Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 5]
[2020] WASC 470
•17 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 5] [2020] WASC 470
CORAM: LE MIERE J
HEARD: 20 NOVEMBER 2020
DELIVERED : 17 DECEMBER 2020
FILE NO/S: CIV 2072 of 2011
BETWEEN: AILEEN SANDY
SYLVIA ALLEN
MAVIS PAT
Plaintiffs
AND
YINDJIBARNDI ABORIGINAL CORPORATION RNTBC
Defendant
Catchwords:
Practice and procedure - Application for leave to use documents discovered and/or produced in compliance with subpoenas in one proceeding in another proceeding - Harman obligation - Implied undertaking that documents obtained as a result of the court's compulsory processes will only be used for the purposes for which they were disclosed - Whether there is a special feature of the case which affords the court a reason for modifying or releasing the Harman obligation - Turns on own facts
Ambit of the Harman obligation - Ceases to apply to documents which have been read or referred to in open court in a way that discloses their contents - Ceases to apply to a document filed or referred to in court as a result of which the public is entitled to access the document - Ceases to apply to documents which have entered the public domain by being accessible to the public - Whether the Harman obligation survives the relevant document being admitted into evidence - Yet to be authoritatively determined in this jurisdiction - Better view is that the Harman obligation ceases to apply to a document once it has been received in evidence and marked as an exhibit or read out, in whole or in part, in open court
Legislation:
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s 166‑1
Federal Court Rules 2011 (Cth), r 20.03
Native Title Act 1993 (Cth)
Result:
Leave granted
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr M L Bennett |
| Defendant | : | Mr K R Thomas |
| Interested Party | : | Mr G R Donaldson SC |
Solicitors:
| Plaintiffs | : | Bennett + Co |
| Defendant | : | HWL Ebsworth Lawyers (Perth) |
| Interested Party | : | Cleary Hoare |
Case(s) referred to in decision(s):
Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148
British American Tobacco Australian Services Ltd v Cowell (No 2) (2003) 8 VR 571
Connective Services Pty Ltd v Slea (2017) 53 VR 130
Daniel v The State of Western Australia [2005] FCA 536
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Haswell v Commonwealth of Australia [2020] FCA 915
Hearne v Street (2008) 235 CLR 125
Johns v Australian Securities Commission (1993) 178 CLR 408
Jones v Treasury Wine Estates Ltd No 4 (2020) 146 ACSR 302
K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Minister for Education v Bailey [2000] WASCA 377
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2011] 1 Qd R 145
Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] (2018) 126 ACSR 370
Sandy v Yindjibarndi Aboriginal Corporation RNTCB [No 2] [2019] WASC 328
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Sweetman v Australian Thoroughbred Finance Pty Ltd (Unreported, FCA, 23 July 1992)
Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138
LE MIERE J:
The plaintiffs are members of the Yindjibarndi people and members of the first defendant the Yindjibarndi Aboriginal Corporation RNTBC (YAC).
YAC is an Aboriginal and Torres Strait Islander Corporation which is incorporated pursuant to, and registered under, the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). The second defendant was joined as a representative of the directors of YAC. He has taken no separate part in the proceedings.
In these proceedings, the plaintiffs contended that, since December 2010, YAC acted and threatened to act in contravention of the requirements of the CATSI Act and in contravention of its constitution (the YAC Rule Book). The plaintiffs contended that the conduct of YAC's affairs was contrary to the interests of the members of YAC as a whole and oppressive to, unfairly prejudicial to, and unfairly discriminatory against members of YAC within the meaning of s 166‑1(1) of the CATSI Act. Justice Pritchard delivered judgment on 20 April 2018.[1] For convenience, Pritchard J referred to the plaintiffs' case as alleging 'oppressive conduct' on the part of YAC. Her Honour found that YAC had engaged in 'oppressive conduct' of the kind described in s 166‑1(1)(d) and (e) of the CATSI Act.
[1] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] (2018) 126 ACSR 370 (Sandy No 4).
