ANTHONY WATSON in capacity as the Applicant in native title determination application WAD 6002 of 1998 in the Federal Court of Australia

IGNATIUS PADDY in capacity as the Applicant in native title determination application WAD 6002 of 1998 in the Federal Court of Australia

Practice and procedure - Application for further and better discovery - Proportionality - Turns on own facts

Land Administration Act 1997 (WA)

Native Title Act 1993 (Cth)

First Defendant : State Solicitor for Western Australia

Second Defendant : State Solicitor for Western Australia

Third Defendant : State Solicitor for Western Australia

Fourth Defendant : State Solicitor for Western Australia

(This judgment was delivered extemporaneously on 27 March 2013 and has been edited from the transcript.)

1 This is effectively an application by the plaintiff for further and better discovery of documents. It arises in somewhat unusual circumstances, no doubt due to the fluidity and flexibility with which cases are managed in the Commercial and Managed Cases (CMC) list generally and this is such a case.

2 No order for general discovery has been sought or made and indeed such orders are increasingly rare, particularly in the CMC list. Rather, discovery and inspection has been given by each of the defendants without the need for a specific order, and in the case of the defendants against whom the application is brought, namely the first and seventh defendants, discovery has been given in the form of a series of tranches by reference to categories which evolved during discussion between the parties and in some cases with some prompting from the Court.

3 That is a process which is to generally be encouraged. It is a sensible and practical process which enables discovery to proceed in a manner which is proportionate to the issues in the case and which best serves the interests of the parties and most particularly the interests of justice.

4 The categories by reference to which the first defendant (the State) has given informal discovery, through the process that I have described, are set out in a number of places but can be conveniently found at page 46 and following of the affidavit of James Conrad Walkley sworn 6 March 2013. Those categories correspond in large measure to a particular paragraph of the statement of claim to which I will refer in more detail in due course, being par 27, and that is the paragraph which is said to justify the application that is made today.

5 Within those categories, discovery is described by reference to the State's knowledge prior to or in early September 2011 as to whether certain matters, in relation to the native title claim by the Goolarabooloo and Jabirr Jabirr people (joint claim), existed. However, it is clear and I think it is conceded on the evidence that the approach taken by the State was to use 1 June 2011 as the indicative cut-off point for the purposes of search so that the State can only assert that documents which came into existence on or after that date and which fall within the enumerated categories have been comprehensively discovered informally, although it is the case that some documents which came into existence earlier than that date have in fact been discovered because they came to attention during the course of the process undertaken by the State.

6 The process undertaken by the State to produce the documents which have been discovered is described in a number of affidavits and it is clear that it has been an extensive, time-consuming and expensive process.

7 The seventh defendant, the Kimberley Land Council Aboriginal Corporation (KLC), has taken a rather different approach to the State, no doubt because of the different characteristics of that entity. It has not taken an approach which is limited by any particular point in time so that it has not used any indicative cut-off date. However, its discovery has been given by a process of searching its files which relevantly commenced in February 2009. What it has done is to use the hard copy files which are maintained in its office as the basis for its discovery. Those files have been reviewed and documents produced by reference to what the KLC understood to be the issues in the case. The KLC has not gone through the electronic data which was generated during the relevant time, and affidavit material explains the practical difficulties and costs that would flow from undertaking searches at that level.

8 Very generally described, the plaintiff's application effectively requests that the categories that have been used by the State continue to define the ambit of discovery, but that the State now search all documents going back to 1 January 2010 by reference to those categories. By 'documents', I include the documents that are in electronic form which are within the custody, possession or power of the State. In addition, certain specific categories of documents are sought, which have been enumerated in a list prepared by the plaintiff.

9 I infer that the plaintiff seeks the same from the KLC by reference not only to hard copy but also by reference to electronic documents. So, in the case of the State, the main issue is whether the search should extend back to cover all documents coming into existence after 1 January 2010. In the case of the KLC, the main issue is whether the search should extend to electronic data.

10 The contemporary principles that govern the provision of discovery are conveniently set out in the defendants' submissions which I adopt: Singh v Friedman [2013] WASC 78 [3] [4] (Allanson J). Put shortly, it is now established that general discovery is no longer regarded as a right. Rather, the extent of the obligation to give discovery and the entitlement to discovery will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court 1971 (WA) and in particular the principles enunciated in O 1 r 4A and r 4B. Those principles include and expressly embody the notion of proportionality, which requires a court, before ordering any interlocutory process, to assess whether the forensic benefit to be derived by that process is proportional to the cost and delay which will flow from the undertaking of the process, having regard to the value, importance and complexity of the subject matter in dispute and the financial position of the parties.

