectares, to Fortescue Metals Group Ltd
·M45/1181, 198.21 hectares, to Fortescue Metals Group Ltd
·M45/1182, 221.11 hectares, to Fortescue Metals Group Ltd
·M45/1183, 262.02 hectares, to Fortescue Metals Group Ltd
·M45/1184, 193.28 hectares, to FMG North Pilbara Pty Ltd
In these proceedings both Fortescue Metals Group Ltd and FMG North Pilbara Pty Ltd were represented by solicitors, being Green Legal Pty Ltd, and for the purposes of these proceedings, unless the context otherwise requires, a reference in these reasons to the grantee party or FMG includes both grantee parties.
The proposed leases are located 72 kilometres west of Marble Bar in the Shire of East Pilbara and are entirely overlapped by the Njamal registered claim (WC99/8, registered from 3 June 1999). Accordingly, the native title party in respect of these proceedings is Njamal.
The proposed leases are future acts covered by s 26(1)(c)(i) of the Act and unless the right to negotiate provisions of the Act are complied with (Part 2, Division 3, Subdivision P (ss 25-44)) will be invalid to the extent that it affects native title.
On 30 June 2010, being a date more than six months after the s 29 notice was given, the grantee party made applications pursuant to s 35 of the Act for a future act determination under s 38. The applications were made on the basis that the negotiation parties had not been able to reach agreement within six months of the Government party giving notice of its intention to do the act.
The obligation to negotiate in good faith
The Tribunal must be satisfied as a pre-condition to determining a s 35 application that parties have negotiated in good faith as required by s 31(1)(b) of the Act. Once the issue has been raised, the Tribunal must deal with it in order to satisfy itself that it has the power to proceed to make a determination under s 38.
The obligation to negotiate in good faith is contained in s 31 of the Act:
31 Normal negotiation procedure
(1)Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a)the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b)the negotiation parties must negotiate in good faith with the view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
Note: The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Negotiation in good faith
(2)If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3)If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
I adopt relevant legal principles from Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52; [2005] NNTTA 88 (at 55-60) for the purposes of this inquiry unless in conflict with the Full Federal Court decision in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141; (2009) 255 ALR 229; [2009] FCAFC 49 (Cox) (see also Mt Gingee Munjie Resources Pty Ltd v State of Victoria (2003) 182 FLR 375; [2003] NNTTA 125, Western Australia v Taylor and Another (1996) 134 FLR 211; [1996] NNTTA 34).
The negotiation parties under the right to negotiate provisions are the Government party, grantee parties and native title party (s 30A NTA). If any negotiation party satisfies the Tribunal that any other negotiation party (other than the native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) of the Act the Tribunal must not make a determination (s 36(2) NTA). The practical effect of s 36(2) is to place an ‘evidential burden’ on the party alleging lack of good faith negotiations which would normally require it to produce evidence to support its allegations. The Tribunal is not required to adopt strict rules on burden of proof but any party alleging a lack of good faith negotiations must provide contentions and documents which specify in detail the matters it relies on. (Placer (Granny Smith) Pty Ltd v Western Australia (1999) 163 FLR 87; [1999] NNTTA 361 at [21]-[28]).
The NTP contends that the grantee party did not fulfil its obligation to negotiate in good faith. No such contention is made in respect of the Government party.
On 26 July 2010, I made directions for the conduct of the inquiry including that parties provide contentions and evidence in relation to the good faith issue. Final submissions on the good faith issue were received on 8 December 2010. With the consent of the parties I considered it appropriate to decide the matter on the papers.
Contentions and evidence
The native title party provided the following submissions supporting its contention that the grantee party did not negotiate in good faith regarding the doing of the act:
·The Contentions of the Native Title Party as to Lack of Good Faith (‘native title party contentions’), dated 1 September 2010 and supporting documents:
·Affidavit of Ian Taylor, member of the Njamal working group, in support of the native title party contentions, affirmed on 31 August 2010;
·Affidavit of Tony Taylor, member of the Njamal working group, in support of the native title party contentions, affirmed on 25 August 2010;
·Affidavit of Doris Eaton, member of the Njamal working group, in support of the native title party contentions, affirmed on 31 August 2010;
·Affidavit of Maimbo Chilala, solicitor, employed by Yamatji Marlpa Aboriginal Corporation, in support of the native title party contentions, affirmed on 1 September 2010, annexing supporting documents dated between 5 July 2009 and 30 June 2010 labelled as MC 1 to 18.
·Affidavit of Rainer Mathews, in support of the native title party contentions, affirmed 6 October 2011 (two earlier affidavits of Mr Mathews dated 17 September 2010 and 30 September 2010 were withdrawn, see NTP contentions 2/11/10 at para 17);
·The native title party’s Statement of Reply to the grantee party’s Statement of Contentions, dated 2 November 2010, annexing supporting documents 1 to 16;
·The native title party’s response to the grantee party’s objection of 17 November 2010, undated.
·Letter from the native title party to the Tribunal dated 8 December 2010.
The grantee party’s submissions in relation to the good faith issue comprise the following documents:
·A List of Documents dated 19 October 2010;
·Statement of Contentions 19 October 2010;
·Statement of Facts between 11 September 2009 and 18 October 2010 dated 19 October 2010;
·Affidavit of Sukhpal Singh sworn on 18 October 2010;
·Affidavit of Dennis Jacobs sworn on 21 September 2010;
·Affidavit of Alexa Morcombe sworn on 18 October 2010;
·Affidavit of Peter Woodman sworn on 9 September 2010;
·Grantee party’s objection to the native title party’s claim for non disclosure directions dated 17 November 2010;
·Grantee party’s response to the native title party’s application for non disclosure directions dated 30 November 2010.
The Government party’s submissions in relation to the good faith issue comprise a Statement of Contentions, dated 19 October 2010 in which it stated it had no knowledge of the circumstances of Mr Singh’s former employment with the Yamatji Marlpa Aboriginal Corporation (YMAC) or Pilbara Native Title Services (PNTS), nor did it express a view on the question of whether the grantee party had failed to negotiate in good faith as alleged by the native title party.
s 155 Confidentiality Orders
In the native title party’s Statement of Contentions dated 1 September 2010 (at 17 and 18), the native title party made the following submissions under the heading of ‘Procedural Matter: Confidentiality of Evidence’.
17.The native title party has detailed material in its possession of a confidential nature evidencing Mr. Singh’s possession of privileged and confidential information. The native title party seeks confidentiality directions from the Tribunal under s 155 of the NTA, to protect all confidential and privileged information led as evidence in this matter.
18.More particularly, subject to an appropriate direction from the Tribunal pursuant to s 155 of the NTA that the evidence given to it by YMAC must not be disclosed to the grantee party or any other person, the Njamal People intend to lead evidence detailing the confidential and privileged information to which Mr. Singh was privy and which gave rise to the conflict of duty.
In reaction to the content of the two paragraphs referred to above, the grantee party, by its solicitor, wrote to the Tribunal listing a range of issues. These included questions of procedural fairness, and seeking an extension of time in which to comply with the existing directions in order that it would not need to duplicate the effort that would be required to respond to the existing contentions and then to subsequent contentions which need to refer to the documents which might be discovered in consequence of any order made in relation to the material referenced in the native title party’s contentions (at 17 and 18) of 1 September 2010. (The Government party expressed similar concerns). On 17 September 2010 I convened a directions hearing where these matters were canvassed and I subsequently made a confidentiality direction pursuant to s 155 with respect to any material which the native title party might seek to file on or before 24 September 2011. The order was designed in a manner which would permit both the Government party and the grantee party to view the material and then assess whether or not they wished to contest the question of the imposition of the s 155 order in relation to that material. In addition, I extended some of the other directions to accommodate this additional step in the proceedings. No further documents were received from the native title party on or before 24 September 2010 and consequently the s 155 direction lapsed. On 30 September 2010, the native title party’s solicitor, Ms Maimbo Chilala, wrote to the Tribunal and to the parties indicating that:
We have taken advice and will not be filing privileged documents as our clients have not waived privilege in regards to them. We therefore no longer seek any variation to the s 155 order made on 17 September 2010.
At this point it was my understanding that Ms Chilala’s letter meant that there would be no documentary evidence filed in relation to any of the matters raised in the native title party’s Statement of Contention filed on 1 September 2010.
On 3 November 2010 the native title party filed a Statement and Documents in Reply to the grantee party, which was a document filed in response to the evidence and contentions of the grantee party filed on 19 October 2010. Attached to that document was another document headed Annexures to the Native Title Party’s Statement of Documents. A list of those documents was provided, but the documents, themselves, were not. The native title party sought an order similar to the order made on 17 September 2010 and which might have been granted in response to the process which had been initiated at the directions hearing the Tribunal convened on 17 September 2010. The native title party explained that, in its view, as the grantee party, in its affidavits and contentions had put in issue the question of the existence of Mr Singh’s conflict of duty, they had now changed their minds about providing documents to the Tribunal to verify their assertions. The grantee party proposed an interim s 155 confidentiality order be made that allowed the grantee party and Government party to review the documents and provide submissions on any final confidentiality order as appropriate. The Tribunal agreed to this.
On 8 November 2010, pursuant to s 155 of the Act, I made an interim non disclosure order in relation to the annexures to the native title party’s submissions in reply (‘restricted evidence’) in the following terms:
By consent, on 8 November 2010 I directed pursuant to s 155 of the Native Title Act 1993 (Cth) that, subject to clause 3 herein:
1.the annexures to the native title party’s submissions in reply, lodged with the Tribunal on 4 November 2010 (“the restricted evidence”):
(a) shall be kept confidential to Mr Sukhpal Singh as an agent for the grantee party, Mr Ken Green and any counsel engaged by Green Legal Pty Ltd for the grantee party; Ms Paola O’Neill of the Department of Mines and Petroleum, Mr Ian Repper and Mr Jeff O’Halloran of the State Solicitor’s Office;
(i)must not divulge any of the substance of the restricted evidence to any person who is not named in this paragraph;
(ii)must not provide access to, or copies of, the restricted evidence to any other person; and
(b) the restricted evidence may only be used for the purpose of these proceedings;
(c) at the conclusion of the proceedings (including any appeal or review proceedings), all copies of the restricted evidence must be either:
(i)immediately delivered up to the native title party; or
(ii)be destroyed, in which case an affidavit must be filed and served verifying the destruction.
(d) If any party utilises any of the restricted evidence in any document that party provides to the Tribunal or other parties in these proceedings, the party must ensure that the document is structured in such a way as to avoid the disclosure of any of the restricted evidence except in circumstances where a further order for restriction of the new document is sought and granted.