On 4 May 2018 Pritchard J ordered judgment for the plaintiffs, granted declaratory and injunctive relief, and ordered the defendants to pay 70% of the plaintiff's costs of the action. The plaintiffs have applied for a special costs order which has not been determined.
On 8 November 2017 John Sandy and Paul Aubrey, who are members of YAC and of Wirlu‑Murra Yindjibarndi Aboriginal Corporation (WMYAC), an Aboriginal and Torres Strait Islander Corporation incorporated under the CATSI Act, commenced proceedings against YAC by originating summons (the 2017 proceedings).[2]
[2] Sandy & Anor v Yindjibarndi Aboriginal Corporation RNTBC (CIV 2883 of 2017).
The plaintiffs in the 2017 proceedings claim a declaration that the affairs of YAC have been conducted oppressively or unfairly, declarations relating to resolutions at the 2016 YAC AGM and the YAC Rule Book, and an injunction requiring YAC to lodge with the Office of the Registrar of Indigenous Corporations (ORIC) a financial report for the 2018 financial year.
Bennett + Co are the solicitors for the plaintiffs in this action and the plaintiffs in the 2017 proceedings. The first named plaintiff in this action, Ms Sandy, and Bennett + Co (together the applicants) seek an order that they have leave to provide the documents listed in schedules 1 to 3 of their application (the schedules) to the plaintiffs in the 2017 proceedings.
Amongst the documents listed in the schedules are documents produced by Juluwarlu Group Aboriginal Corporation (JGAC) in compliance with a subpoena issued at the request of the plaintiffs. The remainder of the documents are documents filed and served on behalf of the defendants, documents discovered by the defendants, and documents produced by Yindjibarndi Community & Commercial Ltd, a wholly owned subsidiary of YAC, in compliance with a subpoena issued at the request of the plaintiffs.
JGAC has intervened in these proceedings to oppose the orders sought by the applicants insofar as they relate to the documents produced by JGAC in response to the subpoena.
For the reasons which follow, I will give leave to the applicants to provide the documents listed in the schedules to the plaintiffs in the 2017 proceeding, for use in that proceeding.
The Harman obligation
There is an implied undertaking to the court that documents obtained as a result of the compulsory processes of the court will only be used for the purposes for which they were disclosed and not used for a collateral or ulterior purpose. The undertaking is often referred to as a Harman undertaking. This reference is derived from Harman v Home Office.[3] In Hearne v Street,[4] the High Court expressed the implied undertaking as a substantive obligation in the following terms:
Where one party to litigation is compelled, either by reason or by rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[5]
[3] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[4] Hearne v Street (2008) 235 CLR 125.
[5] Hearne v Street (2008) 235 CLR 125 [96].
The court may release a party from the obligation described by the High Court in Hearne v Street, which I will refer to as the Harman obligation. A person seeking leave to depart from the Harman obligation must show special circumstances. The test of special circumstances is met if there is a special feature of the case which affords a reason for modifying or releasing the obligation. This special feature is not usually present.
Documents produced by YAC ‑ applicants released from Harman obligation
YAC does not oppose the orders sought by the plaintiffs, subject to two qualifications. The first relates to the documents in sch 3, which are subject to an express confidentiality regime in these proceedings. The applicants agree that they should have leave to provide those documents to the plaintiffs in the 2017 proceeding, for use in that proceeding, subject to an express confidentiality regime which has been agreed between the plaintiff and the defendant. Secondly, the defendant makes no submission in relation to the documents that were produced by JGAC on subpoena.
In relation to the documents in the schedules, except for the documents produced by JGAC on subpoena, I am satisfied that special circumstances are made out. I will release the plaintiffs from the Harman obligation, and make the orders sought by the applicants in relation to the documents other than those produced by JGAC in compliance with the subpoena, and subject to the express confidentiality regime agreed between YAC and the applicants.