11 In the context of discovery, this means that when issues arise with respect to the breadth of the discovery to be ordered, the ambit of discovery will be determined taking into account the cost and delay associated with the provision of discovery over a broader ambit, as compared to the forensic benefit likely to be derived from the provision of discovery over that broader ambit. Unless the cost and delay involved in the provision of that discovery is proportionate to the forensic benefit likely to be derived from a broader ambit of discovery, and to the value and importance or complexity of the subject matter of the proceedings, a narrower ambit of discovery will be ordered.

12 The only proposition I would add to the principles enunciated in the defendant's written submissions is the proposition that at least in cases such as this, when general discovery has not been sought or ordered, adjectival or indirect relevance of itself will no longer determine whether or not a document will be ordered to be discovered, and in particular the approach to general discovery enunciated in cases like Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 will no longer guide the court in relation to issues with respect to informal discovery.

13 Rather, those issues will be determined by the balancing of the likely forensic benefit to be obtained against the risk of cost and delay in the manner that I have described, viewed in the context of the value, importance and complexity of the subject matter of the proceedings. In that context, the forensic significance of the issue in respect of which discovery is sought and the relevance of the documents sought to that issue, in a qualitative sense, will be pertinent to the proper disposition of any application for discovery.

14 It follows from these observations that it is necessary to put the present contest between the parties in its proper forensic context in order to undertake the balancing process which the principles enunciated in O 1 r 4A and r 4B require.

15 First, attention must be directed to the value, importance and complexity of the subject matter of these proceedings. There is no doubt that the subject matter of these proceedings is of great value and importance to all parties, as it concerns the legal validity of certain steps bearing upon the prospective development of a hub for the liquification of natural gas which the plaintiff considers will have a profoundly adverse effect upon his cultural heritage. Nor is there any doubt as to the complexity of these proceedings.

16 Next, attention must be given to the statement of claim and in particular the cause of action which is said to justify the discovery sought and which is enunciated in the section headed F in the statement of claim and which is entitled:

The Goolarabooloo people have been denied their implied right to take all necessary steps to become entitled to exercise Procedural Rights under the LAA [Land Administration Act 1997 (WA)] and the NTA [Native Title Act 1993 (Cth)] in relation to the compulsory acquisition of their native title rights and interests without unlawful interference by the State.

17 I engaged counsel for the plaintiff in extensive debate on the precise nature of this cause of action, and I have to say that notwithstanding the assistance which he provided during the course of that debate, to me the cause of action remains somewhat obscure. However, no application has been made to strike out this cause of action. To the extent that factual issues are joined on the pleadings that are relevant to this cause of action, it is appropriate for me to proceed to deal with the discovery application on the basis that issue will be joined on those factual controversies at trial and that they will be contested on the evidence. That is of course not to say that it does not remain for me to evaluate the forensic significance of the particular documents or classes of documents that are sought as and by way of further and better discovery.

18 The nature of the cause of action is identified in pars 61 67 of the statement of claim and is then enunciated more generally in par 70 of the statement of claim. For present purposes it is pertinent to note that in par 64 it is asserted that by reason of the proper construction of the Land Administration Act 1997 (WA) (the LAA) and the Native Title Act 1993 (Cth) (the NTA):

[I]t is implicit that persons claiming to hold native title should have the opportunity to take all necessary steps to become entitled to exercise Procedural Rights under the LAA and the NTA in relation to the compulsory acquisition of their native title rights and interests without unlawful interference by the State.

19 That assertion is the basis for another assertion apparently implicit, but not expressly enunciated in the statement of claim, to the effect that the State (at least) is obliged to act in such a way as to not deny that opportunity to prospect native title claimants.

20 Each of those assertions remain areas of obscurity in relation to this cause of action. However, as I have noted, I am proceeding on the assumption that those obscurities will be eliminated by further argument at trial.

21 Cast in more general terms, essentially what is said is that because the LAA precludes the compulsory taking of land in circumstances in which the procedural rights conferred by the NTA have not been afforded, it is implicit in the scheme of that legislation that persons should be given the opportunity to achieve the status of registered native title claimants so that they can exercise the procedural rights given to such claimants, and that in turn gives rise to some implicit obligation on the part of the State not to interfere with any process which would enable prospective claimants to achieve that status.