2.This direction operates only to the extent that the restricted evidence is not lawfully in the possession of a person referred to in paragraph 1(a) above, as evidenced by his or her written records.
3.(a) Within 7 days of the date of the receipt of the restricted evidence, the grantee party and Government party may file with the Tribunal a notice setting out any objection to the inclusion of any document comprising the restricted evidence in the range of documents covered by this order.
(b) Within 7 days of the date of the receipt of a notice objecting to the inclusion of any document in the range of documents covered by this order, the native title party will file a response with the Tribunal, setting out the grounds on which such a document should be covered by this order.
(c) Within 3 days after receipt of a notice pursuant to clause 3(b) above, the grantee party and Government party may provide to the Tribunal a statement in reply.
(d) Subsequent to its consideration of the documents referred to in clause 3(a), (b) and (c) above, the Tribunal will make a final order in terms of clauses 1 and 2 above, amended as necessary.
Following the making of these orders, the native title party served a copy of the restricted evidence to the Government and grantee party for review.
Parties lodged submissions on the issue of final non-disclosure orders and on 1 December 2010 I advised parties that I intended to make orders in identical terms as Orders 1 and 2 of the interim rders, save that in Order 1 the annexures specified will be confined to 5B, 5C, 12 and 16D. The native title party was afforded the opportunity to withdraw any documents they had previously submitted that would no longer be the subject of non disclosure orders. On 8 December 2010, the native title party sought to withdraw annexures 11, 14, 15, 16A, 16C and 16D and in all instances, except annexure 15, sought leave to file redacted versions of these documents which would not be covered by the confidentiality orders. The Tribunal granted the leave sought. In relation to several annexures that were not redacted or covered by the non disclosure orders, but not withdrawn, the native title party requested the Tribunal exercise discretion when referring to them in the determination.
The future act negotiations
Mining lease applications M45/1180, M45/1181, M45/1182 and M45/1183 are wholly overlapped by exploration licence E45/2510, granted in 2007 and currently held by Fortescue Metals Group Ltd. Mining lease application M45/1184 is wholly overlapped by exploration licence E45/3084, granted in 2007 and currently held by FMG North Pilbara Pty Ltd. As such, FMG have applied for the proposed leases by right under s 67 of the Mining Act 1978.
The proposed leases and the underlying exploration licences form part of FMG’s Glacier Valley project. Negotiations took place in 2007 in relation to two exploration licences, including E45/2510, and on or about 6 August 2007 FMG entered into an agreement with the native title party which provided for the grant of these tenements.
The native title party’s submissions contend that the involvement of Mr Sukhpal Singh in negotiations for the proposed leases, following his employment at YMAC (the registered representative body for the area of the Njamal claim and the legal representative of the native title party), constitutes a conflict of duty. Mr Singh is currently employed as Land Access Lawyer for Fortescue Metals Group Limited, the grantee. Between November 2005 and September 2008 Mr Singh was employed by YMAC as Senior Legal Officer and later as Deputy Principal Legal Officer. The native title party contend that, during his employment at YMAC, Mr Singh acted for the native title party in various matters, including FMG’s Glacier Valley project.
The native title party’s fundamental submission in this matter is that the involvement of Mr Sukhpal Singh as a negotiator on behalf of the grantee party in the negotiations for the proposed leases, in circumstances where they allege he had a clear conflict of duty and interest, amounted to a failure on the part of the grantee party to negotiate in good faith. The native title party allege, and it is not disputed, that between November 2005 and September 2008, Mr Singh was employed by YMAC as a Senior Legal Officer and later as a Deputy Principal Legal Officer. The native title party contend that Mr Singh previously acted for the native title party and ‘was privy to confidential and privileged information’, the possession of which, by him in his capacity as a negotiator for the grantee party, ‘prejudiced the Njamal People’s ability to engage in negotiation on a fair and reasonable footing’ (NTP contention at 21).
The native title party contend that the confidential and privileged information that they allege Mr Singh possessed as a result of his employment with YMAC and representation of the Njamal People included information (NTP contentions 22) in relation to the previous negotiations between the native title party and the grantee party in relation to the Glacier Valley project, which made him privy to a range of matters, including:
a)advice previously provided by the native title party to YMAC in relation to its negotiations with the grantee party, strategies employed by the native title party to maximise their bargaining leverage in previous negotiations with the grantee party, the scope of authority given by the native title party to YMAC to negotiate on their behalf, concerns of the native title party in relation to the project, and the nature of internal discussions within YMAC on how best to progress the negotiations between the grantee party and the native title party in relation to the Glacier Valley Project.
b)knowledge of the native title party’s cultural obligations which might affect their capacity to negotiate with mining companies;
c)knowledge of the operation of the native title party’s charitable trust, including sensitive information about distributions;
d)the confidential terms of the native title party’s agreements with other mining companies which would give the grantee party in this matter an insight into what they are prepared to accept in a range of negotiation situations;
e)the content of confidential negotiations that the native title party had with other mining companies;
f)the substance of the native title party’s ongoing negotiations with BHPBIO;
g)confidential information about internal discussions within the native title group about authorisation and distribution of proceeds from the mining agreements;
h)the likelihood of success of the native title party’s native title claim; and
i)knowledge of the day-to-day conduct of the native title party.
The native title party further alleges that the grantee party failed to negotiate in good faith with the native title party because it:
a)acted unilaterally in attempting to obtain a waiver from the Njamal People in relation to the conflict of duty issue (NTP contentions at 23 and 100);
b)the grantee party asserted, on various occasions, that Mr Singh had not acted for the native title party and did not possess or was not privy to confidential information about the native title party (NTP contentions at 23 and 101);
c)the grantee party did not disclose the circumstances relevant to the negotiations, including the identity of their proposed joint venture partner (NTP contentions at 23 and 99); and
d)the negotiations were begun at a very preliminary stage of the project when the scope of the project was unknown (NTP contentions at 23).
The native title party also alleges that the grantee party failed to act reasonably in the negotiations (NTP contentions at 103-106) by:
a)retaining Mr Singh as part of its negotiation team in circumstances where it knew that he was privy to, or in possession of, confidential and privileged information which prejudiced the native title party and prevented them from engaging in free and fair negotiation;
b)including Mr Singh in their negotiating team when they knew he owed a professional duty of loyalty to the native title party, not to act contrary to its interests;
c)not excluding Mr Singh from their negotiating team when they knew he would ‘be precluded from acting for them by any competent court of Australia exercising their inherent jurisdiction’; and
d)retaining Mr Singh in their negotiating team when they were aware of the fact that he was privy to information that was the subject of confidentiality orders of the Tribunal, the breach of which prejudiced the native title party in the current negotiations.
Before we proceed to examine the contentions of the grantee party, and the evidence submitted by both parties to support their contentions, it is important to remember that the allegation made by the native title party is that the grantee party, ie FMG, failed to negotiate in good faith on this matter, not Mr Singh. My focus in the examination of the evidence will be on the behaviour of FMG, the grantee party. There is a question, which I discuss further below, as to whether a finding that Mr Singh did act in breach of his duty to his former client, the native title party would be, of itself, sufficient to found a finding of a failure to negotiate in good faith against the grantee party. As can be seen, the bulk of the grounds on which the native title party asserts the grantee party failed to negotiate in good faith, relate to the circumstances of Mr Singh and his involvement in negotiations. It is contended by the grantee party that, unless the Tribunal can satisfy itself that the alleged confidential information existed, was communicated to Mr Singh, was confidential at the time and remained confidential during the relevant negotiations, then the Tribunal cannot consider further those arguments by the native title party based on the confidential information with which it alleges Mr Singh came to possess as a result of his previous employment with YMAC. (GP contentions at 4.10(4) p 22)
The critical evidence provided to me by the native title party in relation to this matter consisted of a series of affidavits from members of the claimant group and another solicitor in the employ of YMAC, Ms Chilala, the affidavit of 6 October 2010 of Mr Rainer Mathews and those documents provided to the Tribunal on 17 November 2010 and in some cases, protected by a s 155 order. Some of those documents have been redacted (blacked out) to a greater or lesser extent and, consequently, are of varying degrees of probative value. One document, annexure 15 in the original list, was withdrawn because of its sensitivity. I should add that I do not make any adverse inference against the native title party for seeking to carefully preserve the native title party’s confidential material and in an exercise of their judgement, to redact or withdraw such documents as they saw fit.
Since the time that Mr Singh left the employment of YMAC on 8 September 2008 and commenced employment with the grantee party on 9 September 2008, there had been correspondence between YMAC and the grantee party about perceived conflicts of duty and interest which may affect Mr Singh and his capacity to represent the grantee party in negotiation concerning matters in the Pilbara where he may previously have represented native title parties or claim groups. Mr Singh’s affidavit, sworn on 18 October 2010 sets out the correspondence which was exchanged between the parties in relation to this matter in September 2008 and slightly beyond. On 11 September 2008 Mr Peter Huston of Fortescue Metals Group, wrote to Mr Michael Meegan, Principal Legal Officer of YMAC, indicating that they accepted that Mr Singh did have a duty of confidentiality to certain client groups for whom he had acted during his employment with YMAC. He specified that matters relating to three of those groups, not including the current native title party, were areas in which Mr Singh may have been exposed to confidential information and undertook not to involve himself in any dealings relating to. Then Mr Huston stated:
Fortescue does not propose to utilise Mr Singh in circumstances relating to .... native title claim groups where there may be an actual or possible risk that Mr Singh may disclose or make use of confidential information which he may have acquired as a result of his employment with the PNTS.
In all other matters, Forescue intends to fully utilise Mr Singh’s services.
(Annexure SS1 - Affidavit of Sukhpal Singh sworn 18 October 2010)
On 6 October 2008 the Principal Legal Officer of YMAC, Mr Michael Meegan, wrote to Mr Huston, indicating that it was his view that Mr Singh had acted for seven additional native title groups including Njamal, the current native title party, in negotiations between them and BHP Billiton Iron Ore (BHPBIO) and went on to assert that consequently Mr Singh could not directly or indirectly disclose any such confidential information that he had been provided with or use it in any way detrimental to the client concerned or disclose the content of any brief or instructions to any person (Annexure SS2 – Affidavit of Sukhpal Singh). Apparently, in response to this letter, the grantee party then briefed a barrister at the Western Australia Bar to give them advice in relation to the letter. On 11 November 2008 Mr Huston wrote to Mr Meegan indicating the following:
We have now taken advice from Counsel on the issue in question regarding Mr Singh’s employment with Fortescue Metals Group Ltd.