Documents produced by JGAC in compliance with subpoena
The documents in respect of which JGAC objects to the applicants being given leave to provide them to the plaintiffs in the 2017 proceeding fall into two categories. First, there are four documents which were admitted into evidence as exhibits at the trial of this proceeding. They are documents 45, 46, 48 and 49 in sch 2 of the plaintiffs' list of documents and are exhibits 1‑465, 1‑466, 1‑478 and 1‑483 respectively at the trial of this proceeding. Secondly, there are 222 documents in sch 1, part 4 of the plaintiffs' list of documents, which were produced by JGAC in compliance with a subpoena issued at the request of the plaintiffs.
Counsel for the plaintiffs, Mr Bennett, submitted that documents 45, 46, 48 and 49 are not subject to the Harman obligation because they were received in evidence as exhibits. Senior counsel for JGAC, Mr Donaldson SC, submitted that the fact that the documents were marked as exhibits did not bring the Harman obligation to an end and the documents remain subject to the Harman obligation.
Except in jurisdictions where the issue has been addressed by court rules, the case law exhibits a division of opinion as to whether or not the Harman obligation survives the relevant document being admitted into evidence.
Until altered by a rule change, the law in England was that admission of the document into evidence did not remove an implied undertaking as to confidentiality pertaining to that document. In Harman, the majority held that the fact that documents to which the implied undertaking as to confidentiality applied were read out in open court at the hearing of the action, whether admitted in evidence or not, did not bring that implied undertaking to an end. In dissent, Lord Scarman, with whom Lord Simon agreed, held that the undertaking not to use discovered documents ended once they had been produced or read out, in whole or in part, in open court.
There are judicial statements in Australian courts, although most are arguably dicta, in support of the approach of the minority in Harman. This includes the High Court. In Esso Australia Resources Ltd v Plowman,[6] Mason CJ said:
The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.[7]
[6] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.
[7] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 32 ‑ 33.
In Johns v Australian Securities Commission,[8] Gaudron J said, citing the minority judgment of Lord Scarman in Harman:
I can see much force in the view that no confidence attaches to material which is admitted into evidence in judicial proceedings, unless, of course, an order is made against publication.[9]
[8] Johns v Australian Securities Commission (1993) 178 CLR 408.
[9] Johns v Australian Securities Commission (1993) 178 CLR 408, 463.
In 1998, Anderson J in Hamersley Iron Pty Ltd v Lovell[10] followed the reasoning of the majority in Harman as representing the law of Western Australia. However, his Honour's statements to that effect are obiter insofar as they refer to documents marked as exhibits at trial. The documents in question in that case were exhibited to an affidavit in support of an application for leave to adduce fresh evidence on the hearing of an appeal by a union from the dismissal of its appeal to strike out or stay proceedings brought against it by Hammersley Iron. The documents were not read out in court and, at the time at which they were referred to, had not been admitted into evidence and were subsequently held to be inadmissible. Justice Ipp, with whom Pidgeon J agreed on this point, found it was unnecessary to decide the point because, on the facts, at the stage at which reference was made to the documents in issue, they had not been held to be admissible, and were subsequently held to be inadmissible. Justice Ipp referred to the observation of Mason CJ in Esso that:
The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.[11]
and noted that:
It is self-evident that by referring to material that had been 'adduced in evidence', [Mason CJ] was referring to tendered material held to be properly admissible in evidence.[12]
[10] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 339 ‑ 342.
[11] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, 32 ‑ 33.
[12] Hamersley Iron Pty Ltd v Lovell (1948) 19 WAR 316, 323.
In 2001, Hasluck J in Uniflex (Australia) Pty Ltd v Hanneybel[13] referred to the decision of the majority in Harman but referred to the 'powerful dissenting judgement by Lord Scarman.' His Honour referred to the decision of the Full Court in Hammersley Iron and observed that the Full Court in that case had found it unnecessary to decide whether the implied undertaking terminated upon the use of the discovered documents in open court during the course of the application for leave to adduce fresh evidence.
