Mumbin v Northern Territory of Australia
[2018] FCA 1646
•31 October 2018
FEDERAL COURT OF AUSTRALIA
Mumbin v Northern Territory of Australia [2018] FCA 1646
File number: NTD 57 of 2017 Judge: GRIFFITHS J Date of judgment: 31 October 2018 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time for the applicant to file a report on connection in respect of its native title determination application – application for non-party discovery under r 20.23 of the Federal Court Rules 2011 (Cth) Legislation: Native Title Act 1993 (Cth), s 67
Federal Court of Australia Act (Cth), s 37M
Federal Court Rules 2011 (Cth), r 20.23
Date of hearing: 31 October 2018 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 27 Counsel for the Applicants: Mr A Collett Solicitor for the Applicants: Camatta Lempens Pty Ltd Lawyers Solicitor for the Respondent: Ms Z Spencer of the Northern Territory Department of the Attorney-General and Justice Counsel for the University of Western Australia: Mr M McKechnie Solicitor for the University of Western Australia: Herbert Smith Freehills Solicitor for the Northern Land Council: Mr R Powrie of the Northern Land Council ORDERS
NTD 57 of 2017 BETWEEN: LISA MUMBIN
First Applicant
GARRY MANBULLOO
Second Applicant
JANE RUNYU-FORDIMAIL (and others named in the Schedule)
Third Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
UNIVERSITY OF WESTERN AUSTRALIA
JUDGE:
GRIFFITHS J
DATE OF ORDER:
31 OCTOBER 2018
THE COURT ORDERS THAT:
1.Order 2 made on 13 of April 2018 be amended so that the applicant is to file and serve its report(s) on connection by no later than close of business on 31 March 2019.
2.The applicant’s interlocutory application filed on 16 October 2018 otherwise be dismissed.
3.Pursuant to r 20.23 of the Federal Court Rules 2011 (Cth), the University of Western Australia, by its proper officer, provide non-party discovery of all documents in the Berndt Museum of Anthropology in the following categories:
(a) Ronald Berndt and Catherine Berndt Native Title Labour and Welfare in the Territory (294 pages, plus tables and appendices) circa 1946.
(b)Berndt and Berndt A Northern Territory Problem: Aboriginal Labour in a Pastoral Area (1948, 1-84, and appendices 36pp).
(c)Any of the following documents known to the University of Western Australia:
(i)All genealogies, maps, fieldnotes and other written documents collected by Ronald or Catherine Berndt during their research at or in the vicinity of Katherine, including at Manbulloo Station, adjacent pastoral stations, and military and civilian camps for Aboriginal people in the vicinity of Katherine.
(ii)Any private correspondence between Ronald or Catherine Berndt and Professor Merlan about traditional ownership, native title or cultural matters at or in the vicinity of Katherine.
(iii)Any private correspondence between Ronald or Catherine Berndt and Walter Arndt about traditional ownership or Aboriginal cultural matters at or in the vicinity of Katherine.
(iv)Any private correspondence between Ronald or Catherine Berndt and Professor Adolphus Elkin about traditional ownership or Aboriginal cultural matters at or in the vicinity of Katherine.
(v)Any private correspondence between Ronald or Catherine Berndt and Norman Tindale about traditional ownership or Aboriginal cultural matters at or in the vicinity of Katherine.
4.Discovery of the documents in Order 3 above is to be made by the University of Western Australia allowing access to the documents for inspection as follows:
(a)inspection of the documents may only be by Mr Kim Barber, anthropologist, on the dates and times agreed with Dr Vanessa Russ, under the supervision of a staff member of the University of Western Australia;
(b)Mr Kim Barber must at all times strictly comply with any direction of a University of Western Australia staff member with respect to the protocols to be followed when inspecting the documents;
(c)Mr Kim Barber must not mark or take any original documents from the Berndt Museum of Anthropology;
(d)the University of Western Australia must produce to Mr Kim Barber one copy of any documents requested by Mr Kim Barber within a reasonable period, having regard to any conservation procedures that need to be followed to copy particular documents;
(e)the University of Western Australia is not required to produce a list of documents in accordance with r 20.17 of the Federal Court Rules 2011 (Cth).
5.Discovery of the documents is to be made only to Mr Kim Barber, the applicant and the applicant’s legal representatives and in accordance with a confidentiality undertaking, as agreed between the solicitors for the applicant and the solicitors for the University of Western Australia, signed by each relevant person prior to discovery.
6.Pursuant to r 20.25 of the Federal Court Rules 2011 (Cth), the applicant must pay the University of Western Australia’s reasonable costs in relation to:
(a)the legal costs incurred by the University of Western Australia in relation to this application and compliance with these Orders;
(b)the time and the costs incurred by the University of Western Australia in searching the material contained in the Berndt Museum of Anthropology to comply with these Orders; and
(c)the costs incurred by the University of Western Australia for producing a copy of the documents requested by Mr Kim Barber.