Accordingly, we advise that Fortescue intends to continue to engage Mr Singh to act as a representative for Fortescue, and will do so in a manner which will ensure adherence to all legal and professional obligations.
(Annexure SS3 to Affidavit of Sukhpal Singh)
Mr Singh, in his affidavit, suggests that the advice, which was not attached to his affidavit, indicated that:
There is no sensibly arguable case for me being restrained as a result of my involvement with the NTP.
(Sukhpal Singh Aff, at 24)
It appears that the native title party, or YMAC, did not take the matter any further after that. Mr Singh makes no reference to any further correspondence, nor was any such correspondence discovered or provided amongst the documents given to the Tribunal by the native title party at 17 November 2008.
In relation to the current negotiations, it would appear that the first direct contact between a YMAC employee on behalf of the native title party and Mr Singh on behalf of the grantee party, occurred on 19 January 2010 when Mr Rodney Nichol, a senior solicitor at YMAC, emailed Mr Singh and Ms O’Neill in relation to the question of the commencement of negotiations and a response to a mining access agreement which had been provided by the grantee party to the native title party in December the previous year (Affidavit of Maimbo Chilala affirmed 1 September 2010 at para 8 and MC4; GP Statement of Facts No. 11; GP List of Documents No. 13). Mr Nichol continued to correspond by letter and email with Mr Singh until 1 February 2010. Up to that point there had been no reference to any suggested conflict which Mr Singh might possess as a result of his previous employment or representation of the native title party.
The matter was first raised by Mr Mathews in an email on 2 February 2010 where Mr Mathews alleged Mr Singh had conflict of duty (see grantee party’s Statement of Facts at 17 and grantee party document 19, a portion of which forms part of Annexure MC5 to the affidavit of Maimbo Chilala affirmed on 1 September 2010).
As can be seen from the grantee party’s documents 21-23, 25, 30, 31, 34-38 and from the content of the Chilala affidavit, the grantee party, represented by Mr Singh and Mr Blair McGlew, and the native title party, represented by Mr Mathews, continued to debate the matter relating to Mr Singh’s alleged conflict of duty throughout February up until the time of the 5 March meeting. The general tenor of this correspondence was to the effect that Mr Singh indicated that he would not preclude himself from these negotiations as requested by the native title party (see GP docs 19-23) and similarly, Mr Mathews, on behalf of the native title party, maintained that Mr Singh should do so and concluded many of his communications with the sentence:
The Njamal People reserve all their rights in relation to the issue of Mr Singh’s conflict of interest.
(GP doc 24)
On 15 February 2010, Mr Mathews wrote to Mr Singh indicating that he had not had an opportunity to obtain instructions in relation to the matter because:
As Mr. Singh is well aware, the Njamal People are not able to be involved in native title meetings at this time of the year because of their obligations to attend Law ceremonies...We are concerned that Mr Singh is using his knowledge of confidential information relating to the Njamal People’s involvement in Law to further FMG’s position in this negotiation.
(GP doc 33; MC10 to Chilala Affidavit)
On 17 February 2010, Mr Singh wrote to Mr Mathews, indicating that in light of recent emails, it appeared that YMAC continued to be opposed to his representing FMG at the proposed 5 March 2010 meeting. Mr Singh indicated he would be attending and representing FMG at that meeting ‘unless otherwise prohibited’ and went on to say:
If Njamal are not prepared to meet with FMG while I am FMG’s legal representative, this must be communicated to FMG in advance of the meeting, in which case FMG will consider its position. If Njamal adopt this position but do not communicate it until the day of the meeting, please be advised that FMG will withdraw its attendance in full and will not accept any cost for the meeting. Further, FMG will seek recovery of any payments made to YMAC in relation to the meeting.
We therefore ask that you seek your clients instructions on the issue in advance of the meeting and advise us accordingly. If that cannot be done prior to 5 March 2010, then you should either change the meeting date to enable you to take instructions on the issue or be prepared to accept responsibility for any costs incurred.
We look forward to your urgent response.
(GP doc 35; MC13 to Chilala Affidavit)
On the same day Mr Mathews responded to Mr Singh’s letter, advising that they would not be able to take instruction on 5 March and continuing to oppose Mr Singh’s representation of FMG in the matter (GP doc 43; MC14 to Chilala Affidavit). Further, on the same day, Mr McGlew wrote to Mr Mathews, indicating that Mr Singh had Mr McGlew’s full support and reiterating that the grantee party would not accept liability for any costs and will seek to recover such payments if the meeting does not go ahead on that day (GP doc 38). Otherwise, during this time, the parties had agreed on payments which would be made by the grantee party - to fund the meeting on 5 March and also to pay for the costs of an independent expert, Mr Murray Meeton.
At paragraph 23 of the native title party’s contentions, it is suggested that the grantee party acted unilaterally in attempting to obtain from the native title party a waiver of their rights in relation to the conflict of duty issue. They cite as an example of such behaviour the fact that the grantee party had advised the native title party that it would withdraw funding for negotiation meetings and recruit monies made already if the Njamal People did not accept representation of the grantee party by Mr Singh and it cites the affidavits of Mr Ian Taylor (at 17) and Ms Eaton (at 20) (there is a further reference to unilateral conduct in paragraph 100 of the native title party’s contentions). In Mr Taylor’s affidavit (at 17) he says the following:
Mr. McGlew said words to the effect that he was “the chief negotiator” and it was his job to “make the deal with the Njamal People”. However, he also said that “if the Njamal People decide not to have Mr. Singh in the meeting, then FMG will withdraw from the meeting and seek to recover any monies already paid to Njamal and YMAC [sic].
At paragraph 20 of Mrs Eaton’s affidavit, she said:
I felt that we didn’t have a choice but to accept Mr Singh’s presence in the negotiations. FMG said they would not continue the meeting if we asked for Mr Singh to leave.
In the grantee party contentions (at 4.9(1)) it is said that Mr McGlew’s response and behaviour at the meeting was entirely justified on two grounds. Firstly, the grantee party had agreed to pay $29,452.17 to fund the meeting of 5 March (GP fact at 30) and had paid 50% of that in advance. Further, as has already been referred to above, Mr Singh had written explaining to Mr Mathews on 17 February 2010, the circumstances under which that meeting would be conducted. It is clear from the letter that Mr Singh sent that the native title party, through Mr Mathews, was invited to raise the issue of Mr Singh’s attendance at that meeting, squarely at that point, some weeks before. The option was given for the native title party to indicate that they would not proceed with the meeting without first obtaining instructions about the presence of Mr Singh and the grantee party offered that the meeting could be deferred in order to accommodate that process. The simple point was made that if the refusal to meet with Mr Singh, by the native title party, was raised on the 5 March and consequently prevented the meeting from proceeding, it would be in that circumstance that the grantee party would proceed to recover its money. It seems to me that this is a reasonable explanation of what occurred. There was no demand from the grantee party that there be a waiver of the alleged conflict, which is consistent with the proposition that the grantee party and Mr Singh had continually asserted, to the effect that there was no conflict of interest or duty to waive. Secondly, it was not unilateral behaviour in that it gave the native title party an opportunity to clarify its position before the meeting took place. The situation was one that could be characterised by the grantee party not wanting to be in a position where the costs that it had invested in the meeting were effectively thrown away.
The native title party has provided four affidavits from participants in the meeting of 5 March, which, amongst other things, are said to indicate that Mr Singh did, in fact, have a conflict of duty, was in possession of confidential and privileged information and that his behaviour, during the course of that meeting, confirmed that assertion.
The native title party presented a considerable body of evidence in relation to the meeting which took place between the native title party and the grantee party on 5 March 2010. Ms Chilala, in her affidavit sworn on 1 September 2010, asserts that upon arrival at the meeting, she witnessed a conversation between Mr Singh, Mr McGlew and Mr Barry Taylor, a member of the native title party claimant group. Ms Chilala deposes that Mr Barry Taylor said to Mr Singh:
“You supervised Rainer Mathews when you worked for the PNTS and the Njamal People think you have a conflict of interest. Can you explain to us why you don’t think you have a conflict of interest [sic]”.
To which Mr Singh allegedly replied:
“In the three years that I worked for PNTS I was never the Njamal claim lawyer. I do not have any confidential information about Njamal. I attended one or possibly 2[sic] BHP meetings with Njamal” (pointing at Mr Mathews and raising his voice), “That bloke has been the Njamal Lawyer since 2007.
(Chilala Aff at 11)
Ms Chilala also deposes to the fact that at the commencement of the meeting she witnessed Mrs Doris Eaton, another member of the native title party group, say to Mr Singh and Mr McGlew:
As the DPLO you had supervision of lawyers on the ground and information travels upwards, you would have been informed of what was going on with Njamal. How can you say you don’t have information about us now.
To which Mr McGlew purportedly replied:
I don’t think Sukhpal has any confidential information about Njamal. I am the negotiator here and it is my responsibility to make the deal.
(Chilala Aff at 11)
Subsequently, the evidence of Ms Chilala is that, after leaving the room, Mr Singh and Mr McGlew returned and Mr Rodney Nichol, a solicitor with PNTS said to them words to the effect that the Njamal People reserved their right in relation to the conflict of interest issue but they were prepared to negotiate in good faith and would allow Mr Singh to sit in on the meeting on the following conditions:
i)Njamal People reserve their rights in relation to the conflict of interest issue with Mr Singh;
ii)The Njamal People are not waiving any confidentiality on confidential matters relating to the Njamal claim which are known to Mr Singh;
iii)Mr McGlew being the lead negotiator;
iv)An acknowledgement by FMG of the Njamal People’s continued engagement with FMG in these circumstances that it is an expression of good faith.
(Chilala Aff at 14)
Ms Chilala further deposes that the meeting then proceeded with discussions taking place, albeit that the financial adviser, Mr Murray Meeton of Economic Consulting Services, advised them in relation to the offer to the following effect:
This could be the lowest offer I have seen made by a mining company for such a project. In fact it is unacceptable.
(Chilala Aff at 15)
The native title party filed three other affidavits from people who attended that meeting. They were the affidavit of Doris Eaton affirmed on 31 August 2010, the affidavit of Tony Taylor affirmed on 25 August 2010, and the affidavit of Ian Taylor affirmed on 31 August 2010. There was no affidavit filed by Mr Barry Taylor in relation to this matter and while I do not completely discount the evidence of any of the others as I am not bound by the rules of evidence, I note that the evidence of what Mr Barry Taylor said would have been of much greater assistance if it had been deposed to by Mr Barry Taylor.
