FEDERAL COURT OF AUSTRALIA Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 3) [2014] FCA 709 Citation: Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 3) [2014] FCA 709 Parties: ELIZABETH DEMPSEY, MARLENE SPEECHLEY, CHARLES PAGE, DAVID RILEY, MAVIS SAMARDIN and THELMA PARKER ON BEHALF OF THE BULARNU, WALUWARRA AND WANGKAYUJURU PEOPLE v STATE OF QUEENSLAND, MOUNT ISA CITY COUNCIL, BOULIA SHIRE COUNCIL, CLONCURRY SHIRE COUNCIL, SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD, AUSTRALIAN AGRICULTURAL COMPANY PTY LTD, AA COMPANY PTY LTD, FRANK STIRLING BLACKET, RAHDA BLACKET, GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173, GEORGE BURTON HACON, CATHERINE LOUISE MCLOUGHLIN, JOHN KENNEDY MCLOUGHLIN, MDH PTY LTD ACN 010 114 468, VENLOCK PTY LTD, LORNA ELIZABETH BOGDANEK, HACON HOLDINGS PTY LTD, ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY and MOUNT ISA MINES LTD File number: QUD 6115 of 1998 Judge: MORTIMER J Date of judgment: 4 July 2014 Date of hearing: Heard on the papers Date of last submissions: 2 June 2014 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 30 Counsel for the Applicant: Mr R Blowes SC and Ms S Phillips Solicitor for the Applicant Queensland South Native Title Services Counsel for the State of Queensland: Ms H Bowskill QC Solicitor for the State of Queensland: Crown Law Counsel for Mrs Bogdanek: Mrs Bogdanek appeared in person Counsel for Cloncurry Shire Council, Boulia Shire Council and Mount Isa City Council: No Appearance Solicitor for Cloncurry Shire Council, Boulia Shire Council and Mount Isa Shire Council: Gilkerson Legal Counsel for the Pastoral Respondents: No Appearance Solicitor for the Pastoral Respondents: Thynne & Macartney Counsel for Southern Cross Fertilisers: No Appearance Solicitor for Southern Cross Fertilisers: King & Wood Mallesons Counsel for Mount Isa Mines Ltd: No Appearance Solicitor for Mt Isa Mines Ltd: Allens IN THE FEDERAL COURT OF AUSTRALIA MELBOURNE DISTRICT REGISTRY GENERAL DIVISION QUD 6115 of 1998 BETWEEN: ELIZABETH DEMPSEY First Applicant MARLENE SPEECHLEY Second Applicant CHARLES PAGE Third Applicant DAVID RILEY Fourth Applicant MAVIS SAMARDIN Fifth Applicant THELMA PARKER Sixth Applicant AND: STATE OF QUEENSLAND First Respondent MOUNT ISA CITY COUNCIL Second Respondent BOULIA SHIRE COUNCIL Third Respondent CLONCURRY SHIRE COUNCIL Fourth Respondent SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD Fifth Respondent AUSTRALIAN AGRICULTURAL COMPANY PTY LTD Sixth Respondent AA COMPANY PTY LTD Seventh Respondent FRANK STIRLING BLACKET Eight Respondent RAHDA BLACKET Ninth Respondent GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173 Tenth Respondent GEORGE BURTON HACON Eleventh Respondent CATHERINE LOUISE MCLOUGHLIN Twelfth Respondent JOHN KENNEDY MCLOUGHLIN Thirteenth Respondent MDH PTY LTD ACN 010 114 468 Fourteenth Respondent VENLOCK PTY LTD Fifteenth Respondent LORNA ELIZABETH BOGDANEK Sixteenth Respondent HACON HOLDINGS PTY LTD Seventeenth Respondent ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY Eighteenth Respondent MOUNT ISA MINES LTD Nineteenth Respondent JUDGE: MORTIMER J DATE OF ORDER: 4 july 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The following documents held by Mrs Bogdanek and the State of Queensland shall be returned to Queensland South Native Title Services Ltd on or before 4.00pm on Friday 25 July 2014: (a) "Wangka-Yujurru Report", Breen, G, N.d.a., unpublished ms; (b) "Genealogical Report Stage 1: Genealogical report for Wangkamahdla/Wangkamanha" by Dr Kevin Mayo redacted; (c) "Wangkamanha Descent Group Craigie Sheet 1.1" Paul Memmott and Associates; (d) "Wangkamanha Descent Group Craigie sheet 1.6" Paul Memmott and Associates; (e) "Wangkamanha Report (incorporating Wangka Yujuru and Antekerrepenh analysis)" Memmott, P and Sackett, L 2005a: Queensland South Native Title Services; and (f) "Waluwarra Report" Memmott, P and Sackett, L 2005b: Queensland South Native Title. (g) The two versions of the connection report prepared by Mr Michael Southon, marked as Exhibits Q1 and Q2 in this proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA MELBOURNE DISTRICT REGISTRY GENERAL DIVISION QUD 6115 of 1998 BETWEEN: ELIZABETH DEMPSEY First Applicant MARLENE SPEECHLEY Second Applicant CHARLES PAGE Third Applicant DAVID RILEY Fourth Applicant MAVIS SAMARDIN Fifth Applicant THELMA PARKER Sixth Applicant AND: STATE OF QUEENSLAND First Respondent MOUNT ISA CITY COUNCIL Second Respondent BOULIA SHIRE COUNCIL Third Respondent CLONCURRY SHIRE COUNCIL Fourth Respondent SOUTHERN CROSS FERTILISERS FORMERLY WMC FERTILISERS PTY LTD Fifth Respondent AUSTRALIAN AGRICULTURAL COMPANY PTY LTD Sixth Respondent AA COMPANY PTY LTD Seventh Respondent FRANK STIRLING BLACKET EightH Respondent RAHDA BLACKET Ninth Respondent GAMBAMORA