[13] Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 [145].
The approach of the majority in Harman was followed by the Victorian Court of Appeal in British American Tobacco Australian Services Ltd v Cowell (No 2).[14] In relation to the 'qualification' referred to by Mason CJ in Esso, the Court said:
It is possible that Mason CJ had in mind no more than that making public the document or its contents (a result which may not follow simply from the documents being marked as an exhibit in the proceeding) may well work, to some extent at least, an easing of the undertaking or its consequences for the party … and such an easing would amount to a 'qualification' on the operation of the undertaking … But it would not mean that every time a document is put in evidence the undertaking ceases ipso facto.[15]
[14] British American Tobacco Australian Services Ltd v Cowell (No 2) (2003) 8 VR 571.
[15] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 [30].
The court held that although the implied undertaking affecting the use of a document produced on discovery is not diminished simply by the document passing into evidence, where a party to a proceeding has available an alternative source of information about the contents of the document, then if that source be public, the party to whom the document was first discovered should arguably be as free to make use of that alternative source of information.
In 2005 in K & S Corporation Ltd v Number 1 Betting Shop Ltd,[16] in the course of an application for leave to serve a summons out of the jurisdiction, an issue arose whether the plaintiffs were entitled to rely upon a statement of claim and exhibits in another action. After referring to authorities including Harman, Hammersley Iron and Cowell, Debelle J said:
An important aspect of the reasoning in Harman and in British American Tobacco to justify the conclusion that persons subject to the obligations of the implied undertaking remain subject to these obligations notwithstanding that third parties may make what use they can of what they hear in court or read in transcript is that the party gaining access to another's documents is in a privileged position by reason of the process of the court and it is that privilege which should not be abused. … There can be no doubt as to the solemn nature of the undertaking and the gravity of the obligation it imposes. However, once the document has been admitted into evidence, the rationale for the undertaking evaporates. If third parties are at liberty to make what use they can of the documents, the person to whom they are disclosed should also be able to use them. The fact that the documents were initially disclosed to a person does not justify discriminating between that person and members of the public. The solemnity of the undertaking is not enhanced by such a rule. Instead, the unequal operation of the rule is likely to erode confidence in it. Sanctions exist to punish those who flout the undertaking. Courts may make orders to protect the confidentiality of documents admitted into evidence. In short, no public purpose is served by discriminating between the person to whom the document is disclosed and the third parties who may make what use of what they can of what they have heard in court or what they see in a transcript.
...
I do not share the concern of the Court of Appeal that there is any difficulty in understanding what is meant by such expressions as 'become public knowledge' or 'become part of the public domain'. …. In the case of a discovered document which has been admitted into evidence, it becomes public knowledge or enters the public domain once it has been admitted into evidence as an exhibit unless the court restrains the publication or in some other way preserves the confidentiality of the document.[17]
[16] K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228.
[17] K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228 [65] ‑ [67].
In 2007, EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth[18] observed 'that there is yet to be a definitive ruling' on whether documents being read or produced in open court dissolves the undertaking.
[18] Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24.
In 2008, Hayne, Heydon and Crennan JJ said in Hearne v Street, in a passage which has become an authoritative statement of the obligation:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs …' (emphasis added).[19]
[19] Hearne v Street (2008) 235 CLR 125, 154.
In Alcoa of Australia Ltd v Apache Energy Ltd,[20] McClure P, with whom Buss and Newnes JJA agreed, said:
The implied undertaking is an obligation of substantive law arising from the circumstances in which the material was generated and received: Hearne [102]. It comes to an end if and when a discovered document is received into evidence: Hearne [96].[21]
[20] Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148.
[21] Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 [49].