7.The University of Western Australia is not required to comply with Orders 3 and 4 above:
(a)with respect to inspection, until the applicant has complied with Orders 6(a) and 6(b) above; and
(b)with respect to producing a copy of the documents requested by Mr Kim Barber, until the applicant has complied with Order 6(c) above.
8.The proceeding be listed for a case management conference, together with the foreshadowed new Dagoman claim, by video link to Canberra before Justice Griffiths on 4 December 2018 at 4:15pm AEDT.
9.The applicant’s interlocutory application filed on 26 October 2018, in so far as it relates to discovery against the Northern Land Council, be adjourned to 4 December 2018 at 4:15pm AEDT by video link to Canberra before Justice Griffiths.
10.Liberty to apply on the giving of 72 hours notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
The applicant in the Jawoyn application (NTD 57 of 2017) has filed two interlocutory applications. The first, filed on 16 October 2018, seeks an extension of time to 12 May 2019 for the applicant to file its connection report(s). The second interlocutory application, filed on 26 October 2018, seeks non-party discovery against the Northern Land Council (NLC) and the University of Western Australia. Various affidavits have been filed in support of these interlocutory applications.
On the morning of the scheduled interlocutory hearing on 31 October 2018, the applicant advised my Chambers that it was able to agree a procedure with NLC in respect of discovery and consequently it would not be pressing the application for discovery against NLC at this time.
The Jawoyn native title determination application was filed on 24 November 2017. It relates to the area in and around Katherine in the Northern Territory. No anthropological evidence was filed in support of the application, however, the application contains many cross-references to a report dated 1987 from Justice Kearney in his capacity as Aboriginal Land Commissioner under the Aboriginal Land Rights legislation in the Northern Territory in relation to a claim under that legislation concerning land at Katherine Gorge.
Until recently, there were two other separate claims under the Native Title Act 1993 (Cth) (NT Act) which overlapped the area the subject of the Jawoyn application. The two Dagoman applications (NTD 6002/1999 and 6001/2000) have been on foot for almost 20 years.
Section 67(1) of the NT Act requires that competing claims in relation to the same area be heard together.
The Dagoman claims were placed on the Court’s priority list with the objective of having a consent determination in the second half of 2018. Since the Jawoyn application was filed, the Court has conducted joint case management hearings involving all three applications.
The Court has previously expressed its concerns about the Jawoyn application delaying finalisation of the Dagoman claims. At a case management hearing on 13 April 2018, the Court ordered that the applicant in the Jawoyn claim had to finalise its reports on connection by no later than 12 October 2018, i.e. within six months.
On 16 October 2018 the Jawoyn applicant filed an interlocutory application seeking an extension of time so as to provide its connection report by 12 May 2019 i.e. a further six months.
At a case management hearing conducted on 17 October 2018, the Court granted leave for the Dagoman claims to be discontinued by 16 November 2018 and ordered that the foreshadowed reformulated Dagoman application be filed and served also by that date. The Court was informed that the connection report in support of the new Dagoman claim had been finalised and would be provided to the Northern Territory as respondent when the new claim was also filed. The Court was also told that tenure negotiations with the Northern Territory regarding the Dagoman claim were now completed and that any outstanding issues would be dealt with through a whole of settlement ILUA. Based on these matters, it is evident that the Dagoman claim is well advanced, even though the terms of the new claim have not yet been made known.
It is necessary to now turn to evidence which has been given by Mr Kim Barber, the anthropologist who has been retained by Jawoyn. In an affidavit dated 25 October 2018 (which apparently superseded an earlier affidavit affirmed by Mr Barber), Mr Barber gave evidence in support of both the application for an extension of time and non-party discovery. Mr Barber is an anthropologist who lives in Launceston, Tasmania. He has a Bachelor of Arts with First Class Honours in Anthropology from the University of Western Australia. He said that since 1983 he has done considerable anthropological research in various parts of Australia, particularly the Northern Territory and Western Australia. He says, however, that prior to his retainer in this matter, he had not previously conducted anthropological research about the Jawoyn claim group.
Mr Barber says that he was engaged on 29 January 2018 by Jawoyn’s solicitor to conduct anthropological research and prepare a report. He also said that because of other work commitments during February 2018 it was not until March that he was able to commence field work. He was then overseas for all of April and his work did not resume until May. He gave details of the approximately 90 days he had spent so far on his retainer. It appears that he has not done any work since 24 September 2018. This may be because he gave evidence that while he had been paid for 58 days of work, 37 days were unpaid because of lack of funds at the NLC. He said, however, that on 24 October 2018, he was told that NLC had obtained further funds from the Department of Prime Minister and Cabinet.
Mr Barber said that he had been asked by NLC’s solicitor on 12 April 2018 whether he could complete his report by 12 October 2018. He said that he accepted the timeframe, subject to two qualifications. First, that he have immediate access to the NLC’s Land Interests Register, which he expected contained a significant volume of published and unpublished research about the Jawoyn group. The second qualification was that the Jawoyn application be uncontested.