Mrs Eaton attests to the fact that she had met Mr Singh in the PNTS office some years ago when he was introduced to her and other members of the YMAC Board (Doris Eaton Aff at 10). At paragraph 12 of her affidavit she deposes to the following effect:
Mr. Singh attended at least one Njamal Working group negotiation meeting with BHP. He represented us at that meeting. There may have been more Njamal meetings that he attended but I am not sure.
What is significant about the above paragraph and paragraphs 10 and 11 of the affidavit is that there is no assertion at that time that Mr Singh was the Njamal lawyer, nor that he represented them other than in the group negotiation meeting with BHPBIO. Notwithstanding that, in paragraphs 13 and 14 in relation to the 5 March meeting, she expresses surprise that Mr Singh was in attendance and concern that ‘our lawyer’ could be working for a mining company against us. She was especially concerned because he would know how the Njamal People worked and that:
... he knew a lot of things about us, including how we negotiate because he acted for us on a number of matters.
(Doris Eaton Aff at 14)
This is said notwithstanding the fact that Mrs Eaton can only recollect Mr Singh attending one Njamal Working Group meeting in relation to BHPBIO. At paragraph 15 of Mrs Eaton’s affidavit, she quotes Mr Barry Taylor as saying:
The Njamal People think you have a conflict of interest and you should not be representing FMG against us. Do you think you have a conflict of interest?
Mr Singh replied:
No I do not.
This statement differs from what Ms Chilala (at 11) suggested Mr Barry Taylor said in that it makes no reference of his supervision of Mr Mathews. And the response that Mrs Eaton recounts is different from the response that Ms Chilala recounts. Mrs Eaton (at 16) goes on to say that she was shocked by this answer because:
He knows confidential information about us and now he is acting against us.
She then says (at 17-19) that in her view Mr Singh behaved rudely and disrespectfully towards the Njamal elder. She deposes (at 20) to the effect that she felt she did not have any choice but to accept Mr Singh’s presence because FMG said they would not continue the meeting if they asked Mr Singh to leave. She suggests (at 21) that FMG made an offer which their economic adviser, Mr Meeton, indicated was very low. She goes on to depose:
I think that the reason they did this is because Mr. Singh knew so much about our private matters that FMG thought they could walk all over us.
Mrs Eaton deposes to the following effect (at 22):
Every time we try to negotiate about something, it felt like FMG already knew what we were going to ask before we even asked it. It felt like they had made up their minds to say no even before we asked the question.
It is notable that Mrs Eaton makes no reference to the interaction between herself and Mr McGlew, which is referred to in the affidavit of Ms Chilala. In consequence of that, it is my view that I cannot rely on the evidence put forward as to what was said by Mrs Eaton in Ms Chilala’s affidavit as Mrs Eaton has not said it herself. I am not sure much turns on that exchange, in any event, as the statements are consistent with the positions of the parties in relation to the stance they took at the meeting
The affidavit of Mr Tony Taylor is to the effect that he had seen Mr Singh in the South Hedland Office (at 10). He also deposes to the fact that he recalls him attending the Njamal Working Group meeting with BHPBIO at Pundalmurra and goes on to say:
I think he may have come to a few other meetings (one or two) but I am not sure.
He expresses similar surprise and concern as Mrs Eaton when he was told by the lawyers that he (Mr Singh) was now working for FMG because:
It is like he changed sides. Now he was working against us when he used to be our lawyer for some things.
He indicates (at 14) that Mrs Eaton asked Mr Singh:
How he could be working against the Njamal when he acted as our lawyer in some things and also supervised Rainer when he was a junior lawyer.
Mr Taylor says that Mr Singh responded to Mrs Eaton’s question by saying he was not the Njamal lawyer and never supervised Rainer. He then goes on to say:
However, I remember him coming to at least one Njamal meeting where he acted as our Lawyer. I remembered that he used to be Rainer’s boss when Rainer was a junior lawyer.
He deposes (at 17-19) that Mr Singh then became upset and started pointing fingers at people. He says that during the course of the negotiations Mr Meeton indicated that the offer of the grantee party was one of the lowest that had ever been put on the table (at 20).
It is again notable that the evidence of Mr Taylor in relation to the questioning of Mr Singh by Mrs Eaton is not deposed to by Mrs Eaton in her affidavit.
In the affidavit of Mr Ian Taylor, he indicates that he, in fact, asked Mr Singh:
Should you be acting against the Njamal People considering all the confidential information you know about us?
To which Mr Singh responded:
I was never the Njamal Claim lawyer. I do not have any confidential information about the Njamal people.
He then repeats the question of Mr Barry Taylor to the following effect:
We think you have got a conflict of interest and we don’t think you should be representing FMG in these negotiations. Do you think you think you have a conflict of interest?
To which Mr Singh allegedly responded:
No I do not have conflict of interest; I was never the claim lawyer and I don’t hold any confidential information about Njamal.
Mr Ian Taylor deposes that Mr Singh became agitated and upset and that his conduct was disruptive (at 13-17). Mr Taylor (at 21) deposes that he felt that the presence of Mr Singh gave FMG an unfair advantage. He could not negotiate freely (at 21). He confirms that they were advised by Mr Meeton that the FMG offer was one of the lowest he had ever seen put on the table (at 22) and suggests that the reason such a low offer was made was because:
Mr Singh knew a lot of things about us even what our other agreements said; he would have known generally what Njamal are prepared to accept.
Paragraph 23(ii) of the native title party’s submissions alleges that the grantee party has asserted on various occasions that Mr Singh has never acted for the Njamal People and had not been privy to confidential information about the Njamal People and then proceeds to cite the affidavit of Ms Chilala, Mr Ian Taylor and Mrs Eaton. As the grantee party points out in its contentions (at 49.2) the grantee party denies that it has ever asserted that ‘Mr Singh has never acted for the Njamal People’ and they say that what Mr Singh is reported to have said in the affidavit of Ian Taylor was that he was not the ‘Njamal claim lawyer’; in the affidavit of Mr Tony Taylor that he was not the ‘Njamal lawyer’; and in the affidavit of Ms Chilala that he was not the ‘Njamal claim lawyer’. The grantee party notes that there is material difference between the contention that Mr Singh claimed to never to have acted for the Njamal People and Mr Singh claiming never to have been the Njamal claim lawyer. There is no dispute on the evidence (NTP Annexures 1-5) that Mr Singh was ever assigned as the Njamal claim lawyer and neither has Mr Singh denied that he acted on behalf of Njamal in the BHPBIO negotiations. The affidavits also make reference to the allegations that Mr Singh supervised Mr Mathews in his capacity as the Njamal claim lawyer. In Mr Taylor’s affidavit he suggests that he recalls Mr Singh supervising Mr Mathews when he was a junior lawyer and that he remembered Mr Singh as Mr Mathews’ boss when he was a junior lawyer (at 14-15). He also records Mr Singh’s denial that he had ever supervised Mr Mathews. Ms Chilala’s affidavit records that Mr Barry Taylor alleged that Mr Singh had supervised Mr Mathews but in his alleged response, Mr Singh does not appear to address that issue, only referring to the fact that he attended one or possibly two BHPBIO meetings with Njamal.
It does not seem to me that any of this evidence adduced in these affidavits is particularly compelling or sheds a great deal of light on the true nature of the situation. The deponents assert various things were said and put to Mr Singh and Mr Singh denied them or did not accept them. The evidence is, to a certain extent, inconsistent in that some affidavits say that some things were said by another deponent who does not say that thing in their affidavit. The affidavits of Mr Ian Taylor and Mr Tony Taylor would have corroborated what was said by Mr Barry Taylor, if an affidavit from Barry Taylor had been received, which it was not. I agree with the contention of the grantee party (at 4.2, 4.9(a-c)) of their contentions that there is nothing in the evidence of Ms Chilala, Mrs Eaton or Mr Taylor which contains any factual basis for the assertion that Mr Singh was, in fact, privy to confidential material other than what may have been in his possession as a result of his acting on behalf of the Njamal People in relation to the BHPBIO negotiations, which he agrees he attended at least one or possibly two meetings on behalf of the Njamal People.
The documents which have been provided by the native title party in support of its assertion of Mr Singh’s conflict of duty, in many respects, have proven most useful in the assessment that I must make in relation to the assertion of Mr Singh’s alleged conflict of duty and whether that conflict of duty, and Mr Singh’s continued participation, constitute a failure by the grantee party to negotiate in good faith in this matter. As has been set out above, a number of these documents have been the subject of s 155 orders and others, which have not been the subject of such orders, have been the subject of a request from the native title party to treat them with discretion. I will attempt to do this.
a)Annexure 1 is a list of staff assigned to the various claims throughout the Pilbara as of 27 April 2006. In that document Mr Singh is listed as the ‘regional claim lawyer’ for six claims, including the native title party. The document also notes that the ‘claim lawyer’ for the native title party is Christina Araujo.
b)Annexure 2 is a similar document which again assigns staff to functions in relation to particular claims, in this case, as of 29 August 2007. The document identifies the claim lawyer for the native title party to be Mr Rainer Mathews and under the heading of ‘Future Acts Lawyer (FAL) and/or Assisting Lawyer (AL)’ there are three names listed: Rainer Mathews, Shaz Rind, Sukhpal Singh. It is unclear to me what this document can be used to establish, other than Mr Singh might either be characterised on a future acts lawyer or an assisting lawyer in concert with two others.
c)Annexure 3 dated 14 November 2007 is a similar document. Again, Mr Mathews is listed as the claim laywer, but this time the same three lawyers, as listed in Annexure 2, are listed under the Future Act Lawyer/Assisting Lawyer heading, but all three lawyers have ‘FAL’ beside their names which, according to the heading of the section, means future act lawyer. This document indicates to me that while Mr Mathews was the claim lawyer as of 14 November 2007, Mr Mathews, Mr Rind and Mr Singh were future act lawyers for that claim.
d)Annexure 4 is another claim allocation list dated 5 December 2007 assigning roles to personnel and in this document there is a new set of columns. This time Mr Mathews is characterised as the lawyer of the native title party. Under the heading of Assistant Lawyer are the names of Mr Singh and Mr Mathews and under the heading of Future Act Assisting Lawyer the same three lawyers are listed, each with the words FAL or Future Act Lawyer in brackets beside their names.