In Connective Services Pty Ltd v Slea,[22] Slea sought orders that the proceeding be dismissed on the ground that Connective had commenced the proceeding in reliance on an Agreement which it had obtained through discovery in earlier proceedings (the oppression proceeding) and thereby breached the implied undertaking not to use the Agreement for a purpose unconnected with those proceedings. In the oppression proceeding, in objecting to subpoenas, Slea had filed an affidavit exhibiting a copy of the Agreement. However, neither the affidavit nor the Agreement were read at the objection hearing, although counsel referred to the Agreement at the hearing. In a subsequent hearing in the oppression proceeding to set aside subpoenas, the Agreement was formally tendered and marked as an exhibit. Justice Almond held that the reference to the Agreement during argument at the first subpoena objection hearing did not constitute an alternative source of the information contained in the Agreement and the commencement of the proceeding, involving the use of information from the transcript of the first objection hearing which set out information derived from the Agreement, which had not been tendered in evidence, constituted a breach of the implied undertaking and was an abuse of process. His Honour further held that the tender and marking as an exhibit of the Agreement at the second subpoena hearing did not operate to remedy a breach of the implied undertaking.
[22] Connective Services Pty Ltd v Slea (2017) 53 VR 130.
In Haswell v Commonwealth of Australia,[23] Lee J referred to r 20.03(1) of the Federal Court Rules 2011 (Cth) which provides that if a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding, no longer applies. His Honour said that the rule is consistent with the position that would otherwise apply if the rule did not exist and then said:
… the position at common law in Australia is that the obligation comes to an end once a document is tendered in evidence or formally read in open court: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 (at 32–3 per Mason CJ); Ainsworth v Hanrahan (1991) 25 NSWLR 155 (at 164–5 per Kirby P). Although prior to Hearne v Street, there had been some contrary views expressed by intermediate courts of appeal about the width of the proposition I have just articulated (see Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 (at 342 per Anderson J) and British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43; (2003) 8 VR 571 (at 586‑7 [35] per Phillips, Batt and Buchanan JJA)), those doubts (based upon English authority) can be put to one side for at least two reasons.
First, even if it were thought (for some reason) that Mason CJ, unusually, did not mean what he said in observing that the obligation is subject to the qualification that once material is adduced in evidence it becomes part of the public domain (Plowman at 32‑3), the majority of the High Court made the position as to documents going into evidence plain in Hearne v Street (at 154‑5 [96] per Hayne, Heydon and Crennan JJ) ….
Secondly, and more fundamentally, the continuing maintenance of the obligation is inconsistent with the relevant information being in the public domain. … For the obligation to continue in circumstances where the relevant information is in the public domain, would make no sense given all persons have a common law right to make a fair report of information revealed in any proceeding in open court….
The practical and more specific statement of the operation of these principles, in this Court, is that the Hearne v Street obligation no longer subsists in relation to information obtained from public domain documents such as: (a) publicly available Court documents, being pleadings or particulars of a pleading or a judgment or a transcript etc (see FCR 2.32); (b) documents that have been tendered; (c) affidavits which have been read; (d) expert reports which have been adduced into evidence; (e) answers to interrogatories tendered; and (f) a document read or referred to in open court in a way that discloses its contents (see FCR 20.03).[24]
[23] Haswell v Commonwealth of Australia [2020] FCA 915.
[24] Haswell v Commonwealth of Australia [2020] FCA 915 [17] ‑ [20].
The issue was again addressed in the Federal Court by Foster J in Jones v Treasury Wine Estates Ltd.[25] Treasury Wine Estates Ltd (TWE) alleged that by using in another proceeding information contained in the statement of claim and defence in the present proceeding, the solicitor and counsel for Jones (the applicants) had breached the implied obligation not to use or allow documents obtained from TWE in the course of discovery in this proceeding for a collateral or ulterior purpose. The applicants sought a declaration that no obligation of the kind referred to in Hearne v Street applied with respect to the statement of claim or defence filed in the Jones proceedings or to any information contained within them. Justice Foster held that there was no breach of the obligation. In the Federal Court, pleadings are available for inspection by any member of the public. Further, the applicants did not access the primary sources for that information (ie the discovered documents) when they came to draft the pleadings in the other action. The only information used by them for that purpose was information contained in the pleadings in the Jones proceeding. Those pleadings were not subject to any Hearne v Street obligation. Nor was the information in those pleadings extracted from discovered documents subject to any such obligation.
