FEDERAL COURT OF AUSTRALIA Rirratjingu Aboriginal Corporation v Northern Land Council [2014] FCA 1281 Citation: Rirratjingu Aboriginal Corporation v Northern Land Council [2014] FCA 1281 Parties: RIRRATJINGU ABORIGINAL CORPORATION (ICN 305) AND ORS v NORTHERN LAND COUNCIL AND ORS File number: NTD 31 of 2014 Judge: white j Date of judgment: 21 November 2014 Catchwords: PRACTICE AND PROCEDURE – application for leave to issue subpoenas Legislation: Federal Court Rules 2011, rr 20.32 , 24.01 Date of hearing: 21 November 2014 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the First Applicant: Mr T McAvoy Solicitors for the First Applicant: Minter Ellison Lawyers Counsel for the First Respondent: Mr S Glacken with Mr G Hill Solicitors for the First Respondent: Northern Land Council Counsel for the Second Respondent: Mr M Crawley Solicitors for the Second Respondent: Bowden McCormack IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 31 of 2014 BETWEEN: RIRRATJINGU ABORIGINAL CORPORATION (ICN 305) AND OTHERS NAMED IN THE SCHEDULE Applicants AND: NORTHERN LAND COUNCIL First Respondent GUMATJI ABORIGINAL CORPORATION (ICN 7138) Second Respondent DJALU GURRUWIWI Third Respondent JUDGE: WHITE J DATE OF ORDER: 21 November 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Leave be granted to the First Applicant to issue subpoenas to the persons listed in paragraph 3 of the affidavit of Kirby Larissa Lawler sworn on 17 November 2014, other than Mandaka Marika, to attend to give evidence at the trial. 2. The application for leave to issue a subpoena to Northern Australia Aboriginal Development Corporation Pty Ptd trading as Aboriginal Investment Group is adjourned to 3 December 2014 at 2.15pm. 3. The interlocutory application of 18 November 2014 be otherwise dismissed. 4. The First Applicant is to pay the costs incurred by the First Respondent of and incidental to the interlocutory application of 18 November 2014, other than the costs of its attendance in court today. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 31 of 2014 BETWEEN: RIRRATJINGU ABORIGINAL CORPORATION (ICN 305) AND OTHERS NAMED IN THE SCHEDULE Applicants AND: NORTHERN LAND COUNCIL First Respondent GUMATJI ABORIGINAL CORPORATION (ICN 7138) Second Respondent DJALU GURRUWIWI Third Respondent JUDGE: white j DATE: 21 November 2014 PLACE: ADELAIDE EX TEMPORE REASONS FOR JUDGMENT 1 By an interlocutory application filed on 18 November 2014 the first applicant seeks leave pursuant to r 24.01 of the Federal Court Rules 2011 to issue subpoenas to eight persons requiring them to attend to give evidence at the trial of this action. That trial is to commence in Darwin on 3 December 2014. In addition, by the interlocutory application, the first applicant indicated that it sought leave to issue subpoenas to two entities requiring the production of documents. 2 It is common for applications for leave to issue a subpoena to be made without notice to any other party in the litigation, and for the application to be dealt with by a judge in chambers. However, in the present case, I caused the application to be listed for hearing in open court. I did so for three principal reasons. 3 First, I am not the docket judge for the proceedings and am dealing with the application in the absence of Mansfield J, who is the docket judge. I am accordingly conscious that I do not have the knowledge of the issues arising in the proceedings nor the knowledge of the procedural history which Mansfield J, as the docket judge, has. Secondly, the first applicant made the application for leave by interlocutory application, thereby signalling that it contemplated a more formal process. Thirdly, one of the entities from which the first applicant sought the production of documents is the first respondent to the proceedings, namely the Northern Land Council (NLC). The terms of the proposed subpoena to the NLC indicated that the first applicant sought an order which was tantamount to an order for discovery of documents. It was appropriate for the NLC to be given the opportunity to be heard in relation to the issue of a subpoena of that kind. 4 There is a fourth consideration, namely, that the second entity upon which the first applicant proposed serving a subpoena is not a party. It is apparent that the proposed subpoena would, in effect, require that non-party to provide discovery of documents. That, too, gives rise to significant considerations on an application of this kind to which I will return. 5 The first applicant no longer pursues the application for leave to issue a subpoena addressed to the NLC. It has indicated instead that it will rely on a notice to produce served, or to be served, on the NLC requiring it to produce at the trial specified documents. That being so, it is not necessary to consider further the application for leave to issue a subpoena addressed to the NLC. 6 I add that the written submissions provided to the Court by counsel for the first applicant addressed issues which may arise in relation to the service, or possible setting aside, of the Notice to Produce. I indicate that I have not regarded it as being necessary for me to address those issues at all, there being no application with respect to the Notice to Produce presently before the Court. 7 It is not necessary for me to outline the issues in the proceedings or their procedural course. Mansfield J will be familiar with those issues and with the procedural course, as are the parties. 8 In accordance with the orders of the Court in relation to the trial of the action, the applicant has filed affidavits from a number of persons including the following: Adrian Mark Rota, Sabina Murdoch, Nancy Williams, Denise Fincham, Mandaka Marika, Tracy Patterson and Djuwalpi Marika. 9 The first applicant wishes to serve a subpoena on all of these persons and on an additional person, Sydney Stirling. I will consider his position separately. In respect of Adrian Rota, Tracy Patterson, Sabina Murdoch, Denise Fincham and Nancy Williams, the first applicant's solicitor has deposed that, because they are not employees of the first applicant. it is not certain whether they will attend voluntarily at the trial to give evidence. In respect of Djuwalpi Marika, the solicitor deposes that, although it has a sworn affidavit from him – 10 Although it has a sworn affidavit from him, he is not a party to the proceedings and nor is he an employee of the first applicant. This has the consequence, the solicitor deposes, that it is not certain whether Mr Marika will attend voluntarily to give evidence at the trial. 