Glencore Coal Pty Limited v Franks

Glencore Coal Pty Limited applied for leave to use an expert report produced in native title proceedings to make representations regarding an application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The respondents opposed the application, arguing it was not in the interests of justice to release the report from the Harman undertaking. The matter was before the Federal Court, which had to determine whether special circumstances existed to justify releasing the expert report for use outside the native title proceedings.

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.