e)Document 5(A) is a series of emails in December 2006 going between the NNTT: Mr Ken Green on behalf of Moly Metals, and YMAC in relation to negotiations between Moly Metals and Njamal, the native title party in this matter. Mr Singh is copied into these matters, although the principal contact for the native title party appears to be Mr Rhys Davies. There is a reference in an email of 27 November 2006 to the fact that the Moly Metals solicitor was awaiting information from Mr Singh in relation to whether or not one of the Njamal people, who had been refusing to sign the document, would be signing in the future. It would appear that this occurred in circumstances when Mr Davies was away.
f)Document 5(B) is the subject of a s 155 order. It involves a tactical discussion which may constitute legal advice and is confidential. It is from Carolyn Tan and was addressed to a range of people including Mr Singh, Mr Mathews, Mr Davies, Mr Robin Stevens, Ms Jodie Neale (who I understand to be an anthropologist) and Mr Simon Hawkins who is a CEO of YMAC. It is headed ‘red category’, a term which I do not know the meaning of, but can infer that it is a matter of some consequence and delicacy. The subject matter of the material contained in the letter relates to a negotiation between the native title party and Moly Metals, and relates to internal difficulties within the Njamal group. The solicitor for Moly Metals in that matter, who is the subject of some of the discussion in the communication, is Mr Ken Green. It is notable that the email from Ms Tan to that group of people does not seek, or suggest, Mr Singh do anything. The suggestions in relation to the activities are that certain actions be carried out by Mr Davies, Mr Mathews and Ms Neale.
g)Annexure 5(C) again is a document protected by a s 155 order. It consists of an email exchange between Mr Dennis Jacobs addressed to Mr Mathews and Mr Nichol dated 15 May 2008 and copied to Mr Singh, Mr Rind, Mr Meegan and Ms Tan concerning Consolidated Iron. The balance of the document consists of Mr Mathews’ reply on 19 May addressed to Mr Jacobs and Mr Nichol and copied to Mr Singh, Mr Rind, Mr Meegan and Ms Tan. It relates to internal difficulties within the Njamal group in obtaining signatures to a consent determination. It makes reference to advice obtained by Mr Jacobs from Mr Meegan and Ms Tan to Mr Mathews’ response which does not indicate any involvement from Mr Singh, albeit that clearly he was privy to this communication.
h)Annexure 6(A), dated 17 May 2006, is an email from Mr Jeremy Ryan to Mr Singh and Ms Araujo, copied to Ms Helen Lawrence regarding Mr McPhee, a member of the Njamal applicant group at the time. Mr Singh replies to Mr Ryan, Ms Araujo and Ms Lawrence the following day, 18 May 2006, indicating that he had met with Mr McPhee and the meeting had not gone well.
Annexure 6(B) consists of an email report from Mr Singh to Ms Tan, Mr Mathews and Mr Meegan on the fact that he had appeared before a court directions hearing in relation to Ngarla, Njamal and Warrarn before Bennet J. The email itself is confined to observations in relation to the forthcoming Ngarla/Warrarn trial and does not mention any Njamal matter.
j)Annexure 7, dated 18 September 2007, is an email from Mr Singh to a range of PNTS staff, including Mr Mathews, in relation to confidentiality of BHPBIO negotiations where Mr Singh simply seeks to remind parties that discussions were highly confidential. There is no reference in that email to Njamal.
k)Annexure 8, dated 25 August 2008, is an email from Mr Mark Donovan of BHPBIO to Mr Stephen Wright, a barrister acting on behalf of YMAC, copied to Mr Singh which seeks to advance discussions in relation to BHPBIO negotiations which concern Njamal. On 17 October 2008, Mr Wright sent an email to Mr Nichol and Mr Mathews indicating that he had followed up on Mr Donovan’s letter. It is notable that Mr Wright did not include Mr Singh in that response.
l)Annexure 9, dated 13 November 2006, is a redacted document which, from its heading, indicates that it is a legal practice management meeting at which Mr Singh and various other senior lawyers, but not Mr Mathews, attended. The whole of the document is redacted save for one section which says:
Gaps in the Pilbara:
Actions: Rhys to hand over Njamal s 66B to Caroline;Sukhpal to take over conduct of FMG from Rhys.
Again, I am not sure what the import of those statements might be. It is apparent from earlier documents that Mr Davies was leaving the employ of YMAC in March of the following year, but from that it is not clear whether Mr Singh was being asked to take over FMG negotiations from Mr Davies concerning FMG in relation to Njamal or some other claim.
m)Annexure 10, dated 7 May 2007, is an email from Mr Rind to Mr Mathews, copied to Mr Singh regarding the subject of Njamal and FMG. It indicates to Mr Mathews that Mr Rind has taken the matter over from Mr Singh. The possible import of this document in conjunction with document Annexure 9, is that Mr Singh had control of the Njamal FMG negotiations between 13 November 2006, or whenever Mr Davies left, and 7 May 2007.
n)Annexure 11 is again a redacted document which is headed Excerpt from Legal Practice Management meeting of 2 April 2007. The unredacted sections involve Mr Mathews discussing negotiations between FMG and Njamal where Mr Singh appears to caution Mr Mathews to make sure no mining leases are rolled up in the tenements being discussed, and at a later point Mr Singh making reference to Baosteel, a reference, no doubt, to the fact that Baosteel was a joint venture partner of the grantee party in other matters. There is a final statement in the document which says ‘Michael: can Rainer put information to Sukhpal’. The best I can honestly draw from that document is that it was suggested that a junior lawyer should consult with a senior lawyer before taking steps in matters which had been assigned to him.
o)Annexure 12, dated 22 May 2007, is a document protected by the s 155 order. It is essentially a memorandum from Mr Mathews but it is not addressed to anyone. It addresses a range of issues concerning the Maincoast, FMG/Njamal negotiations, setting out the history of the matter and proposing steps. Although it is set out as a memorandum, the attached email dated 30 April, seems to suggest that it is a proposed draft of a letter to FMG and seeks comments. It is addressed to Mr Ryan, Mr Meegan, Ms Tan, Mr Singh and Mr Cvitan. There is a further version on 8 May. The version of the memorandum is dated 22 May 2007 and the final email which is from Mr Mathews to the same series of individuals indicates that he has discussed the matter ‘with a couple of you’ and says they need to act quickly. There is no indication that Mr Singh responded to Mr Mathews’ invitation to comment.
p)Annexure 13, dated 23 May 2007, is an email from Mr Singh to Mr Rind, Mr Mathews and Mr Meegan. It indicates that Mr Blair (McGlew) from FMG:
just rang me to mention that these tenements are in the Tribunal on Friday and asked if we would have a position on these by then & I said it was in current deliberations here. cheers. sukhpal [sic].
It is entirely unclear to me what the native title party seeks to prove through this document other than that Mr Singh received a phone call and conveyed it on to other senior lawyers and the Njamal claim lawyer. There is no suggestion that the tenements he is talking about are in fact tenements which are relevant to the current native title party.
q)Annexure 14 is a redacted document which discusses some current practices and possible solutions to difficulties which may have existed inside the charitable and discretionary trusts of native title claimants in the Pilbara. There is a reference at dot point 4 on the first page to the current trusts for Njamal, but it is not clear what that reference means, and there is an email coming from Mr Mathews to Mr Ryan dated 19 December 2005 suggesting that they will discuss these matters.
r)Annexure 15 was withdrawn.
s)Annexure 16(A) is a redacted document which consists of a series of emails between Dennis Jacobs and Catherine McGleesh and Mr Mathews which are all copied to Mr Singh. They refer to the Wedgetail negotiations with the native title party.
t)Annexure 16(B), dated 10 March 2008, is an email from Mr Singh to Mr Jacobs, Mr Mathews and Ms McGleesh re the Wedgetail negotiations. In that email Mr Singh indicates that he will be writing soon to Wedgetail in relation to both Njamal and Palyku, drawing their attention to the need to negotiate a new agreement in relation to Millenium (the new name for Wedgetail).
u)Annexure 16(C) involves an exchange of emails including one from Mr Singh to Mr Jacobs and others re Wedgetail Heritage Surveys, a series of other emails between Mr Jacobs and representatives of Wedgetail and finally an email from Mr Singh on 25 March 2008 to Mr Mathews, indicating Mr Singh’s intention to meet with Wedgetail to discuss the next steps in relation to a request for a new agreement. Also attached to that is a memorandum from Millenium addressed to Mr Dennis Jacobs dated 20 March 2008 suggesting that there was no need for a new negotiated agreement, and a letter addressed to Mr Singh from Mr Andrew Law, the managing director of Millenium Minerals, which is redacted, but which suggests that there is no need for the negotiation of a new agreement with either the Palyku or the Njamal People. There is also a Certificate of Registration of Change of Name from the Australian Securities and Investment Commission to the effect that on 7 March 2008 Wedgetail Mining Limited changed its name to Millenium Minerals Limited.
Now that we have completed a survey of the native title party’s evidence that has been filed in relation to the assertion that Mr Singh had a conflict of duty, it is worth noting what evidence we have not received. It does not appear to me that there has been any evidence adduced which identifies any specific circumstance where Mr Singh can be shown to have acted for the native title party in the sense of being provided with instructions, providing advice or indeed given direction to another lawyer, ie the claim lawyer, in relation to Njamal. There is evidence which, as I understand it, is accepted by Mr Singh and the grantee party that Mr Singh acted on behalf of Njamal in relation to Pilbara-wide negotiations with BHPBIO. Mr Singh has indicated, and the evidence given by Mrs Eaton, Mr Tony Taylor and Mr Ian Taylor seems to indicate that that undertaking involved one, and possibly two, meetings between the Njamal Working Group and BHPBIO. All the parties are able to identify one meeting which took place at the Pundalmarra College, but none of them can identify any further meeting with precision. It is noteworthy that amongst the documents provided by the native title party, none are to be found which relate to the substance of Mr Singh’s involvement with Njamal in relation to BHPBIO. There are no minutes of meetings or correspondence between BHPBIO and Njamal which were authored by Mr Singh or any other indication of the nature of Mr Singh’s involvement with Njamal in relation to those BHPBIO negotiations. Similarly, there is no direct evidence of the fact of Mr Singh providing actual supervision to Mr Mathews in the course of his representation of the native title party. On the other hand, and again consistent with the evidence of Mr Singh, Mr Singh has been privy by way of being copied into emails relevant to Njamal and attending meetings relevant to the progress of that claim (albeit in the context of regional assessments) and he does appear to have conducted, on behalf of Njamal, some peripheral matters such as finalising the execution of documents or the lodgement of documents and making enquiries of a company (Wedgetail / Millenium) as to the necessity of the further negotiation of agreement on the basis of an expansion of the category of mineral which was to be explored for and/or extracted.