It is difficult to understand the basis for the second qualification in circumstances where, as Mr Barber presumably knew, the competing Dagoman applications were well on foot and, moreover, had given rise to some controversy among the Jawoyn people. There was an incident which received wide publicity in late March 2018, when a group meeting by the Dagoman people was disrupted by people who were described in news reports as being members of the Jawoyn Association. I make no finding about the accuracy of those news reports.
Mr Barber also says that preparation of his report has been further delayed because he has not seen the new Dagoman claim and does not know who will be the new claim group for that new application or any anthropological basis for that group.
It is not easy to understand why Mr Barber cannot progress his anthropological report in respect of the Jawoyn claim, rather than giving so much prominence to responding to the foreshadowed Dagoman claim. The Jawoyn people were not respondents to the two Dagoman claims.
In his affidavit, Mr Barber described the research that he had done to date. He said that his research has “naturally focused, inter alia, on what is publicly known about the Dagoman claim”. Again, it is unclear why he gives so much prominence to that claim, as opposed to providing evidence relating to the Jawoyn claim.
Mr Barber described “constraints on [his] research”, relating primarily to the lack of access to the Land Interests Register and to materials kept in the Berndt Museum at the University of Western Australia. Under the terms of the Will of the widow of Professor Ronald Berndt, a renowned anthropologist, relevant papers and documents of Professor Berndt are held by the University of Western Australia and are embargoed until 2024.
Mr Barber says that despite earlier indications that he would be given access to some Land Register documents, prior to 24 October 2018 none was forthcoming. He said that on that day Jawoyn’s solicitor was told that the NLC had finally managed to collate, digitise and name all of the documents sought by Mr Barber.
Mr Barber said that he was unable to complete his report by 12 October 2018 because of the abovementioned constraints and the complexity of the matter. He said that additional time was required so that he could access documents in the Register, the Berndt Museum and AIATSIS, and to complete updated genealogies, conduct field work with claimants, and identify contemporary cultural practices and activities under laws and customs. He said that more time is needed so that he can assess the foreshadowed reformulated Dagoman application on behalf of a substantially different claim group, which has not yet been filed. Mr Barber said that although he had conducted “a significant volume of work since being engaged on 29 January 2018” and has formed preliminary observations, there remains a “considerable volume of work to complete so as to finalise my report”.
Mr Barber said that he anticipated that an additional six working months would be sufficient for him to complete his research and that, excluding the Christmas/New Year vacation, this means a new due date of 12 May 2019. He said that this timeframe is based on an assumption that he would receive a copy of the anthropological report for the reformulated application at around the same time as it is served on the Northern Territory (the respondent).
Turning now to the interlocutory application seeking non-party discovery, r 20.23 of the Federal Court Rules 2011 (Cth) (2011 FCRs) provides:
Discovery from non-party
(1)If a party believes that a person who is not a party has or is likely to have, or has had or is likely to have had, in the person’s control, documents that are directly relevant to an issue raised on the pleadings or affidavits, the party may apply to the Court for an order that the person make discovery of the documents to the party.
(2) An application under this rule must:
(a) be served personally on the person; and
(b) be accompanied by an affidavit:
(i) stating the facts on which the applicant relies; and
(ii)identifying, as precisely as possible, the documents, or categories of documents to which the application relates.
(3)A copy of the accompanying affidavit for an application must be served on each person on whom the application is served.
(4) In subrule (1), a reference to an affidavit is a reference to:
(a) an affidavit accompanying an originating application; and
(b)an affidavit in response to the affidavit accompanying the originating application.
The University of Western Australia relied upon an affidavit dated 30 October 2018 by Dr Vanessa Russ, who is employed by the University as the Associate Director of the Berndt Museum of Anthropology and is Curator of the Museum. I will not set out the contents of the affidavit in light of the position reached between the applicant and the University in respect of discovery.
The Court will make orders that reflect those orders. I note those orders are not made by consent, having regard to the University’s position that it requires a Court order to deal with the embargo on the material in its possession.
On the issue of extending time, I am not persuaded by Mr Barber’s evidence and the applicant’s submissions that the applicant should have until 12 May 2019 to complete any connection report. Section 37M of the Federal Court of Australia Act (Cth) makes clear that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. This involves, among other matters, the disposal of all proceedings in a timely manner.
The belated filing of the Jawoyn application, against a background of the competing Dagoman claims having been on foot for approximately 18 years at that time, should not be permitted to blow out the timetable for finalising the foreshadowed new Dagoman claim. I need not repeat what I have said above about the priority given to the Dagoman claims by the Court.
The Jawoyn applicant elected not to file a detailed contemporary report on connection when it filed its native title determination application. It was the applicant’s choice to retain Mr Barber, who resides in Tasmania and who has, by his own evidence, not previously conducted an anthropological research about the Jawoyn claim group.
Having regard to the matters raised by Mr Barber in support of the applicant’s application for an extension of time, I consider that it is reasonable to require the applicant to provide any report on connection by no later than 31 March 2019.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 31 October 2018
SCHEDULE OF PARTIES
NTD 57 of 2017 Applicants
Fourth Applicant:
NOELENE ANDREWS
Fifth Applicant:
NELL BROWN
Sixth Applicant:
SUZINA MCDONALD
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