Consideration
23 The history I have recorded above shows that the first leg of the first basis, viz obtaining the Sackett Report, is based on a misunderstanding on the part of the Bidjara People and their legal advisers. Clearly, the Brown River People do not wish to obtain the Sackett Report. Ms Jowett made that quite clear on at least two occasions. First, she clearly stated that at the 24 February 2012 directions hearing when she acknowledged the Sackett Report was privileged and it would be "inappropriate" for the Brown River People to seek to obtain a copy of it, or to rely upon it. Secondly, she confirmed that position at the callover on 9 March 2012. Further, with the stated reservation about any subsequent issue of waiver that might arise, Mr Waters reconfirmed that position at the hearing on 3 April 2012. On each of these occasions counsel made it quite clear that the Brown River People were seeking to engage Dr Sackett to prepare a "fresh" report based on his experience as an anthropologist with the Bidjara People. I obviously accept what both counsel told me about these matters. For these reasons, I do not consider the Bidjara People have made out the first leg of the first basis upon which they put this injunction application.
24 The second leg of the first basis concerns the Brown River People obtaining any of the contents of the Sackett Report. Consistent with the position they have taken on the first leg, there is no direct evidence before me that the Brown River People, or their legal advisers, have obtained a copy of the Sackett Report or some, or all, of its contents. Nor is there any evidence upon which I could draw an inference to that effect. On this aspect, I reject the suggestion (faint as it is) in Mr Hauff's second affidavit (see above at [17]) that this might be inferred from the request the Brown River People's legal advisers have made of Dr Sackett that he provide a "fresh" report and that he be available to attend the experts' conference in these proceedings. Self-evidently, in this context, a "fresh" report does not mean, or refer to, the existing Sackett Report or its contents. Nor does their proposal that Dr Sackett attend the experts' conference on their behalf support an inference that they (or he) intend to use the contents of the existing Sackett Report in that process. Indeed, to draw such an inference would involve rejecting the statements of counsel I have expressly accepted above (see at [23]). That particularly applies Ms Jowett's statement that the Sackett Report is privileged and it is, therefore, not open to the Brown River People to obtain a copy of it, or rely upon its contents. As I have observed below (at [28]-[29]), there is likely to be an amount of information obtained by Dr Sackett that he may quite properly make available to the Brown River People. For these reasons, I do not consider the second leg of the first basis for this application has been made out.
25 It follows that the Bidjara People have failed to make out either leg of the first basis for this injunction application.
26 The second basis, viz obtaining and using confidential information derived by Dr Sackett from the Bidjara People, raises somewhat different issues. To begin with, it is convenient to mention the obvious overlap between the information represented by the contents of the Sackett Report that is protected by legal professional privilege and "confidential information derived by Dr Sackett from the Bidjara People" for the purposes of conducting these proceedings. Self-evidently, these are two different ways of describing the same confidential information, viz that protected by legal professional privilege. As I have already noted above, it is not in dispute that the Sackett Report and its contents are subject to legal professional privilege. That being so, that privilege will extend to any confidential information that was communicated by a member of the Bidjara People to its legal advisers for the dominant purpose of conducting these proceedings: see Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67. This privilege will also extend to confidential communications passing between the legal advisers to the Bidjara People and Dr Sackett, or between members of the Bidjara People and Dr Sackett, provided that they are undertaken for the dominant purpose of conducting these proceedings: see Australian Competition & Consumer Commission v FFE Building Services Limited [2003] FCA 1181 at [48] per Wilcox J and Meteyard v Love (as Receivers and Managers of Southland Coal Pty Ltd) (2005) 65 NSWLR 36; [2005] NSWCA 444 at [121]-[122].
27 Aside from legal professional privilege, there may exist a separate basis upon which confidential information of the kind under consideration here could be protected. That is, if members of the Bidjara People have communicated confidential information about their beliefs, customs and traditions to Dr Sackett in good faith on the condition that that information was to be kept confidential: see Foster v Mountford and Rigby Ltd (1976) 14 ALR 71 at 74-5 per Muirhead J, Breen v Williams (1996) 186 CLR 71 at 128 per Gummow J and The State of Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 at [61].
28 Apart from any confidential information that is protected by one or both of these two principles, given the apparently lengthy involvement Dr Sackett has had with the Bidjara People, it would appear to be quite likely that during his work as an anthropologist Dr Sackett has obtained a large amount of information that was not obtained for the dominant purpose of conducting these proceedings, or that was not confidential at all, or, if it was, it was not imparted in good faith to him on the condition that that information would be kept confidential. In other words, neither of those two principles would throw a protective cover over every communication that has occurred between members of the Bidjara People and Dr Sackett during his professional life as an anthropologist.
29 It would appear to be this third category of information that the Brown River People wish to take advantage of. Provided that none of the information in this category falls into one or both of the first two categories described above, and subject to any other restrictions that may apply, eg a statutory provision or a contractual condition, there would appear to be no obvious legal impediment to the Brown River People obtaining and using it. This would extend to any confidential information Dr Sackett has obtained from any member of the Bidjara People that was either not obtained for the dominant purpose of conducting these proceedings, or was not imparted to him in good faith on the condition that that information was to be kept confidential.