[25] Jones v Treasury Wine Estates Ltd(No 4) (2020) 146 ACSR 302.
Justice Foster rejected a submission that the observations of Hayne, Heydon and Crennan JJ in Hearne v Street at [96] should be read as merely stating the position under various specific Rules of Court and should not be understood as stating the general law position. Justice Foster said that their Honours there stated the relevant common law principle.
Justice Foster referred to the statements of Debelle J in K & S Corporation Ltd v Number 1 Betting Shop, to which I have referred earlier in these reasons, and said that those remarks correctly state the law.
I draw the following conclusions from the authorities to which I have referred. First, the Harman obligation ceases to apply to documents which have been read or referred to in open court in a way that discloses their contents. Secondly, the obligation ceases to apply to a document filed or referred to in court as a result of which the public is entitled to access the document. Thirdly, the obligation ceases to apply to documents which have entered the public domain by being accessible to the public. Fourthly, whilst it is not been determined authoritatively in this jurisdiction, the better view is that the obligation ceases to apply to a document once it has been received in evidence and marked as an exhibit or read out, in whole or in part, in open court.
Schedule 2 documents
Two of the sch 2 documents produced by JGAC upon subpoena, documents 48 and 49, were received in evidence at the trial in this proceeding and marked as exhibits 1‑478 and 1‑483 respectively. At ts 433, counsel for the plaintiff referred to exhibit 1‑478 and described it as a Community Solutions cheque account for Westpac in the account of JGAC. At ts 433 and ts 434, counsel described the account and details of the entries on the pages of the account showing numerous deposits.
At ts 443, counsel referred to exhibit 1‑483, which is document 49 in sch 2. Counsel referred to pages of the statement and deposits shown in the statement.
I find that documents 48 and 49 of sch 2, which were exhibits 1‑478 and 1‑483 respectively at the trial of this action, were received into evidence, marked as exhibits and read or referred to in open court in a way that disclosed their contents at least in part. I find that the Harman obligation has ceased to apply to those documents.
Documents 45 and 46 were received into evidence and marked as exhibits 1‑465 and 1‑466. They were not read or referred to in open court in a way that discloses their contents. However, those documents are JGAC general purpose financial reports which, according to the evidence of Ms Coppin, are available to the public. I find that the Harman obligation has ceased to apply to those documents because they have been marked as exhibits and are accessible to the public.
The schedule 1, part 4 documents
The sch 1, part 4 documents were produced by JGAC in compliance with a subpoena issued at the request of the plaintiffs. The court may release the plaintiffs and their solicitors from the Harman obligation or modify the obligation.
As a general principle, the court will not release or modify the obligation except in special circumstances and where its release or modification will not occasion injustice to the person who produced the documents. Special circumstances in this context were described by Wilcox J in the following terms:
For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[26]
These remarks have been cited with approval on numerous occasions including by the Court of Appeal in Minister for Education v Bailey.[27]
[26] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, 225.
[27] Minister for Education v Bailey [2000] WASCA 377 [23]. See also Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2011] 1 Qd R 145 [16].
The risk of injustice or prejudice is reduced, and the grounds for releasing the obligation enhanced, where there is commonality between the main parties, issues and legal representation.[28] There is a commonality between these proceedings and the 2017 proceedings in relation to the parties, the subject matter and relevant issues.
[28] See eg Sweetman v Australian Thoroughbred Finance Pty Ltd (Unreported, FCA, 23 July 1992) 6 ‑ 7 (Lockhart J).