Mr Singh swore an affidavit in this matter, on the 18th October 2010. In his affidavit at [3] he states that he recalls working on a number of claims, listing four particular matters, and indicates that:
I do not recall materially working on any other native title claims whilst in South Hedland. Mr Ryan may have allocated to me other native title claims as an ‘assisting lawyer’ or ‘secondary lawyer’, and I may have worked on those claims in some minor or incidental way, but I do not recall doing so.
At [4], Mr Singh indicates that he recalls working on two mining company negotiations while he was in South Hedland, and goes on to add:
I do not recall materially working on any other company negotiations whilst at YMAC South Hedland Office. I may have worked on other mining company negotiations in some minor or incidental way, but I do not recall doing so.
At [5] of his affidavit, Mr Singh indicates that he transferred to Perth on the 21 August 2006, and continued in employment with YMAC through to his resignation on the 8 September 2008. He indicates that in 2007 his title changed to Deputy Principal Legal Officer but that while he was in Perth his primary duty ‘was progressing major project negotiations between BHPBIO and various native title claim groups in the Pilbara’.
In response to the affidavit sworn on behalf of the native title party, Mr Singh indicates that he did act for the native title party (along with a number of other native title parties), generally in relation to the BHPBIO negotiation over an approximately six month period. He deposes to the fact that he recalls attending at least one preliminary meeting between the native title party and BHPBIO. He further deposes that after 6 months the negotiations were suspended in relation to the native title party, but continued in relation to other claimants (see 9 of the Affidavit of Mr Singh). Mr Singh further indicates that when he ceased employment with YMAC on the 8 September 2008, he did not retain any documents in relation to his employment with YMAC, and in particular did not retain any documents, physical or electronic, in relation to the native title party. At 11 Mr Singh deposes that he does not know what information the native title party alludes to when it refers to confidential or privileged information of the native title party, and that he:
do(es) not have any current knowledge of any information concerning the native title party which could be described as “confidential” or “privileged”. In making this statement I have considered whether I recall any information associated with the BHP negotiations which could be described as “confidential” or “privileged”.
In Mr Singh’s affidavit (at 12) he refers to paragraphs 24-26 of Mr Mathews’ affidavit. In particular he denies that he has any recollection of any contact between him and FMG in 2007. Further in relation to paragraphs 28-29 of Mr Mathews’ affidavit where he asserts that he had discussed confidential matters with Mr Singh, Mr Singh says he has no recollection of Mr Mathews reporting to him or briefing him. There does not appear to be any evidence in the documents provided to the Tribunal by the native title party of any such written consultation, in any event. In relation to paragraph 32 of Mr Mathews’ affidavit, which may well be also a reference to the redacted document 14 provided by the native title party, Mr Singh indicates he has no recollection of receiving any such information (see paras 17-19 of Mr Singh’s affidavit).
As has been mentioned above, Mr Singh’s affidavit (at 20-26) also addresses the issue of what occurred immediately after he left the employment of the PNTS and joined the grantee party. In his affidavit (at 27-30), Mr Singh addresses the question of the allegation by the native title party that the refusal of the grantee party to reveal the identity of the new external potential joint venture party amounted to a failure to negotiate in good faith. Mr Singh deposes to the fact that at the time he did not know the identity of the new external party, had never been informed of the identity of the new external party, and recalls being told by an executive of the grantee party that the identity of the new external party was of such a confidential nature that it could not be disclosed to Mr Singh (see 30 of his affidavit). At 35 of his affidavit, Mr Singh makes reference to the impact upon him should there be imposed upon the grantee party a restraint in involving him in the negotiations. Mr Singh indicates (at 35) that the only real impact on it would be that FMG would have engaged Mr Ken Green of Green Legal Pty Ltd to conduct the negotiations and that would have imposed a greater financial burden upon the grantee party. That last point made by Mr Singh is obvious but, for the purposes of my consideration, irrelevant.
Mr Singh’s version of events is also corroborated by the evidence provided in the affidavit of Dennis Keith Jacobs affirmed on 21 September 2010 where Mr Jacobs deposes that the lawyer responsible for the negotiations between the native title party and FMG for Glacier Valley was Mr Davies and that, in his experience, Mr Singh was not involved (see paras 8 and 13). Similarly (at 9-12) he indicates that Mr Singh was not involved in negotiations between Njamal and other companies other than in relation to BHPBIO. There is also the affidavit of Mr Peter Woodman who was the CEO of Wedgetail during the course of the negotiations between that company and the Njamal People in 2005 and 2006. In his affidavit Mr Woodman says he never dealt with Mr Singh in relation to the Njamal People. The affidavit of Mr Woodman was affirmed on 9 September 2010.
It is my conclusion that, while Mr Singh acted for the native title party in relation to BHPBIO matters, he did not act for them in any other capacity. He may have supervised Mr Mathews in a formal sense, but I accept the fact, based on the documentary record, that there was no direct supervision carried out over Mr Mathews and, indeed, Mr Mathews preferred the supervision of the other alternatives that were available to him, in particular Mr Nichol and Mr Rind. It does appear that between November 2006 or March 2007 and May 2007 Mr Singh was formally responsible for the negotiations, at least at the supervisory level, between FMG and Njamal in relation to the Glacier Valley project. However, in the documents, which are annexed to the affidavit of Alexa Morecombe, and constitute the full 198 pages of the grantee party’s file on the negotiations, there is no evidence on the grantee parties’ files to suggest that Mr Singh had any significant or substantive involvement at that time. Indeed, in those extensive materials there is one reference to Mr Singh. At page 12 an email from Rhys Davies sent to FMG headed Handover of FMG Matters on 1 March 2007. There is a suggestion that matters related to Njamal People should be directed to Rainer Mathews in the South Hedland office and any overarching land access agreement issues should be directed to Sukhpal Singh.
The native title party filed lengthy submissions in relation to the circumstances in which a lawyer should be restrained from acting against a former client. The native title party contended that there were essentially three circumstances in which a court would restrain a lawyer from acting against a former client (NTP contentions 54-84):
i)where there is a danger of misuse of confidential information (see Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222; [2000] ANZ ConvR 260; [1999] 1 All ER 517; [1999] 2 WLR 215 (‘Bolkiah’), Mallesons Stephen Jaques v KPMG Peat Marwick and Others (1990) 4 WAR 357; [1991] ANZ ConvR 200 (‘Mallesons’), The Law Society of Western Australia Professional Conduct Rules (July 2008 revision rule 6.3, 6.5, 7.6 (rules));
ii)where there has been a breach of duty of loyalty not to act against a former client in the same matter or a closely related matter (see for instance Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501; [2001] VSCA 248 (‘Spincode’), but also note Ismail-Zai v the State of Western Australia [2007] WASCA 150 (‘Ismail-Zai’) per Steytler JA at [23]-[25]); and
iii)where the court has inherent jurisdiction on the grounds of fairness and justice (which would be better put as the court acting under its inherent supervisory jurisdiction) considers that it is necessary to do so in order to ensure the due administration of justice (Ismail-Zai at 19), see (Geelong School Supplies Pty Ltd v Dean (2006) 237 ALR 612; [2006] FCA 1404) (‘Geelong School Supplies’), Spincode, Ismail-Zai, Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 (‘Kallinicos’), State of Western Australia v Ward on behalf of Miriuwung Gajerrong Peoples (1997) 76 FCR 492; (1997) 145 ALR 512; [1997] FCA 585; [1997] WAG 57/97 (‘Ward’)).
The native title party submits that in Bolkiah the court, per Lord Millet, came to the conclusion that the ‘only basis for restraining a lawyer for acting against a former client is the danger of misuse of confidential information’. In that matter the court of appeal overturned the decision in Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831where it had previously been held by the Court that there was no absolute rule in England that a solicitor may not act against a former client in litigation, but that a solicitor would be restrained if such restriction was necessary to avoid a significant risk of disclosure or misuse of confidential information belonging to a former client. Lord Millet in Bolkiah came to the view that that authority placed far too heavy a burden on the former client to establish the circumstances in which his previously engaged solicitor would be restrained. As His Lordship stated:
It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage.
His Lordship went on to say:
I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial.
It needs to be remembered that the subject matter of the material before His Lordship referred to an application by a member of the Brunei Royal Family to restrain an accounting firm which provided auditing and litigation services to a trust owned by the Family and chaired by him from acting in litigation against him. The association between the client and the accounting firm had been going on for several decades, and the firm had acted in many substantial matters for the family member in his own right. The litigation involved many billions of dollars which were allegedly fraudulently misappropriated and addressed the adequacy of Chinese walls which had been established within a large accounting practice.
In Mallisons Ipp J held that a lawyer cannot act against a former client ‘where there is a real and sensible possibility of confidential information being disclosed or used to the detriment of the former client.’ Ipp J also referred to the concept of ‘memories being awakened’ making it clear that what was important in the context of acting against a former client is what information the lawyer obtained during the former client relationship, not what the lawyer may or may not recall subsequent to the determination of the former client relationship. The native title party also made reference to the so-called ‘getting to know you factor’ which is referred to in the case of Yunghanns and Ors v ELFIC Ors Ltd unreported Supreme Court of Victoria 3 July 1998. In that case Gillard J made the following observation in relation to the ‘getting to know you factor’.
The overall opinion formed by a solicitor of his client as a result of his contact may in circumstances amount to confidential information which should not be disclosed or used against the client.
(NTP contentions at 7)
It is notable that the facts of that case involved a relationship between a solicitor and a client which had been ongoing for over 30 years. Further, in relation to the ‘getting to know you factor’ the native title party cites Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78; [2000] FCA 1410 (‘Mintel’). In that matter Heerey J in the Federal Court of Australia observed at [43]:
While I respectfully accept as good law the authorities which have been mentioned (all of which concerned solicitors rather than counsel), these principles of course have to be applied in the particular context of the present case. The brief summary of the complex facts in Yunghanns is sufficient to show how different it is from the present case. In the abstract it may be understandable that there is criticism of lawyers who “change sides”. But that cannot literally mean that once a laywer, be it solicitor or barrister, has acted professionally for a particular client, the lawyer is forever after prevented from opposing that client in subsequent litigation.
Mintel was a case in which a junior counsel had previously acted for a defendant in a matter some five years previously and had allegedly discussed the current matter with his former client before accepting a brief for the plaintiff in the matter. Heerey J found that in the circumstances there was no basis for excluding the junior counsel from the proceedings.
