Consideration
36 As may be seen, the submissions on behalf of those opposing the State's interlocutory applications tended to travel beyond the key issues raised by those applications which are whether there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present, and whether there are any discretionary considerations.
37 The most significant discretionary consideration is the likely contribution of the document to achieving justice in the other proceedings. In my opinion, matters of pure case management are not of substantial weight at this point, particularly when it is not known whether the potential effect of the orders sought is small or large.
38 I am not persuaded that any of the submissions put on behalf of those opposing the State's interlocutory applications provides a basis to disentitle the State from the orders which it sought, if there was a proper basis for those orders granting leave to the State to use documents or information in one or more of the three applications, other than the application in which the documents or information were disclosed.
39 For example, there is no evidence, and it is not self-evident, that the orders sought will increase the scale of any party's litigation. What I do find is that there are some commonalities across the four matters and the State needs to address, for example, the regional society contended for in each matter and should as a matter of achieving justice in the other three of the four matters be permitted do so with reference to material which is not confined to each individual matter alone.
40 In Hearne v Street [2008] HCA 36; 235 CLR 125 at [96] the plurality judgment stated the Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman v Home Office) obligation as follows:
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…
41 I have described the documents sought to be provided to the parties' experts at [5] above. The categories of documents include lay affidavits, expert reports, outlines of evidence and notices to adduce. It is well established that the Harman v Home Office obligation attaches to these categories of documents: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223; Re Addstone Pty Ltd (in liq); Ex Parte Macks (1998) 30 ACSR 156 at 160; Owners - Units Plan No. 3676 v Morris Construction Corp Pty Ltd [2018] ACTSC 149 at [9]-[12].
42 Each of these documents was disclosed by the relevant party pursuant to orders of the Court. A Harman v Home Office obligation is therefore owed by the receiving party to the Court in respect of each of these documents. I note that, as the obligation is owed to the Court, the attitude of the party which produced the document is not determinative of whether the party under the obligation should be released. It is, however, relevant to that question: see [45] below.
43 The Harman v Home Office obligation has a content which does not trespass on an inconsistent legal obligation: see Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 398; ATPR 42-224 at [13]. Another way of framing that proposition is that compliance with such a compulsory procedure is not relevantly a use of the documents in question: Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) [2018] FCAFC 38 at [37].
44 Presently, no Court order has been made, or other relevant compulsory step taken, which requires the State or any other party to provide the documents in question to the parties' experts for purposes relating to the proposed conferences. Although orders in each proceeding require that there be a conference or conferences before a Registrar, the proposal that those conferences be held jointly derives from the 19 September 2018 email from the Senior Native Title Case Manager. It follows that leave of the Court is required to allow that proposed use.
45 The question whether leave should be granted is based on whether there are "special circumstances": Crest Homes PLC v Marks [1987] AC 829 at 860. As Burchett J said in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-9, the expression "special circumstances" is "liable to be misunderstood unless care it taken to ask and answer the question, special in relation to what?". The test was considered by Wilcox J in Springfield Nominees at 225, where his Honour said:
… 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.
In Australian Trade Commission v McMahon (1997) 73 FCR 211, Lehane J, at 217, cited both these cases in support of the proposition that special circumstances will "fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings".
46 In my opinion there are special circumstances which justify releasing the State and the other parties from any Harman v Home Office obligation they owe in respect of the documents received by them. This conclusion is based on a number of reasons.
47 First, and principally, as Ms Snape's evidence demonstrates, it is clear at this interlocutory stage that there is the potential for evidentiary overlap in the four proceedings. It follows that use of the documents from one proceeding in the joint conferences has the potential for achieving justice in each of the other proceedings, as well as expediting their progression to final determination.
48 This consideration is particularly strong in the case of the Waangalu and Wulli Wulli #3 applications, which currently concern partly overlapping claim areas: see s 67(1) of the Native Title Act 1993 (Cth). As I have found at [39] above, there are factual commonalities between the four proceedings.
49 Second, for present purposes and until further order, use of the documents will be confined to the experts and the purposes of the four proceedings. This operates to remove prejudice to the authors of the documents and the producing party.
50 Third, no party has established that any of the documents relevantly contain personal data or commercially sensitive information, but in any event accepted that making material available to experts would not prejudice any such interest.
51 Fourth, the documents in question were produced by one of the applicants in the four proceedings, and not by a third party. Each of those applicants will be represented in the experts' conference, a process itself designed to narrow issues in dispute and expedite the efficient progress of the proceedings.
52 In my opinion, the use of the documents or information by the State and by each of the applicants is reasonably required for the purposes of doing justice between the parties in the other proceedings. There is actual or potential overlap. I also refer in particular to the unchallenged statements of Dr Kenny, the State's nominated expert across the four matters, that the nature of the pleadings in the four matters requires the State to address the regional society contended for in each matter but, unless the orders sought by the State are made, she may only do so with reference to material in each individual matter alone. Further, Dr Kenny has informed Ms Snape that the filing of separate reports referring only to material from a single matter would result in fractured reporting which would not give the whole picture across the four matters.