30 It follows from this analysis that I do not consider the Bidjara People can validly obtain an injunction order against the Brown River People expressed in such broad terms as: "obtaining and using confidential information derived by Dr Sackett from the Bidjara People". Put inversely, the Bidjara People could only possibly obtain a restraining order insofar as they were able to establish that the confidential information concerned fell into one or both of the first two categories described above.
31 This conclusion does not prevent the Bidjara People obtaining an injunction order in relation to any confidential information derived by Dr Sackett from the Bidjara People that is covered by legal professional privilege. As I have already noted above, it is not in dispute that legal professional privilege applies to the Sackett Report and its contents. Further, as also noted above (at [26]), that privilege extends to any confidential communications that occurred between Dr Sackett and any members of the Bidjara People for the purposes of preparing that Report.
32 However, there is a number of other reasons why I do not consider it is necessary or appropriate to make the orders sought by the Bidjara People in relation to that confidential information. The first is that, in the absence of a dispute about the existence of the legal professional privilege attaching to that information, and in the absence of any evidence of a past or threatened breach of that privilege (see above at [23]-[24] and below at [33]) such an order is quite unnecessary. The second reason stems from the first. It is that, insofar as that confidential information has been derived via QSNTS, or Dr Sackett, from a member or members of the Bidjara People for the purpose of conducting these proceedings, as well as being covered by legal professional privilege, that information would also appear to fall within the terms of the consent orders made on 22 July 2011 (see at [9] above). While those consent orders do not expressly provide that such information will be kept confidential, I consider that obligation is a necessary concomitant of the relationship of solicitor (the Principal Legal Officer at QSNTS, Mr S Rind) and client (the Bidjara People) that underpins those orders and the legal professional privilege referred to above.
33 The third reason arises from the terms of the injunction order sought: see at 1 above. Insofar as it is proposed to apply to any information covered by legal professional privilege, it provides that the Brown River People should be restrained from obtaining or using "any information obtained in breach of legal professional privilege … from QSNTS and/or Dr Lee Sackett". At least two things may be said about this terminology. First, consistent with the observations I have already made from the perspective of the Brown River People and their legal advisers, there is no evidence before me that either QSNTS, or Dr Sackett, has provided any such information to the Brown River People, or intends to do so. In the absence of such evidence, there is no basis upon which I can conclude that QSNTS, or Dr Sackett, has, or will, behave in that manner. To the contrary, I consider I should confidently proceed on the assumption that the relevant lawyer at QSNTS and Dr Sackett are well aware of their professional obligations to the Bidjara People and they will proceed to discharge those obligations diligently and ethically.
34 The second thing that can be said about the terms of the proposed orders is that they are directed to information that is obtained "in breach" of legal professional privilege. Expressed in that way, the information concerned would only fall within the terms of such a restraining order once it was established that the "breach" concerned had occurred. Apart from the complete absence of any evidence to support any past or threatened breach, given the contentious circumstances in which this issue arises, the only conclusive and certain means of establishing that pre-condition in relation to any future breach would be to obtain a court order to that effect. In other words, until such time as the "breach" had been established by such an order, the information enjoined by the proposed orders would not be known with any certainty.
35 Taking into account these matters, the proposed orders constitute the kind of ambiguous, imprecise and uncertain orders that Callinan J warned against in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58 as follows (at [176]):
Orders of courts, whether made in equity or in common law, to be enforceable need to be framed with clarity. Parties placed under curial obligations to do, or abstain from doing acts need to know with certainty what their obligations are. … Furthermore, a defendant will ordinarily not be in contempt for failure to comply with an ambiguous and imprecise undertaking, and by analogy, order.
(Footnotes and case references omitted)
36 One of the footnotes to these observations is also worth mentioning. It is (at fn 86):
For instance, equity will not provide injunctive relief in cases where it would be impossible to comply with the order sought, or where compliance, if possible, would be futile … Further, if the granting of injunctive relief would result in uncertainty as to what conduct would be prohibited, ordinarily no relief will flow.
(Case references omitted)
37 For these reasons, I do not consider it is necessary or appropriate to make the proposed orders insofar as they apply to any of the confidential information concerned that is accepted to be covered by legal professional privilege.
38 Finally, for completeness, I should address the separate principle which may protect confidential information imparted by members of the Bidjara People to Dr Sackett (see at [27] above). Mr Stephens did not mention this principle in his submissions, but I will briefly deal with it, accepting that it has not been developed in the submissions made by the parties. I do not consider the Bidjara People can rely upon this principle in this application. That is so because there is no evidence before me that any such confidential information has ever been imparted by any member of the Bidjara People to Dr Sackett on the basis that it was given to him in confidence. Mr Hauff's two affidavits are solely directed to the information obtained for the purposes of the Sackett Report: see at [7] above. I have already dealt with this confidential information in considering the legal professional privilege issue above. And, even if I were prepared to treat the statements made by Mr Stephens in his submissions as evidence (see at [20]-[21]), all of those statements are also directed to the same issue and they therefore fall into the same category as Mr Hauff's evidence above. In the absence of any such evidence, this principle does not arise in this application.