FEDERAL COURT OF AUSTRALIA Smirke on behalf of the Jurruru People v State of Western Australia [2017] FCA 825 File numbers: WAD 6007 of 2000 WAD 327 of 2012 WAD 490 of 2016 Judge: BARKER J Date of judgment: 5 July 2017 Catchwords: PRACTICE AND PROCEDURE – interlocutory application to restrain counsel from acting for applicant or respondents in proceedings – where proceedings involve overlap dispute – conflict of interest – whether counsel acting against interests of former client – whether counsel in possession of confidential information relevant to overlap dispute Cases cited: Kallinios v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Date of hearing: 5 July 2017 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 22 Counsel for the Yinhawangka Gobawarra Applicant: Ms T Jowett Solicitor for the Yinhawangka Gobawarra Applicant: Cross Country Native Title Services Counsel for the Jurruru Respondents: Mr A Sharpe Solicitor for the Jurruru Respondents: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr G Ranson Solicitor for the State of Western Australia: State Solicitors Office ORDERS WAD 6007 of 2000 BETWEEN: TOBY SMIRKE & ORS (JURRURU) Applicant AND: STATE OF WESTERN AUSTRALIA & ORS Respondents JUDGE: BARKER J DATE OF ORDER: 5 JULY 2017 THE COURT ORDERS THAT: 1. As to the application of the Yinhawangka Gobawarrah applicant in WAD490/2016 for an order that Mr S. Wright cease acting for the Jurruru #1 applicant in WAD6007/2000, the Jurruru #2 applicant in WAD327/2012 and the Jurruru respondents in WAD490/2016, the application be dismissed and the Jurruru applicants/ respondents have liberty to apply for costs in relation to the costs of that application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS WAD 327 of 2012 BETWEEN: TOBY SMIRKE & ORS (JURRURU #2) Applicant AND: STATE OF WESTERN AUSTRALIA Respondents JUDGE: BARKER J DATE OF ORDER: 5 July 2017 THE COURT ORDERS THAT: 1. As to the application of the Yinhawangka Gobawarrah applicant in WAD490/2016 for an order that Mr S. Wright cease acting for the Jurruru #1 applicant in WAD6007/2000, the Jurruru #2 applicant in WAD327/2012 and the Jurruru respondents in WAD490/2016, the application be dismissed and the Jurruru applicants/ respondents have liberty to apply for costs in relation to the costs of that application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS WAD 490 of 2016 BETWEEN: ROY TOMMY & ORS (YINHAWANGKA GOBAWARRAH) Applicant AND: STATE OF WESTERN AUSTRALIA Respondents JUDGE: BARKER J DATE OF ORDER: 5 jULY 2017 THE COURT ORDERS THAT: 1. As to the application of the applicant for an order that Mr S. Wright cease acting for the Jurruru #1 applicant in WAD6007/2000, the Jurruru #2 applicant in WAD327/2012 and the Jurruru respondents to the Yinhawangka Gobawarrah application WAD490/2016, the application be dismissed and the Jurruru respondents have liberty to apply in relation to the costs of that application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 On 5 July 2017, having heard from the relevant parties, I dismissed an application made by the Yinhawangka Gobawarrah (YG) applicant that Mr Stephen Wright of counsel cease acting for the Jurruru or Jurruru #2 applicants, or the Jurruru respondents to the Yinhawangka YG application, WAD490/2016. 2 These are my reasons for so doing. 3 By reference to authority, the YG applicant submitted that the Court has an "inherent" jurisdiction to restrain a legal practitioner, including a barrister, from acting in a matter. It submitted the foundation of the Court's jurisdiction is the fiduciary obligation of a lawyer and the need to avoid a conflict of duty or interest. In particular, by reference to Kallinios v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at 76 (Brereton J), the YG applicant contended that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice required that Mr Wright should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. 4 In particular, the YG applicant relied on what Mr Roy Tommy stated in his affidavit dated 6 June 2017 at [17] to [22], as follows: 17. There have been a lot of issues and matters to deal with in the Yinhawangka Part A and Part B claims, since the formation of these claims in 2010. We are still dealing with these things now, and we are making progress. These matters and issues include: (a) Genealogical information gathering and confirmation; (b) The connection and traditional country of the Yinhawangka ancestors named in the Yinhawangka Part A, Yinhawangka Part B and Yinhawangka Gobawarrah claims. (c) The different areas that different Yinhawangka people / families speak for in the Yinhawangka Part A and Part B claim areas and the Yinhawangka Gobawarrah claim area, under traditional Yinhawangka laws and customs; (d) The best way to go about heritage surveys on Yinhawangka country in order to respect traditional laws and customs; and (e) The right way to go about making decisions about country and native title business, under traditional Yinhawangka laws and customs. 