11 Although the application indicates that the first applicant also sought the issue of a subpoena addressed to Mandaka Marika, the first applicant's Counsel informed me this morning that that aspect of the application was not pursued. 12 The first applicant's solicitor has not deposed to any attempts to secure the attendance of the witnesses I have listed or of their response to such attempts. She has deposed only to a circumstance giving rise to the possibility that those persons may not attend voluntarily at the trial. 13 On its face, therefore, the evidence supporting the grant of the issue of subpoenas to these persons is slight. I take into account, however, that the proceedings have been brought on at relatively short notice; that all parties seem to agree that it is desirable, if not important, that the proceedings continue expeditiously; that it is important that interruptions to the trial be minimised; and that by virtue of their having made affidavits, the listed persons have shown a willingness to be involved in the proceedings. Accordingly, although as I have said, the evidence supporting or justifying the issue of these subpoenas is slight, I will grant leave in respect of the subpoenas addressed to those whom I listed, other than Mandaka Marika. 14 I turn then to the application with respect to Sydney Stirling. Paragraph 97 of Mr Rota's affidavit, filed on 11 November 2014, indicates that Mr Stirling may – and I emphasise that I am saying no more than may – be able to give relevant evidence at the trial. He has, however, indicated that he does not wish to cooperate with the first applicant's solicitors. Accordingly, it is understandable that the first applicant seeks the issue of a subpoena to procure his attendance. Mr McAvoy has assured me that the first applicant does intend leading evidence from Mr Stirling at the trial. In those circumstances, I will grant the leave to issue a subpoena addressed to Mr Stirling. 15 That leaves the application for a subpoena to produce documents proposed to be served on Northern Australian Aboriginal Development Corporation Proprietary Limited, which trades as Aboriginal Investment Group (AIG). The first applicant seeks to have AIG produce a wide range of documents. In support of this part of the application, the first applicant's solicitor says, in paragraph 11 of her affidavit made on 17 November 2014: AIG was in the position of adviser to the Rirratjingu, appointed by the NLC for the purpose of the negotiation and execution of the Gove agreement. The relationship between AIG and the NLC and the role played by the AIG in facilitating the execution of the Gove agreement is relevant to the conduct of the NLC relating to the quarterly payments. The subpoena directed to the AIG seeks the production of all documents relating to the Gove agreement. 16 For the purpose of determining the grant of leave for a subpoena addressed to AIG, I am willing to assume (without determining) that the documents which the first applicant seeks from it do have a legitimate forensic purpose. However, I consider that even on that basis it would be inappropriate to grant leave to the first applicant to issue the subpoena it seeks, at least at this stage. First, as can be seen, the solicitor's affidavit in support goes only to the possible relevance of the documents which may be held by AIG and does not address at all the necessity for a subpoena to be issued in order that the first applicant may procure the production of those documents. There is no evidence at all of attempts made by the first applicant to seek the production of the documents. I am referring there to attempts made by the first applicant's solicitors, because one would, in the ordinary course, expect that they would take responsibility for collecting the evidential material upon which the first applicant will wish to rely at the trial. 17 Given the first applicant's previous relationship with AIG, I am not willing to assume that it does not have alternative means of procuring the documents. The written outline provided by the first applicant's counsel with respect to today's application contends that the documents sought from AIG are all documents to which the first applicant is entitled in any event. That being so, it seems to me that it must be open to the first applicant to seek by other means the production of the documents which it seeks. 18 Secondly, generally speaking the Court deprecates the use of subpoenas as an alternative to discovery. 19 Thirdly, r 20.32 and following of the Federal Court Rules contains a detailed regime for the obtaining of non-party discovery. That regime has a number of built-in protections for the non-party. The Court should not readily allow a departure from that regime. 20 Fourthly, I consider that the application has been brought relatively late in the piece. There have already been three directions hearings before Mansfield J at which this issue could have been raised and dealt with by him as the docket judge. As I understand it, the issue of non-party discovery has not been raised at any time. Related to this is that I am not the docket judge. I am conscious, as I said before, that I do not have full knowledge of all the issues in the proceedings or the procedural history. I am concerned that I should not do anything which would undermine or disrupt the regime which Mansfield J has put in place in some detail. 21 Accordingly, I am not prepared today to grant leave to the first applicant to issue a subpoena directed to AIG. 22 However, bearing in mind that I am not the docket judge, I will not dismiss that part of the application altogether. Instead I will adjourn that part of the application to 3 December 2014, so that if the first applicant wishes, it can raise the matter before Mansfield J. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White . Associate: Dated: sCHEDULE Applicants: Second Applicant: LAKLAK MARIKA Third Applicant: MANGAJAY YUNUPINGU Fourth Applicant: WITIYANA MARIKA Fifth Applicant: BANULA MARIKA Sixth Applicant: GURUMBINBUY MARIKA Seventh Applicant: MUNURRKITJI MARIKA Eighth Applicant: WANYUBI MARIKA Ninth Applicant: WANINYA MARIKA Tenth Applicant: DJARRAMBAL MARIKA Eleventh Applicant: WURRULUNGA MARIKA Twelfth Applicant: BAKAMUMU MARIKA Thirteenth Applicant: WULWAT MARIKA Fourteenth Applicant: WUYULA MARIKA Fifteenth Applicant: NGAPANDALA MARIKA Sixteenth Applicant: YALUMUL (BRUCE) MARIKA Seventeenth Applicant: DJALINDA ULAMARI