22 Subsequent paragraphs of the statement of claim go on to assert that the State has breached that implicit obligation, in par 65 by conduct which is identified by reference to earlier portions of the statement of claim. It is sufficient to note that all the conduct on the part of the State which is said to amount to a breach of the obligation to which I have referred occurred on or after 7 September 2011.

23 Paragraph 66 goes on to characterise the conduct which is the subject of the allegations in par 65. Again I reiterate that all the conduct that is referred to in par 66, like par 65, is said to have occurred on or after 7 September 2011. That conduct is characterised as having induced or procured the applicants to the joint claim to continue to maintain that claim for the improper purpose of preventing the Goolarabooloo people from becoming registered native title claimants in their own right. It is said that the State interfered with the proper administration of justice in relation to the conduct of the joint claim proceedings and thereby prevented the Goolarabooloo people from becoming entitled to exercise the procedural rights under the LAA and the NTA that would flow from their registration as native title claimants.

24 It became clear from the discussion I had with counsel for the plaintiff that essentially, as the words imply but do not expressly allege, the claim should be construed as an allegation of abuse of process and an allegation that the State either facilitated or encouraged an abuse of process by the maintenance of proceedings for a collateral purpose. In a nutshell, it is said that the collateral purpose was the extraneous purpose of preventing the Goolarabooloo people from becoming registered claimants in their own right because under the NTA, it is impossible to become a registered native title claimant while you are a member of an existing claimant group. It is said that the purpose of preventing such registration is extraneous to the object of the native title proceedings, which under the NTA is the recognition and declaration of native title rights.

25 No doubt I have not put that as eloquently as the plaintiff would through counsel, but it is sufficient, I think, to illustrate that the essence of the claim that is being advanced is that there was from a date in early September 2011 an abuse of process by the maintenance of what I have characterised as the joint claim for the extraneous or collateral purpose to which I have referred. It is said that the State was aware of that abuse of process, and by its actions facilitated or encouraged that abuse of process, which is in turn a breach of the implicit obligation which is referred to in paragraph 64 of the statement of claim, and which is said to arise from the proper construction of the LAA and the NTA.

26 The additional discovery that the plaintiff seeks does not bear upon the actions of the State that are said to constitute the breach of the obligation but rather upon the proposition that there was an abuse of process and that the State was aware of that abuse of process. That proposition is said to depend upon, to some extent at least, the allegations made in par 27 of the statement of claim. That paragraph is relevant because in par 66, to which I have already referred and which is the paragraph which characterises the conduct of the State to which attention is drawn by par 65, reference is made to par 27 as providing the circumstance in which the conduct of the State is said to result in the characterisation identified in par 66. So par 27 is said to be the circumstances which give to the conduct of the State a quality which is identified in par 66, being the quality of abuse of process and the improper denial of procedural rights, by preventing the Goolarabooloo people from achieving the status which they need to become entitled to exercise those procedural rights.

27 Rising to a level of some generality, the additional discovery sought is said to be justified by reference to the issues in the case that will go to the purpose of the claimants in maintaining what I have described as the joint claim on or after early September 2011, and the knowledge of the State with respect to the facts that rendered the actions of the claimants in the joint claim an abuse of process. Cast in those terms, it is clear that it is the purpose of the claimants in the joint claim and the knowledge of the State on or after September 2011 that is relevant to the establishment of the cause of action. That is conceded by counsel for the plaintiff.

28 As I have mentioned, the State has provided discovery by reference to 13 nominated categories of documents in respect of all documents which have come into existence on or after 1 June 2011, being a period some three months prior to the relevant date for the purposes of the issue of abuse of process and the knowledge of the State at the time it undertook the conduct complained of.

29 Therefore, the question that is posed by the application requires an assessment of the forensic benefit which would be obtained by going back further in time than the point in time in respect of which documents have already been provided, having regard to the evidence which is before me with respect to the burden that would be imposed by requiring the State to replicate the steps it has already taken in relation to a broader category of documents, being all documents that have come into existence as and from 1 January 2010.

30 The extent of the burden to be imposed upon the State is to be evaluated in a context in which there is affidavit evidence before me to the effect that the defendants at least perceive a significant commercial and governmental purpose to be served in the early resolution of these proceedings. It is not suggested that there is a particular date by which these proceedings must be resolved in order to avert commercial risk, but there is affidavit evidence before me which is plausible and which is uncontested to the effect that the longer these proceedings remain unresolved, the greater the potential hazard to the project, relating to the development of facilities for the onshore liquification of natural gas, which is at the heart of these proceedings. So, in this case, in addition to the issues of cost and the general considerations of delay, which of course are relevant to all proceedings, there are specific considerations pertinent to the consequences of delay that inform the decision properly taken in these proceedings.