INDUSTRIES PTY LTD ACN 009 941 173 Tenth Respondent GEORGE BURTON HACON Eleventh Respondent CATHERINE LOUISE MCLOUGHLIN Twelfth Respondent JOHN KENNEDY MCLOUGHLIN Thirteenth Respondent MDH PTY LTD ACN 010 114 468 Fourteenth Respondent VENLOCK PTY LTD Fifteenth Respondent LORNA ELIZABETH BOGDANEK Sixteenth Respondent HACON HOLDINGS PTY LTD Seventeenth Respondent ROBERT JOHN MCCONACHY T/AS ASHOVER PASTORAL COMPANY Eighteenth Respondent MOUNT ISA MINES LTD Nineteenth Respondent JUDGE: MORTIMER J DATE: 4 July 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 23 May 2014, I delivered judgment in this proceeding declaring that the applicant was entitled to a determination of native title in accordance with the terms of a proposed determination annexed to the applicant's statement of claim: see Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v Queensland (No 2) [2014] FCA 528. The determination was made by the Court at Moonah Creek, Queensland, on 27 May 2014. 2 On 23 May 2014, I also gave directions to the applicant, the State of Queensland and Mrs Lorna Bogdanek, being the active parties in the proceeding, for the filing of submissions and proposed orders with respect to orders I had made on 20 December 2013, restricting access to certain documents on the Court file. In accordance with those orders, submissions were filed by the applicant on 2 June 2014. No submissions were filed by either the State or Mrs Bogdanek. 3 For the reasons that follow, orders will be made substantially in the form proposed by the applicant in their submissions of 2 June 2014. BACKGROUND 4 As I observed in the principal judgment, this proceeding has been in this Court for a long time. Since Mrs Bogdanek was joined as a respondent in September 2011, there has been a considerable focus by her on whether, up to the date of trial, there had been sufficient anthropological investigation of the claims by her and members of her family to have rights to country in respect of the claim area. In various interlocutory hearings and in her witness statement, Mrs Bogdanek was critical of what she saw as the unfair assistance given to the applicants, through Queensland South Native Title Services Limited (QSNTS), by the retainer of Dr Kingsley Palmer as an anthropologist to produce first a "Connection Report" in relation to the claim area, and then to be an expert witness in this proceeding. Mrs Bogdanek referred to other anthropologists having interviewed her and members of her family and having produced reports, but claimed she did not have copies of those documents. 5 Once the matter was ready for trial, the proceeding was heard in two different periods and locations. Lay evidence was heard in Mount Isa between 21-29 October 2013, and expert evidence and final submissions were heard between 24-25 February 2014 and 27-28 February 2014 in Brisbane. Further expert material 6 During the course of the hearing of lay evidence in Mount Isa, it became apparent that there were indeed other anthropological, genealogical and linguistic reports and documents, referred to and relied upon by Dr Palmer and relevant to the issues in dispute in the proceeding, that had not been made available to the Court, to the State or to Mrs Bogdanek. 7 Accordingly, on 29 October 2013, the last day of hearing of lay evidence in Mount Isa, I gave a direction to the applicant to produce the following documents (the further expert material): An undated, unpublished manuscript of the linguist Dr Gavan Breen, entitled "Wangka-Yujurru Report"; A report by Dr Kevin Mayo, produced in 2012 for the applicant's legal representatives, QSNTS, entitled "Genealogical Report: Stage 1 Genealogical report for Wangkamahdla/Wangkamanha"; Two reports by Professor Paul Memmott and Associate Professor Lee Sackett, both dated 2005, entitled "Waluwarra report (including Gapula and Barnkarra)" and "Wangkamanha Report (incorporating Wangka Yujuru and Antekerrepenh analysis)"; and Two genealogical documents produced by Professor Paul Memmott, one in 2004 entitled "Wangkamanha Descent Group Craigie sheet 1.6" and one in 2005 entitled "Wangkamanha Descent Group Genealogies. Craigie Sheet 1.1". 8 These documents were produced to the active parties and to the Court on 20 December 2013, in compliance with my direction of 29 October 2013. On the same day, the applicant filed with the Court some proposed orders, to which the State and Mrs Bogdanek had consented, restricting access to the further expert material. The December 2013 orders and their applicability 9 On 20 December 2013 I made those orders in the following form (the December orders): 1. Subject to further order, the active parties (being the Applicant, the State and Mrs Bogdanek) only have access to the following documents to be provided by the Applicant on 20 December 2013: (a) 'Wangka-Yujurru Report', Breen, G, N.d.a., unpublished ms; (b) 'Genealogical report Stage 1: Genealogical report for Wangkamahdla/Wangkamanha' by Dr Kevin Mayo redacted; (c) 'Wangkamanha Descent Group Craigie Sheet 1.1' Paul Memmott and Associates; (d) 'Wangkamanha Descent Group Craigie sheet 1.6' Paul Memmott and Associates; (e) 'Wangkamanha Report (incorporating Wangka Yujuru and Antekerrepenh analysis)' Memmott, P and Sackett, L 2005a: Queensland South Native Title Services; and (f) Waluwarra Report Memmott, P and Sackett, L 2005b: Queensland South Native Title Services. 