There is a close relationship between the plaintiffs in this proceeding and the plaintiffs in the 2017 proceedings. In the 2017 proceeding, the defendant, YAC, applied to strike out the plaintiffs' originating summons and that the proceeding be dismissed on the ground that the proceeding is an abuse of process on two grounds. The second ground was that WMYAC, by the plaintiffs, invoked the process of the court to litigate claims that could and should have been litigated in this proceeding. YAC alleged that WMYAC was funding the legal costs of the plaintiffs in the 2017 proceedings, has control over the way the plaintiffs conduct the 2017 proceedings, funded the plaintiffs in this proceeding and has control over the way the plaintiffs conduct their case in this proceeding. I found that WMYAC was exercising control over the way in which the plaintiffs conduct the 2017 proceeding and exercise control over the way in which the plaintiffs conduct this proceeding.[29]
[29] Sandy v Yindjibarndi Aboriginal Corporation RNTCB [No 2] [2019] WASC 328 [21] (Sandy No 2).
The defendant in this proceeding and the 2017 proceeding is YAC. There is a close relationship between YAC and JGAC. In 2003, the Federal Court recognised that the Yindjibarndi people had certain native title rights in an area referred to as the Yindjibarndi native title area.[30] Under the Native Title Act 1993 (Cth) (NT Act), common law holders will ordinarily nominate a prescribed body corporate to hold their native title rights and interests on trust for them. For the purposes of the NT Act, YAC is a 'prescribed body corporate' (PBC) and a 'registered native title body corporate' and in that capacity it holds the native title rights and interests in respect of the Yindjibarndi native title area on trust for the common law holders. As a PBC which holds native title rights and interests on trust, YAC has prescribed functions, including the function to manage the native title rights and interests of the common law holders. YAC has the legal capacity to negotiate certain future governmental acts, such as the conferral of mining rights and the compulsory acquisition of native title rights and interests, and to make indigenous land use agreements. Payment of compensation, such as those which may be made pursuant to an indigenous land use agreement, will be held on trust for the common law holders.
[30] Daniel v The State of Western Australia [2005] FCA 536.
JGAC is a not‑for‑profit indigenous community organisation incorporated under the CATSI Act. JGAC's chief executive officer, Ms Coppin, says that JGAC's core business is to collect, store and document knowledge which assists Yindjibarndi people and aboriginal people generally to retain and continue their practices. In about November 2008, YAC entered into a management agreement with JGAC. Under that agreement JGAC managed YAC's native title, heritage, environmental, cultural, administrative, banking and professional needs.[31]
[31] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124 [29].
There is commonality between the subject matter of this proceeding and the 2017 proceeding. At the heart of this proceeding, and the 2017 proceeding, is a dispute between YAC and those of its members who are also members of WMYAC. WMYAC was registered under the CATSI Act on 23 November 2010. It was established by a number of YAC members, including the plaintiffs in this proceeding. WMYAC's objectives, as set out in its Rule Book, are expressed in identical terms to YAC's objectives. The membership criteria of WMYAC is similar to the membership criteria for YAC. In order to be a member of WMYAC, a person must be a Yindjibarndi person who holds in common the body of traditional law and culture governing the Yindjibarndi native title area.
In her Honour's judgment in Sandy No 4, Pritchard J said that there was some dispute between the parties as to the precise bounds of the dispute between YAC and those of its members who are members of WMYAC, however it was not necessary to resolve the origins of that dispute or all of the issues which may be in dispute. It was, however, apparent that some of the issues which led to the dispute included concerns about the management of YAC, including the management of its financial affairs.[32]
[32] Sandy No 4 [79].
In Sandy No 2, I observed that at the heart of this proceeding, and the 2017 proceeding is a dispute between YAC and those of its members who are also members of WMYAC. An aspect of both proceedings is the plaintiffs' allegation that YAC has engaged in oppressive conduct in relation to the proper administration of YAC's finances.