31 In support of the proposition that the State should be ordered to go back earlier in time than the point which they have presently chosen, my attention was directed to documents which have been discovered by the State (and the second - fourth defendants) or by the KLC that precede the date in June 2011 chosen by the State. It is a fair inference from the documents to which I was taken that, as one would expect, the situation in relation to the development of the native title claim that was then on foot on behalf of the joint applicants, the Goolarabooloo and the Jabirr Jabirr people, waxed and waned somewhat, as did negotiations between those people and their representatives, the KLC, and the State.

32 It is clear from those documents that it was the desire of the State to get to a situation in which it could negotiate a land use agreement with registered native title claimants which would enable the project for the provision of an onshore facility for the liquification of natural gas to proceed. It is clear from the documents to which I was taken that there were tensions within the various groups that were represented in the joint claim and, as counsel for the plaintiff points out, that is not at all unusual in native title proceedings of this kind.

33 The events that occurred during 2010 may or may not shed light on the purpose of the claimants at the relevant point in time, which is September 2011, and the knowledge of the State at that relevant point in time. What is clear is that the evaluation of the extent to which events occurring in 2010 shed light upon the critical issue, which is the purpose of the claimants and the knowledge of the State in September 2011 and thereafter, would necessitate a significant and detailed inquiry into all relevant circumstances and events that occurred during 2010 in order to properly understand what I have described as the waxing and waning of events during that year.

34 On the information presently available to me, I am not persuaded that ordering the interlocutory processes of the court to enable such a detailed inquiry in relation to events which occurred during 2010 is justified, having regard to the fact that the critical issue said to justify discovery is the purpose of the claimant and the knowledge of the State as at September 2011.

35 From the documents that I have been taken to, it is clear that there were differences between the Goolarabooloo people on the one hand and the Jabirr Jabirr people on the other. Those differences were objectively demonstrated at different times when, for example, a claim was lodged on behalf of the Jabirr Jabirr people separate and distinct from the joint claim, and at another point in time when a claim was lodged on behalf of the Goolarabooloo people which again was distinct and inconsistent with the joint claim.

36 It is a fair inference from the documents I have seen that there were, at different points of time, attempts to hold those groups together in order to enable a land use agreement to be concluded, and it is an objective fact that agreement was eventually reached. How that was done, and the circumstances in which it was done, could well be the subject of a major inquiry of its own, the time, expense and forensic effort of which would, I think, be very substantial compared to the much narrower scope of the issues that are raised by the issue in this case which concerns the purpose of the native title claimants as and from September 2011 and the knowledge of the State with respect to that purpose. It seems to me that in this context the interlocutory processes of the court should not be utilised to enable what could be a very substantial inquiry which is at best of marginal relevance to the real forensic issues in this case.

37 Another way of justifying the conclusion which I have reached is that on the information presently available to me, there is no reason to suppose that documents that would be provided on discovery from a period more than three months earlier than the relevant date would significantly enhance the court's capacity to adequately and correctly determine the issues that arise for determination in the case. In particular, put another way, from the obverse position, there is no reason to suppose that the documents that have already been provided by the State do not provide adequate information to enable the court to assess the extent to which the State was aware of the facts that are alleged in par 27 of the statement of claim, or the extent to which those facts existed for the purpose of ascertaining whether or not the purpose of the native title claimants in maintaining the joint claim gave rise to an abuse of process.

38 Merely pointing to documents that exist earlier in point of time than 1 June 2011, and which on their face appear to be possibly relevant to the issues raised by par 27 of the statement of claim, does not address the critical issue which arises for determination, which is whether the forensic benefit to be derived from ordering discovery of a broader class of documents justifies the cost and delay that would flow from the making of such an order. In the context of the evidence relating to the cost and delay which would flow from expanding the ambit of discovery in the manner sought, it is necessary for the plaintiff to point to some way in which the provision of discovery of those documents would enhance the information which has already been supplied. There is no evidence that would sustain that conclusion.

39 In relation to the KLC, on the information currently available to me, I see no reason to suppose that the hard copy documents which have been researched for the purpose of the discovery which has been provided to date, and which I understand is ongoing, is an insufficient database for the provision of relevant documentation to the plaintiff. It is also particularly significant to note that the primary category of documentation sought by the plaintiff concerns communications between the KLC and the State. The State, as I have mentioned, has taken the approach of discovering all documents, whether hard copy or electronic. So in the case of communications to or from the State the plaintiff will no doubt receive from the State all electronic documents relevant to the categories identified which go back to 1 June 2011. For the reasons I have given, on the information available to me that provides the plaintiff with sufficient material with which to adequately advance his cause.

