FEDERAL COURT OF AUSTRALIA
Glencore Coal Pty Limited v Franks [2020] FCA 1801
File number: NSD 1299 of 2020 Judgment of: KATZMANN J Date of judgment: 15 December 2020 Catchwords: PRACTICE AND PROCEDURE — application for release from Harman undertaking regarding expert report produced in native title proceedings — report sought to be used for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) by applicants in the native title proceedings — whether special circumstances exist — whether in the interests of justice to grant the application — extent of commonality of proceedings — attitude of author — delay in making application — prejudice to s 10 applicants and third parties — where issues addressed by expert report differ from issues to be considered on the s 10 application, whether report would contribute to the achievement of justice in the s 10 application Legislation: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 10
Native Title Act 1993 (Cth), ss 62, 223
Cases cited: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
Crest Homes Plc v Marks [1987] 1 AC 829
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 21
Sweetman v Australian Thoroughbred Finance Pty Ltd (Federal Court of Australia, 23 July 1992, unreported)
Williams v Minister for the Environment & Heritage [2003] FCA 627
Division: General Division Registry: New South Wales National Practice Area: Native Title Number of paragraphs: 45 Date of hearing: 14 December 2020 Solicitor for the Applicant: Mr W Lim of Ashurst Australia Counsel for the Respondents: Mr I G Roberts SC ORDERS
NSD 1299 of 2020 BETWEEN: GLENCORE COAL PTY LIMITED (ACN 082 271 930)
Applicant
AND: SCOTT MCCAIN FRANKS
First Respondent
ROBERT JOHN LESTER
Second Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
15 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KATZMANN J:
It is well-established that, subject to “inconsistent statutory provisions and to the requirements of [the] curial process in other litigation” (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33 per Mason CJ), a party who obtains documents or information through the process of discovery is subject to an implied undertaking not to make use of them or it for a collateral purpose. The undertaking, generally known as a Harman undertaking, after Harman v Secretary of State for the Home Department
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- Case
- [2020] FCA 1801
- Decision Date
CaseChat Overview and Summary
The legal issues included whether the circumstances were special enough to warrant a departure from the Harman undertaking, which generally prevents the disclosure of expert reports outside the proceedings they were prepared for. The court also had to consider the extent to which the issues addressed in the expert report overlapped with those of the section 10 application, the attitude of the expert, any delay in making the application, and the potential prejudice to the section 10 applicants and third parties. A key consideration was whether the use of the report would contribute to achieving justice in the section 10 application.
The court found that there were no special circumstances to warrant releasing the expert report from the Harman undertaking. The issues addressed in the report differed from those in the section 10 application, and the report was not neutral as it was prepared for one side in the native title proceedings. The delay in making the application and the potential prejudice to the section 10 applicants and third parties also weighed against granting the application. Consequently, the application was dismissed, and the applicant was ordered to pay the respondents' costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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