There is a commonality between issues in the 2017 proceeding and issues which the plaintiffs sought to raise in this proceeding to which the documents in question are relevant. Issues in the 2017 proceeding are issues which the plaintiffs in this proceeding unsuccessfully sought to raise by amending their claim after documents had been produced on subpoena by JGAC. Those issues are the matters raised by the plaintiffs in [1.6] of their amended originating summons which is in these terms:
Payments in breach of the YAC rule book
1.6Making payments to members and other recipients in breach of rules 8 and 9 of YAC's rule book, including:
1.6.1Routinely making payments that have only either been signed by an employee or a single director;
1.6.2Failing to approve payments at directors' meetings;
1.6.3In the period 16 March 2015 to 6 September 2016, making payments totalling at least $648,106.63 to its members;
1.6.4Making significant payments to Juluwarlu Group Aboriginal Corporation which funds were then used to pay YAC members. The circumstances of such payments included:
(a)On 10 November 2014, being the date of a Special General Meeting, making a payment of $98,309.20 to JGAC; and
(b)In the period 11 November 2014 to 24 November 2016, 126 cheques for $500 each were withdrawn from JGAC Community Solutions Cheque Account in the amount of $63,000 and it is reasonable to infer that some or all of these cheques were payable to YAC members;
is and has been:
1.7contrary to the interests of the members as a whole; and
1.8oppressive to, unfairly prejudicial to or unfairly discriminatory against a member or members whether in that capacity or in any other capacity.
The plaintiffs in this proceeding unsuccessfully sought to raise the same issues at trial, however Pritchard J refused leave to amend for case management reasons, including the lateness of the amendment application.
Ms Elder, the solicitor who, subject to the supervision of her principals, has the conduct of this proceeding and the 2017 proceeding on behalf of the plaintiffs, has explained under oath why the documents in question are likely to be relevant and important for the plaintiffs' case in the 2017 proceeding.
Senior counsel for JGAC submitted that the documents in question cover a wider period than the periods referred to in [1.6.3] and [1.6.4] of the plaintiffs' amended originating summons in the 2017 proceeding, being periods between November 2014 and November 2016. However, Ms Elder has sworn that the allegations made in the amended originating summons are not limited to the November 2014 payments set out in [1.6.4], and it would be necessary to examine the wider context of the transactions in evaluating whether the allegations at [1.6.4] could be proven. Further, Ms Elder says that the employment contracts are relevant because any payments made to a JGAC employee should probably be disregarded. Further, the documents recording payments made by JGAC to certain relevant entities were necessary to give context to the funds transferred between YAC and JGAC. In particular, the bundle of transaction records for cheque account 11‑9863 would be necessary to confirm whether JGAC cheques were used to pay YAC members as alleged at [1.6.4] of the amended originating summons.
The issues raised by the plaintiffs in the 2017 proceeding, to which the documents in question are relevant, are not confined to the period from 2014 to 2016 I have referred to. In the 2017 proceeding, the plaintiffs allege, amongst other things, that YAC made payments to members and other recipients in breach of its rules, including payments prior to 2014. During that prior period, JGAC, under its agreement with YAC, managed YAC's native title, administrative, banking and professional needs.
JGAC submits that it will be prejudiced if the applicants are given leave to provide these documents to the plaintiffs in the 2017 proceedings for use in that proceeding. I am not satisfied that JGAC has established any significant prejudice.
Harman obligation should be modified
I find the plaintiffs have shown good reason why the JGAC documents, produced in this action pursuant to a subpoena, should be available to the applicants to provide to the plaintiffs in the 2017 proceedings for use in that proceeding. It is in the interests of justice that the applicants should have leave to provide those documents to the plaintiffs in the 2017 proceedings for use in those proceedings. Leave will be granted accordingly.
I have held that documents 45, 46, 48 and 49 in sch 2 of the plaintiffs' list of documents are no longer the subject of a Harman obligation. Out of an abundance of caution and against the possibility that I am wrong in that conclusion, I will also grant to the applicants nunc pro tunc, to the extent that it may otherwise be necessary, leave to use those documents and the contents thereof in the 2017 proceeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere17 DECEMBER 2020
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