40 I will now go through the specific paragraphs of the minute provided by the plaintiff identifying the specific categories of further discovery sought. The numbers I am using are by reference to the numbering on the most recent minute produced by the plaintiff. As I have mentioned, par 1 deals with communications between the nominated parties representing the State and nominated representatives of KLC. It seems to me that the categories by reference to which the State has already given discovery sufficiently cover the ground identified by that paragraph, and that therefore an order of further discovery is not necessary.

41 Paragraphs 2(a), (e) and (g) remain contentious. In relation to paragraph 2(a), it is said that all documents informing the document that has been provided by the State, a briefing note entitled 'Contentious Issues' regarding the progress of the joint claim, should be provided. That document is dated 5 May 2010. For the reasons I have given, it does not seem to me that a broader range of documentation going back that far in time is necessary or justified at this stage.

42 Paragraph 2(e) concerns communications relating to the suspension of negotiations in relation to the joint claim during June 2010. Those documents would go to the process of waxing and waning to which I have referred, the inquiry into which does not appear to me to be justified by reference to the forensic significance of those issues. Category 2(g) concerns communications with respect to the use of a draft ethnographic connection report prepared by specified authors in April 2011. It does not seem to me that any communications on that topic which occurred in April 2011 bear sufficiently upon the critical issues of purpose and knowledge in September 2011 to justify an order for discovery.

43 In par 3, specific examples of documents sought are provided. Those in par 3(a) to (d) remain contentious. They all concern documents which came into existence in 2008 relating to such things as communications with solicitors representing different native title groups, and with respect to funding arrangements to be made for the provision of assistance to those groups. Given the fact that they were some three years or so prior to the critical point in time, it does not seem to me that their forensic significance justifies an order for discovery.

44 Also in par 3, contention remains in relation to subpars (h), (i), (j), (k), (l) and (m). All concern communications which occurred in either 2009 or 2010 with the exception of subpar (m) to which I will come. For the reasons I have given it does not seem to me that, given the point in time at which those communications occurred, they shed sufficient light on the forensic issues to justify an order for their discovery. Subparagraph (m) refers to communications that occurred in April 2011 relating to briefing notes concerning tension within the native title claim group. As I have indicated, it will be clearly and easily established at trial that there were continuing tensions within the native title claim group. The critical question for trial will be precisely what was the purpose of the claimants to the joint claim as at September 2011 and the knowledge of the State with respect to that purpose at that time and thereafter. The tensions which emerged from time to time before that point are of only marginal relevance at best, and would have to be viewed in their entire context.

45 Paragraph 7 is also contentious. It seeks all communications informing or relating to a report to Cabinet dated 5 March 2012. That report has been discovered. That report is the best evidence of the knowledge of the State, and it is unnecessary to go beyond that report by ordering what would be a very broadly based obligation of discovery covering all communications informing or relating to that report, those being words of potentially extremely wide import.

46 The remaining contentious categories are categories 9, 10 and 12 which essentially concern materials bearing upon the ethnographic evidence relating to the degree of connection between the native title claimants and the land the subject of the claim. It seems to me that this topic is far removed from the real issues in the case which concern the purpose of the State, given the allegation of abuse of process and the knowledge of the State. It would be quite inappropriate for this court to embark upon any attempt to assess the merits of the underlying native title claim in proceedings of this kind.

47 For these reasons it seems to me that no order should be made with respect to any of the categories of documents identified in the minute produced by the plaintiff.

48 However, the process of iterative discovery continues. The State has indicated a willingness to provide further documents and the KLC are also yet to provide further documents. It may well be that that process will identify further specific documents, or even contained categories of documents, which are of sufficient forensic utility to justify their discovery. For that reason I will give liberty to the plaintiff to apply for further specific orders with respect to discovery, but it will follow from what I have said that in order to obtain such an order, demonstration of the mere relevance of the document will not be sufficient of itself. What would be needed to justify an order would be a demonstration that discovery is forensically justifiable, having regard to the documents that have already been discovered, because it would add some dimension or aspect to the proof presently available to the plaintiff as a consequence of the documents that have already been discovered.

49 For those reasons I do not propose to make any orders with respect to further and better discovery.