18. Yamatji Marlpa Aboriginal Corporation (YMAC) lawyers have acted for the Yinhawangka Part A and B claim applicants since these claims were formed in 2010. The YMAC lawyers acting for these claims have received and/or had access to a lot of confidential information about these and other matters and issues, through being our lawyers. Based on my role as one of the people who comprise the Yinhawangka Part A and Part B applicant, and my close involvement in claim business, I believe the information includes, amongst other things: a. Genealogies; b. Anthropologists' confidential notes and reports relating to the 3 apical ancestor family descent groups that make up the Yinhawangka Part A and Part B claims, and to Yinhawangka connection information about different parts of Yinhawangka country, including the Yinhawangka Gobawarrah claim area; c. Confidential sites information provided by claimants from the 3 family descent groups; d. Statements and discussions of claimants from the 3 family descent groups at confidential claim group and working group meetings; and e. Witness statements and drafts. 19. Stephen Wright has been the barrister for the Yinhawangka Part A and B claim applicants. I am not sure if he is still acting as the barrister for the Yinhawangka Part A and Part B claim applicants, or whether YMAC is planning to ask him to act in future. 20. The YMAC lawyers arranged for him to provide advice and assistance with a negotiation and agreement with BHP. They also brought him in to prepare preservation evidence and represent the Yinhawangka Part A and Part B claim applicants at the Yinhawangka preservation evidence hearing in 2014. I believe that during this time he had access to a lot of confidential Yinhawangka information of the kind I refer to in paragraph 18 above. I believe this information is relevant not only to Yinhawangka native title in the Yinhawangka Part A and B claim areas but also to Yinhawangka native title in the Yinhawangka Gobawarrah claim area. 21. I was very concerned when I first heard that Mr Wright was acting for the Jurruru #1 and Jurruru #2 claim applicants in relation to the Yinhawangka Gobawarrah claim area, because there is a dispute between Yinhawangka and Jurruru people about native title in this area. I didn't think it was right that Mr Wright should act against Yinhawangka people given that he acted for Yinhawangka people and accessed a lot of confidential Yinhawangka information, including information relevant to the Gobawarrah area that is in dispute with the Jurruru. 22. I don't recall YMAC or Mr Wright ever telling the Yinhawangka Part A and Part B claim applicant or claim group that Mr Wright was planning to represent the Jurruru in relation to the disputed country on the Gobawarrah, or asking or receiving permission to do this. I was never asked and I never gave permission for him to do this. 5 On behalf of the YG applicant, the submission was made that the concerns expressed by Mr Tommy are well founded. It was said the information to which Mr Wright had access while representing the Yinhawangka Part A and Part B claim applicants is clearly information of a confidential kind, with respect to which Mr Wright holds a duty of confidence to members of the Yinhawangka Part A and Part B claim groups; and that this is especially so in regard to information Mr Wright would have had access to (and would have been required to seek access to in order to prepare properly) in the lead up to the hearing of the Yinhawangka preservation evidence in 2014, at which he appeared as counsel on behalf of the Yinhawangka Part A and Part B applicants. 6 It is contended that the information in question was or is culturally and legally sensitive and of direct relevance to the proceedings regarding the area of overlap currently in dispute between the YG applicant and the applicant in the Jurruru and Jurruru #2 claims. It is said that it is confidential information in relation to which there is a real possibility that Mr Wright may be required, in order to act in the best interests of the Jurruru and Jurruru #2 applicants, to disclose and/or use to the potential detriment of those Yinhawangka people who claim native title rights and interests in the overlap area. 7 The YG applicant also submitted that the fact that there is no overlap between the Yinhawangka Part A and Part B claims and the Jurruru and Jurruru #2 claims does not remove or diminish the duty of confidence, and nor does the fact that the Yinhawangka Part A and Part B claim applicants in the claim group descriptions are not the same as the YG claim group description. It submitted they are Yinhawangka claims concerning the traditional connection, rights and interests of Yinhawangka people to the respective claim areas and that the duty of confidence is owed to the applicant and claim group as a whole, and also to members of the claim group who have provided information or in relation to whom the information pertains. 8 Accordingly, it submitted that the nature and extent of confidential information provided to claim lawyers is extensive in native title proceedings, due to the factual and legal complexity of the matters required to be proved and the cultural and customary issues affecting ownership, control and disclosure of cultural information. 9 Finally, it said that the confidential information that was acceptable to Mr Wright as a result of acting in the Yinhawangka Part A and Part B claims "is undoubtedly of direct relevance to matters in issue" in the Jurruru and YG overlap dispute. 