The rules of professional conduct in Western Australia naturally enough enshrine the requirement that a practitioner must not directly or indirectly disclose confidential information he has received from a client in confidence or use it in any way detrimental to their interests, that their duty of confidentiality continues after the relationship of practitioner and client has ceased in circumstances where a practitioner has obtained confidential information. If there is a risk that by acting for a person whose interests may be adverse to that client, the practitioner may disclose that information in breach of his duty of confidentiality, then the practitioner should not act for that person. Those principles are not in doubt; indeed they are the rules governing the profession in Western Australia. The question in this matter is whether there has been such a possession or conveyance of confidential material and whether there is a real risk of disclosure.
The native title party’s contentions (at 67) summarise the established principles in relation to a lawyer being prevented from acting for a client in circumstances where there may be a risk of the divulging of confidential information provided by a former client as follows:
...a lawyer cannot act against a former client where:
i)the lawyer is in possession of privileged and/or confidential information by virtue of having acted for the former client;
ii)the privileged and/or confidential information is or may be relevant to the new matter; and
iii)there is a real risk of disclosure of that information to the new client.
On that basis the native title party asserts that it was unconscionable for Mr Singh to continue to act for the grantee party in negotiations with the native title party in this matter.
The native title party (at 71-78) sets out its contentions in relation to the question of whether a solicitor may be restrained from acting against a former client by virtue of a breach of duty of loyalty. The native title party cites numerous cases as authority for that proposition, including Spincode, a decision in the Victorian Court of Appeal where Brooking JA (at [51]) made the following observation:
To speak of two successive inconsistent engagements might be thought to beg the question whether equity imposes a bar; in the view of the House of Lords [in Bolkiah] there is in this sense no inconsistency. By “inconsistent” I mean only that the solicitor who formerly acted for one client in the same matter now acts in that matter for a client with an interest adverse to that of the former client. In their Lordships’ view, the duty of loyalty largely perishes along with the retainer from which it sprang, the only survivor being that aspect of the duty which protects confidential information. Once the retainer has gone “the solicitor has no obligation to defend and advance the interests of his former client”. But what can be drawn from this last proposition? Once the contract of retainer comes to an end the solicitor does, it is true, cease to have active duties to perform for the former client. But why should we not say that “loyalty” imposes an abiding negative obligation not to act against the former client in the same matter? The wider view, and the one which commends itself to me as fair and just, is that the equitable obligation of “loyalty” is not observed by a solicitor who acts against a former client in the same matter.
I note that this quotation makes reference only to ‘the same matter’, not as in other cases the same or closely related matter. Young J noted (at [24]) in Geelong School Supplies, Brooking JA’s decision had been followed in Victoria but not in NSW, and that it was obiter in any event. In Western Australia, the matter has been dealt with definitively in the judgment of Steytler JA in Ismail-Zai (at [23]) where His Honour stated:
In my opinion, the weight of authority currently supports the proposition that the duty of loyalty does not survive the termination of the retainer. Moreover some of the cases which support the existence of a continuing duty of loyalty seem, in my respectful opinion, to draw no clear distinction between a fiduciary obligation of that kind, on the one hand, and the court’s inherent supervisory jurisidiction to protect the integrity of the judicial process on the other.
The native title party submits that the court has an inherent jurisdiction to prevent a lawyer acting for a former client in circumstances where fairness and justice demand. They cite cases in particular Kallinicos where Brereton J at 76 states:
The test to be applied in this inherent jurisdiction is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice including the appearance of justice.
The cases referred to in this matter, including Dean and Kallinicos, were circumstances where the Court determined that solicitors should not act where they were potential witnesses in litigation before the Court, which may raise an issue of their capacity to be objective when their version of events was likely to be challenged. All of the cases that have been cited refer to the exclusion of a solicitor in circumstances where litigation is on foot or contemplated and the restraint involved the solicitor being prevented from representing a client in those proceedings against a former client. Brereton J cites (at [63]) the observations of Heenan J in Holborow & Ors v Macdonald Rudder [2002] WASC 265 (at [26]), where Heenan J observed:
Consequently when an application is made to restrain a legal practitioner from acting in a cause for reasons other than the risk of disclosure or misuse of information provided to the practitioner in confidence by the former client, it is of importance to identify precisely what obligation towards the former client or to the court may be breached or imperilled by the practitioner acting in the cause or against the former client. This approach is important because, otherwise, there may imperceptibly develop an expectation that the freedom of a client to engage a legal practitioner of his or her own preference, and the freedom of a legal practitioner to act even against a former client, where such of course does not involve any breach of his fiduciary obligations arising from an earlier retainer, is open to adventitious challenge as a means of harassing an opponent in a cause.
In my opinion, the significance of that statement to these proceedings is that, having evaluated the evidence of the native title party, including that contained in the documents provided, I am unable to identify, with precision or otherwise, what confidential materials the native title party says Mr Singh has in his possession and, more particularly, what information there was a risk he would disclose to the grantee party.
The native title party goes on to cite, amongst other authorities, Ward (at 498) where it is suggested that there is a range of circumstances in which a party to proceedings will be prevented from obtaining the legal advisor of its choice in circumstances where the integrity of the judicial process, the interests of justice or the needs to preserve the confidence in the justice system, come into effect. It is to be noted that that matter concerned the question of the gender of the lawyer appearing. Further, the native title party, in its 2 November 2010 submissions, contends that it did, in fact, suffer a considerable detriment as a result of the participation of Mr Singh in its negotiations, but goes on to quote Steytler JA in Ismail-Zai where he was discussing the question of whether a duty of loyalty could be considered a separate limb of the test as to whether a lawyer should act as distinct from the inherent jurisdiction of the court, and came to the conclusion that he could not find any true distinction. He went on to say (at [24]):
I find it difficult to envisage circumstances in which a lawyer who acts in the same or a closely-related matter against a former client will neither be in a position in which there is a real risk of a breach of duty of confidence nor be acting in such a way as to undermine the integrity of the judicial process or the due administration of justice.
In my view, the judge in question was making a point in relation to the fact that the duty of loyalty was, in effect, subsumed into the inherent jurisdiction of the Court, and that he couldn’t envisage cases which would involve a separate category of duty relating to loyalty. The passage should not be read as providing a more ‘radical’ interpretation of the views expressed by Lord Millet or Brereton J. The question that I confront does not challenge received authority in relation to a lawyer acting against a former client in the same or closely related proceeding. The question relates more precisely to whether or not Mr Singh acted for the native title party in any analogous sense to the circumstances described in the cases. This matter involves negotiation in a Tribunal, not litigation in a Court. There has been no substantial evidence adduced which is indicative of Mr Singh having undertaken the activities normally associated with a legal representative, including receiving instructions or providing advice, or any evidence of Mr Singh receiving privileged or confidential information in the course of such activity which is sufficient for me to conclude that he should be excluded from these negotiations.
A reading of the grantee party’s contentions in relation to the question of the characterisation of the law in the native title party contentions (which occurs at 4.14 of the grantee party’s contention) does not seriously seek to take issue with the law, as characterised by the native title party, but distinguishes the circumstances of this matter. The grantee party does make the point that it is essential in circumstances where there is an allegation of a breach of duty which might lead to the exclusion of a former solicitor in a matter concerning a former client that the relevant confidential information be identified with precision. It goes on to quote G E Del Pont in Lawyers’ Professional Responsibility 4th Edition 2010 (at 8.110) to the following effect:
Vague assertions of communications ofconfidential information make it difficult for the court to be satisfied that the information is truly confidential, and capable of being used to the prejudice of the former client. So where the identification of any definable relevant information or risk is “left to conjecture”, an application to disqualify will ordinarily be refused (footnotes deleted).
This point is also made by Heenan J in Holbrow cited above.
The grantee party also contends that the analysis contained in the native title party contentions is relevant to the question where the lawyer ‘intends to act’ not where ‘he has acted’, which is the case in these proceedings. It goes on to contend:
In the circumstances of the inquiry before the Tribunal, regardless of what was the position as at the commencement of negotiations, those negotiations have finished and the only relevant inquiry is whether the alleged confidential information was misused. If it was not then on what basis does the NTP complain?
This contention has considerable force in the context of the cases we have been discussing, however, in the context of a challenge to the good faith of a negotiating party in this sort of matter, I do not think the distinction is pertinent. If it were the case that Mr Singh had a conflict of duty, which he had unreasonably refused to acknowledge, and continued to participate in the negotiations, notwithstanding that the native title party may have lost its capacity to challenge his involvement in subsequent proceedings, it does not alter the fact that his involvement in the negotiations may well have rendered the participation of the grantee party an act of bad faith.
The grantee party asserts further that the native title party has not made any allegations to the effect that Mr Singh has disclosed any alleged information or that the grantee party has misused any alleged information known to Mr Singh. The grantee party contends that if the native title party had an issue with Mr Singh’s involvement they should have, as they were invited to, taken action in the court or a court of relevant jurisdiction to remove him (see GP doc 21). This contention of the grantee party is also of substance. The native title party, in its contentions in reply, points out (at 61-64) that the suggestion that it could have taken action to have Mr Singh removed should not be given credence because such action would not have been conducive to a good relationship between the parties, and allegations were of a serious nature with serious implications for Mr Singh personally. Further they say the native title party does not have the resources to pursue matters of this nature. In my view, that submission is not particularly persuasive for two reasons. Firstly, the native title party did in fact pursue the allegations against Mr Singh, which had a detrimental impact on the relationship in any event. Secondly, it was always open to the native title party, to simply report Mr Singh to the Legal Practice Board of Western Australia on the basis of his alleged breach of the rules, rather than engage in expensive litigation before a Court. Such a report would not have had serious resource implications for the native title party.
The grantee party also contends that the extent of analysis contained in the native title party contentions in relation to the relevant law is not directed to any circumstances which are ‘remotely analogous’ to the circumstances in which the subject of inquiry is a non-litigious matter involving negotiation between two parties. That negotiation took place pursuant to the NTA as distinct from litigation in a court between two rivals where the outcome is to be determined by an arbitrator.
At 73-77 of the native title party’s contentions there is an argument that the special circumstances of the NTA dealing with the ‘most disadvantaged group in Australian society’, and the general remediative effect or purpose of the Act, should mean that native title parties in these circumstances are deserving of greater protection than such a duty would normally require. Holbrow was a matter relevant to native title proceedings. In that case there was an application to prevent a solicitor who had formally acted for the native title party, but did not intend to act for them in those proceedings, to be restrained from having any contact or imparting any information to them during the course of the proceedings. Heenan J refused the relief sought on the basis that he did not believe it appropriate to restrain a solicitor from conduct outside of the litigation process, but importantly made no reference to any special circumstances which might affect the Court’s decision in relation to such restraints which involved matters relevant to the NTA.