2. Unless otherwise ordered, and except as otherwise agreed in writing between the parties, the material listed in order 1 shall remain confidential to the Applicant and active parties (including their experts and legal advisors). 3. In accordance with Rule 20.03(2) unless otherwise ordered, and except as otherwise agreed in writing between the parties, the documents listed in order 1 shall remain subject to the active parties' undertaking not to use them except in relation to the current proceeding. 4. The documents listed in order 1 shall not be copied in any way or retained after cessation of the proceedings but shall be returned at the conclusion of the hearing to Queensland South Native Title Services. 10 During the hearing of expert evidence in Brisbane, on 24 February 2014, the further expert material was tendered in evidence in this proceeding as a single exhibit (Exhibit No A23). After the tendering of that material, Mr Tim Wishart, Chief Executive Officer of QSNTS, made an application for an extension of or modification to the December orders. 11 Mr Wishart submitted that he made the application in light of the operation of r 20.03(1) of the Federal Court Rules 2011 (Cth), and the effect the tendering of these documents might have on the continued operation of the December orders. 12 Rule 20.03(1) provides: (1) 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. (2) However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document. 13 That application under r 20.03(2) was made by Mr Wishart to the Court not on behalf of the applicant as a party to the proceeding, who were represented by QSNTS, but on behalf of QSNTS itself as the asserted "owner" of the further expert material. Mr Wishart submitted QSNTS had gathered the further material in the course of performing its statutory functions pursuant to s 203BJ(b) of the Native Title Act 1993 (Cth). Mr Wishart submitted to the Court that he was not the solicitor on the record for the applicant (that being another employee of QSNTS, Mr Stephen Hegedus), and he appeared independently of the applicant and in his capacity as CEO of QSNTS. He was concerned, he submitted, that if reference was made during the course of the evidence to any of these documents (for example, in cross-examination of Dr Palmer) that the implied undertaking would cease to apply, as r 20.03(1) contemplates. 14 The order proposed by Mr Wishart was: that the orders made by the Court on 20 December 2013 in respect of the documents the subject of those orders, are to continue until further order, notwithstanding the operation of rule 20.03(1) of the Federal Court Rules 2011 (Cth) and any reading or reference to those documents in open court in the course of these proceedings. 15 No objection was made by Mrs Bogdanek or the State to the proposed orders. 16 However, on further consideration it became apparent the December orders dealt satisfactorily with the effect of r 20.03(1) and, when I raised this matter with the parties and with Mr Wishart on the morning of 25 February 2014, all agreed an order of the kind proposed by Mr Wishart was unnecessary. I reminded those present in Court that restrictions on the use of the documents which were contained in the December orders continued. The Southon report 17 On 27 February 2014, during the hearing of final submissions in this proceeding, I expressed to counsel for the applicant my concern that expert reports tendered by the applicant had relied upon and made explicit reference to a report produced by Mr Michael Southon in 2012 entitled "Wangkamadla/Wangkamanha Connection to Country (Stage 2)" (the Southon report), which had not been made available to the respondents or the Court. 18 Mr Southon did not give evidence in the proceeding, but was a co-author (with Dr Palmer) of a joint anthropological report that formed part of the applicant's expert evidence. The joint report relied heavily on the Southon report. In many places in the joint report Dr Palmer is recorded as expressing his agreement with views expressed by Mr Southon at identified parts of the Southon report. It was my view that the joint report was not completely intelligible without the Southon report also being adduced in evidence. Counsel for the applicant informed the Court that this report also had not been made available to the applicant or their instructing solicitor or counsel, notwithstanding that the report had been produced at the request of QSNTS. 