10 While Mr Wright was not served and did not personally respond to the YG application that he cease to act as a barrister, the Jurruru respondents did and invited the Court to deal with the substance of the matters on the basis that it was an application to restrain the Jurruru from continuing to retain Mr Wright as their counsel. The hearing of the application proceeded on this basis. 11 The Jurruru respondents, noting that it is a very serious matter to seek an order that a legal practitioner should be restrained from continuing to act in a proceeding, submitted that any other such allegation, including that a lawyer was breaching their fiduciary obligation of confidence to a former client, should be made on the basis of detailed and substantiated evidence regarding the confidential information of the former client which is said to be at risk of disclosure. 12 In this instance, the Jurruru respondents submitted that the affidavit material relied on in support of the present application was vague, unsubstantiated and speculative. 13 Acknowledging that the Court has an implied power (rather than an "inherent" one) to make an order of the kind sought, I accept the submission made on behalf of the Jurruru respondents that in a case such as the present, there is something in the nature of an onus on the YG applicant to identify with some precision both the confidential information which is said to have been given to Mr Wright and the reason why this information is or may be relevant to the issues in dispute between the YG applicant and the Jurruru people in respect of the overlap dispute between them. 14 The facts of the matter more generally are that Mr Wright historically was briefed by the solicitors for the applicant in the Yinhawangka Part A and Part B claims to represent that party in negotiations with the mining company, BHP, regarding a native title agreement. 15 He was then subsequently retained by the same solicitors, acting for the Jurruru, to act for the Jurruru. That retainer commenced in late 2012 and continues. 16 In early 2014 Mr Wright was again retained by the solicitors for the Yinhawangka Part A and Part B applicants to represent them at the taking of preservation evidence in July 2014. 17 On the face of it, the YG applicant is not and has never been Mr Wright's client. That, of course, is not the end of it, if he in fact is possessed of materials through his retainer on behalf of the Yinhawangka Part A and Part B applicants that may be relevant to the Jurruru clients. I accept that Mr Wright is not presently acting against the interests of his former client, the Yinhawangka Part A and Part B applicants. There is no dispute between them and the Jurruru. I also accept the fact that the persons making the YG claim are some of the members of the claim groups in the Yinhawangka Part A and Part B claims. But that does not necessarily mean that Mr Wright is acting against the interests of the Yinhawangka Part A and Part B applicants or possessed of information that may make his professional position as a barrister difficult. 18 The fact of the matter is that none of the material put before the Court contains more than generalised contentions that Mr Wright has had access to materials in the course of acting for the Yinhawangka Part A and Part B applicants that is relevant to the current overlap dispute between the Jurruru and the YG applicant. There has been no real attempt, in my view, to identify any particular material or category of material, beyond the very general statements made and set out above, which are said to be relevant to the overlap dispute. 19 The mere fact that some persons such as Mr Tommy were members of the broader Yinhawangka Part A and Part B claim groups is not sufficient, in my opinion, in the circumstances of this case, to cause the Court to make an order requiring Mr Wright to desist from acting for the Jurruru respondents. 20 I accept, at a general level, that the fact that Mr Wright once acted for the Yinhawangka Part A and Part B applicants may, in a first blush way, raise the question whether he has any conflict in acting for the Jurruru applicants in the overlap dispute with the YG applicant, where the YG applicant contains some persons who were members of the Yinhawangka Part A and Part B claim groups. But there needs to be, in the circumstances of this case, the identification of more specific information that Mr Wright is possessed of, that is relevant to the overlap dispute, before he could reasonably be restrained by an order of this Court from acting as a barrister in the overlap dispute. The claim of a conflict is so generalised that I consider the alleged conflict to be neither apparent not real. 21 For these reasons, I dismissed the application of the YG applicant for the order affecting Mr Wright's ability to continue to act as a barrister for the Jurruru respondents. 22 The order thus made was: (1) As to the application of the Yinhawangka Gobawarrah applicant in WAD490/2016 for an order that Mr S. Wright cease acting for the Jurruru #1 applicant in WAD6007/2000, the Jurruru #2 applicant in WAD327/2012 and the Jurruru respondents in WAD490/2016, the application be dismissed and the Jurruru applicants/ respondents have liberty to apply for costs in relation to the costs of that application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 21 July 2017