This matter, in the negotiation phase, was not referred to the Tribunal pursuant to s 31(3) and, in consequence, the Tribunal had no participation in the process of negotiation. The NTA provides that in the conduct of a mediation the Tribunal has a limited capacity to exclude party’s representatives from a conference, specifically pursuant to s 94E. The member conducting a mediation may direct a person not to attend a conference if:
a)a party, or a party’s representative, at a conference is disrupting or hindering the conference; or
b)excluding a party, or a party’s representative, from a conference would help to resolve matters.
There is no such capacity provided in the section of the NTA dealing with the conduct of either mediation, pursuant to s 31(3), or inquiries by the Tribunal, pursuant to s 39-149A.
As can be seen from the survey of the legal principles relating to the question of whether a party has negotiated in good faith, there has not previously been a matter where it has been asserted that there has been a failure to negotiate in good faith on the grounds asserted in this matter. The Njamal indicia, which have been referred to, do not list as one of the relevant indicators the question of a breach of a duty of confidentiality of a solicitor to one of the parties participating in the negotiations. That having been said, the Njamalindicia are only indicative factors. The native title party has asserted that the behaviour of the grantee party amounts to a failure to do what a reasonable person would do in the circumstances, which is Njamal indicia xviii, but it would be fair to say that that is something of a catchall factor and one which depends upon the grantee party accepting the fact that the native title party was correct in its assertion that Mr Singh had the relevant conflict of duty.
As the Full Court of the Federal Court said in Cox (at 20):
It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party’s conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of mind as manifested by its conduct in the negotiations.
The Full Court further concluded that in that particular matter where the negotiations had not passed an embryonic stage, an absence of good faith could only be established by a reference to ( at [27]) ‘deliberate delay, sharp practice, misleading negotiation or other unsatisfactory or unconscionable conduct.’ It would appear that the native title party would assert that this was a matter where the unconscionable or otherwise unsatisfactory behaviour of the grantee party would be sufficient to find the breach as required by the Full Court.
It is important to remember that the question I have before me is whether or not the continued involvement of Mr Singh, that took place between the native title party and the grantee party, was sufficient to determine that the grantee party had failed to negotiate in good faith as required by s 36(2) of the NTA. Some of the issues relevant to that discussion are as follows:
i)Was the native title party a former client of Mr Singh? (Is there a distinction between acting as a lawyer for a group of people or providing occasional general advice in a supervisory capacity for a lawyer who acts for a group of people?);
ii)In any event, was Mr Singh in receipt of, and/or privy to any confidential information provided by the native title party which he had a duty not to disclose?;
iii)Did Mr Singh have general information about the native title party, which might be characterised in a category ‘getting to know you’, which created a duty of loyalty in Mr Singh to the native title party?;
iv)Was the matter the subject of this determination and the negotiations between the native title party and the grantee party closely related to earlier negotiations between the native title party and the grantee party (Glacier Valley project)?;
v)Is there a distinction between circumstances in which a solicitor seeks to act against a former client in a litigated matter and circumstances such as these where the former solicitor is employed by a party involved in good faith negotiations as required under the NTA?;
vi)In all these circumstances, if it is the case that Mr Singh had a conflict of duty which required him not to act for the grantee party in relation to negotiations with the native title party, did that amount to a failure to negotiate in good faith by the grantee party in these proceedings?
In my view, the native title party has not established on the evidence that Mr Singh while employed by YMAC had provided advice, received instruction, or received confidential or privileged information other than possibly in relation to the negotiations between BHPBIO. In relation to that matter, there is no evidence that has been provided by the native title party as to the nature of the material provided, which may be privileged or confidential, which Mr Singh received in relation to those negotiations. Neither is there any evidence of any advice or instructions he received from Njamal in the course of that representation. His attendance at one (or possibly two) meetings on behalf of the native title party in relation to BHPBIO is consistent with his evidence, supported by the evidence of Mr Jacobs, that he was responsible for those negotiations across the Pilbara. The native title party has continued to assert that it is ‘obvious’ that Mr Singh had a conflict of duty in that he was previously the native title party’s lawyer and was in possession of confidential and privileged information. The repeated recitation of that assertion is no substitute for the provision of evidence to that effect. I accept that Mr Singh, during the course of employment with PNTS may have been privy to, in the sense that he was copied into communications relating, information which was the privileged and confidential information of the native title party. He has no recollection of receiving such information, or of its nature. If there had been information directed to Mr Singh, to which he provided some response, then in my view, not withstanding his lack of recollection, there may have been grounds for asserting that he did have a duty to the native title party. On any reading of the circumstances the involvement of Mr Singh with the native title party is not of the same category as those referred to in the other ‘getting to know you’ cases, which created a duty of loyalty.
There is no information that the native title party has pointed to which indicated that Mr Singh had any particular insight into the nature of the native title party’s laws, customs or way of negotiating. The suggestion that knowledge of the fact that the Aboriginal people of the Pilbara conduct ceremony over the summer months is well known and not confidential. As has been indicated, I do not believe that in any real sense Mr Singh can be said to have acted for the native title party. In any event, while it may well be argued that the earlier negotiations in relation to the Glacier Valley project involving the grantee party were related to the current negotiations, I haven’t been provided with any evidence to suggest that they were closely related. It is, however, clearly the case that in those negotiations with Njamal, the grantee party was represented by Mr McGlew as a negotiator and Mr Green as the lawyer and it is highly likely, in that context, that ‘those individuals obtained significant information about the way the native title party in this matter approached negotiations of this sort’, indeed they would have had in their position an agreement with Njamal which had been finalised.
The National Native Title Tribunal is not a court and consequently does not have an inherent jurisdiction. I have neither the jurisdiction nor the inclination to venture an opinion as to what a court of competent jurisdiction would find in relation to a question put before it as to whether Mr Singh should act in litigation in relation to proceedings involving Njamal. However, on the basis of the evidence that I have been provided with, in relation to Mr Singh’s previous involvement with Njamal, I cannot conclude that the grantee party has acted unreasonably by involving Mr Singh in the negotiations. On that basis, Mr Singh’s involvement cannot be said to amount to a failure of the grantee party to have negotiated in good faith as required by the Act.
Further basis for allegation of failure to negotiate in good faith
Apart from the question of Mr Singh’s involvement in the negotiations, the native title party contends that the grantee party failed to negotiate in good faith because:
a)it failed to disclose circumstances relevant to the negotiations, including the identity of a new proposed joint venture partner (NTP contentions 23 and 99);
b)the negotiations were done at a very preliminary stage of the project when the scope of the project was unknown (NTP contentions 23).
These matters are addressed at 4.9(3) of the grantee party’s contentions, and have been discussed above at paragraph [54]. In relation to the question of the joint venture partners, Mr Mathews sought details of the new joint venture party on 5 May 2010.
It would be much appreciated if you could provide details of the “new external party to the Project”. Who are they? What will be their involvement in the project? (Joint venture partner? Contractor? Owner? Creditor?).
(GP doc 66)
On 7 May 2010 the grantee party responded by letter declining to provide the details on the basis that it was a sensitive and confidential matter, however the grantee party acknowledged that it was important for the native title party to know who the native title party was negotiating with (see GP doc 67). On 4 June 2010 the grantee party wrote to the native title party indicating that it required security of tenure to progress negotiations with the new external party and that they would therefore need to bring a s 35 application, although they would continue to negotiate towards an agreement (see GP doc 75). As Mr Singh stated in his affidavit, none of the negotiators acting on behalf of the grantee party were aware of the identity of the proposed new joint venture party, and it was unlikely that it would become public until such time as an Australian Stock Exchange announcement had been made. In those circumstances, it is difficult to see how the failure to provide the information to the native title party could amount to a failure to negotiate in good faith.
The other contention of the native title party was that the negotiations had begun at a very preliminary stage, when the Njamal People did not know the true scope of the project. The grantee party denies (at 4.94 of its contentions) that the project was at a preliminary stage of development. Secondly it submits that the obligation to negotiate arises immediately following the Government party giving notice under s 29 of the Native Title Act. The time of giving notice is a matter for the Government. Clearly the grantee party had an obligation to negotiate in good faith for a period of six months, commencing on the date of the giving of the notice by the Government.
Earlier in this decision, reference was made to the evidence given by the witnesses Mrs Doris Eaton, Mr Tony Taylor and Mr Ian Taylor to the effect that their financial advisor Mr Murray Meeton advised them that the financial offer in relation to the agreement proposed by the grantee party was the lowest that he had ever seen. The submission of the native title party was that this may have been because Mr Singh possessed confidential information, which he may have used somehow to form that offer. In the grantee party’s contentions (at 3.5), they set out the course of negotiations between the native title party and the grantee party, over a four month period commencing in March 2010. In that contention, they describe how the parties met on 5 March 2010 at Port Hedland (see GP fax 31 and GP doc 44 and 47), 16 April 2010 at Port Hedland (see GP fax 46 and GP doc 61), 4 June 2010 at Port Hedland (see GP fax 60 and GP doc 75), and on 29 June 2010 at Perth (see GP fax 67 and GP doc 82). Those documents set out the fact that these meetings occurred, that documents were exchanged, that the terms of the agreement, including the compensation, was discussed, that various offers were made, and counter offers put. On the same day as the last meeting on 29 June 2010 the grantee party lodged its s 35 application with the Tribunal. I assume that some of that evidence at least was adduced by the grantee party in order to counter the assertion that the offer made by the grantee party was unreasonably low. I received a letter from the native title party on the 8 December 2010, where they expressed concern that the information contained in the relevant contentions and documents could be commercially damaging if revealed and making it clear that none of the arguments that they advanced in relation to the failure of the grantee party to negotiate in good faith were reliant on the unreasonableness of the grantee’s offers. Consequently, in my view, there is no need to discuss that matter further. I take it that the issue of Mr Meeton’s opinion was put by the native title party in relation to the question of Mr Singh’s alleged conflict of duty, rather than on the basis that it was evidence of the unreasonable negotiating position of the native title party in relation to the question of compensation.
I have now dealt with all of the arguments put forward by the native title party to support its allegations that the grantee party has failed to negotiate in good faith. I find that none of those arguments can be sustained.
Decision
The grantee party has negotiated in good faith as required by s 31(1) of the Native Title Act 1993 (Cth) and the Tribunal has power to conduct an inquiry and make a determination.
Daniel O’Dea
Member
15 April 2011
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