19 Mr Wishart, appearing on behalf of QSNTS, advised the Court that QSNTS was willing to provide a copy of the report to the active parties and the Court, on condition that the December orders were extended to include the Southon report. No objection was made by either the State or Mrs Bogdanek to the document being received on these terms and the document was tendered into evidence accordingly as Exhibit No Q1. 20 Accordingly, on 27 February 2014 I made orders in Court to the effect that the Southon report be subject to the same orders as those contained in the December orders. 21 On 28 February 2014, on the final day of hearing of final submissions, another version of the Southon report, said to be the version closest to that used by Dr Palmer and Mr Southon to produce their joint report, plus a sheet of cross-references produced by the applicant, was tendered into evidence as Exhibit No Q2. Although Exhibit No Q1 was not removed from the Court file, Exhibit No Q2 was, and was intended to be, treated as the relevant version of the Southon report. 22 To the date of this judgment, the further expert material and the Southon report continue to be subject to the December orders, as extended by me on 27 February 2014. The applicant's submissions in relation to the December order 23 In its submissions dated 2 June 2014, the applicant does not seek a further extension of the December orders. Instead, they propose paragraphs 1 to 3 of the orders be vacated, and an order be made requiring Mrs Bogdanek and the State to return the documents covered by the orders to QSNTS. 24 The applicant submits that it is appropriate for the Court to make the orders in the form proposed, as paragraph 4 of the December orders requires the active parties to return the material the subject of the December orders to QSNTS at the conclusion of the hearing. 25 Further, the applicant submits, neither Mrs Bogdanek nor the State have opposed the making of the December orders, nor did they oppose the extension of those orders when the further expert material was tendered in evidence on 24 February 2014, nor when QSNTS sought to have the orders extended to include the Southon report on 27 February 2014. 26 In its submissions, the applicant states: The Applicant has consulted with Queensland South Native Title Services Ltd ("QSNTS"), who made an application, separately from the lawyers from QSNTS who act on behalf of the applicant, for orders imposing restrictions on access to and publication of the material, which formed the genesis of the 20 December 2013 orders. QSNTS has indicated it does not object to the proposed further orders. CONSIDERATION 27 It appears from the applicant's submissions that paragraph 4 of the December orders has not yet been complied with. I proceed on that assumption. 28 Subject to one matter I deal with at [30] below, I accept the applicant's submissions that there is no need to continue the December orders and that the appropriate course is for the documents to be returned to QSNTS, now that the proceeding has concluded. Both Mrs Bogdanek and the State consented to the December orders, which included an express requirement (in paragraph 4) that the copies of the further expert material provided to them be returned to QSNTS at the conclusion of the hearing. Neither of them opposed QSNTS' application to the Court for those orders to be extended to the Southon report. The applicant has made no submission in support of ongoing restrictions over access to the documents, which will remain part of the Court file. In that sense, these orders simply complete what was contemplated by paragraph 4 of the December orders, being orders proposed with the consent of the active parties. 29 Orders will be made requiring Mrs Bogdanek and the State of Queensland to return the further expert material and the two versions of the Southon report the subject of the orders within a period of 21 days from the date of these orders. 30 I note that the time in which any party is entitled to lodge a notice of appeal from the determination made by the Court in favour of the applicant on 27 May 2014 has passed: see r 36.03 of the Federal Court Rules. Therefore there is no need for the orders to deal with the retention of the documents for the purpose of any appeal. Should an application for leave to appeal be filed and leave to appeal be granted, the Full Court will be able to deal with the further production and use of these documents for the purpose of the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate: Dated: 4 July 2014