Alvoen on behalf of the Wakaman People #5 v State of Queensland (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 12 July 2021
• Neutral Citation: [2021] FCA 785
• Court: Federal Court
• Date: 12 July 2021

Federal Court of Australia

Alvoen on behalf of the Wakaman People #5 v State of Queensland (No 3) [2021] FCA 785

File numbers:	QUD 178 of 2018QUD 143 of 2015QUD 746 of 2015QUD 350 of 2017QUD 351 of 2017QUD 728 of 2017
Judgment of:	COLLIER J
Date of judgment:	12 July 2021
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for order that lawyers of various respondents answer interrogatories – enjoinder application made following evidence emerging during cross-examination to restrain lawyers acting – whether inherent jurisdiction of Court to protect the due administration of justice engaged – whether Court should dispense with compliance with r 21.02 Federal Court rules 2011 (Cth) – whether prospect of claim of legal professional privilege relevant – whether interrogatories available in respect of interlocutory application rather than substantive pleadings – detailed affidavit material filed in proceeding by applicant – where applicant for enjoinder application a stranger to retainer – whether fishing
Legislation:	Australian Solicitors Conduct Rules 2012 (Qld) r 37 Federal Court Rules 2011 (Cth) rr 1.34, 21.02 Legal Profession Act 2007 (Qld) s 7 Native Title Act 1993 (Cth)
Cases cited:	Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd[2012] FCA 290 Australian Securities & Investments Commission v Southcorp Limited[2003] FCA 804 Black v Taylor [1993] 3 NZLR 403 Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; [2014] FCA 1065 Dowling v Fairfax Media Publications Pty Ltd (No. 2)[2010] FCAFC 28 Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 Geelong School Supplies Pty Ltd v Dean (2006) 238 ALR 612; [2006] FCA 1404 Grimwade v Meagher[1995] 1 VR 446 Hancock v Rinehart (Privilege)[2016] NSWSC 12 Hanson-Young v Leyonhjelm (No 2)[2019] FCA 393 Martin v Norton Rose Fulbright Australia[2019] FCA 1101 Mitchell v Pattern Holdings Pty Ltd[2000] NSWSC 1015 Mumbin v Northern Territory of Australia (No 1)[2020] FCA 475 QGC Pty Limited v Bygrave (2010) 186 FCR 376; [2010] FCA 659 Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2)[2019] FCA 1551 Western Australia v Ward(1997) 76 FCR 492 Williamson v Nilant [2002] WASC 225
Division:	General Division
Registry:	Queensland
National Practice Area:	Native Title
Number of paragraphs:	138
Date of hearing:	15 March 2021
Counsel for the Applicant:	Mr G Del Villar QC
Solicitor for the Applicant:	North Queensland Land Council
Counsel for the First Respondent:	Ms E Longbottom QC with Ms S Marsh
Solicitor for the First Respondent:	Crown Law
Counsel for Preston Law, Mr Kerr, Mr Kempton and Ms Cao-Kelly:	Mr M Jonsson QC
Solicitor for Preston Law, Mr Kerr, Mr Kempton and Ms Cao-Kelly:	Preston Law

ORDERS

		QUD 178 of 2018 QUD 143 of 2015 QUD 746 of 2015 QUD 350 of 2017 QUD 351 of 2017 QUD 728 of 2017
BETWEEN:	JOHN ALVOEN & ORS ON BEHALF OF THE WAKAMAN PEOPLE #5 Applicant
AND:	STATE OF QUEENSLAND Respondent

order made by:	COLLIER J
DATE OF ORDER:	12 July 2021

THE COURT ORDERS THAT:

1. The Court dispense with compliance with rule 21.02 of the Federal Court Rules 2011 (Cth).

2. Within 21 days of these Orders, Andrew Macrae Kerr and David Kempton:

   1. provide written answers to the Applicant’s interrogatories set out in annexure “SW77” to the affidavit of Susan Gillian Mary Walsh affirmed 10 February 2021, subject to any objection referable to a claim of privilege in accordance to r 21.03(4)(c) of the Federal Court Rules 2011 (Cth), and file affidavits verifying those answers in accordance with rule 21.03(1) of the Federal Court Rules 2011 (Cth); and

   2. serve the documents referred to in order 2 (a) on the Applicant, Petrina
      Cao-Kelly and the State of Queensland.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1. Before the Court is an interlocutory application (interrogatories application) filed on 10 February 2021 in QUD 178 of 2018 John Alvoen & Ors on behalf of the Wakaman People #5 and State of Queensland. The interrogatories application was filed by the applicant in the substantive proceedings (Wakaman Applicant). It was addressed to the State of Queensland, law firm Preston Law, and lawyers David Kempton, Andrew Kerr and Petrina Cao-Kelly.
   In the interrogatories application the Wakaman Applicant sought the following orders:

1. The Court dispense with compliance with rule 21.02 of the Federal Court Rules 2011 (Cth).

2. David Kempton and Andrew Macrae Kerr:

(a) provide written answers to the Applicant’s interrogatories and file affidavits verifying those answers in accordance with rule 21.03 (1) of the Federal Court Rules 2011 (Cth); and

(b) serve the documents referred to in order 2 (a) on the Applicants, Petrina Cao-Kelly and the State of Queensland.

2. Notwithstanding that the interrogatories application was filed only in QUD 178 of 2018, I note orders of Reeves J on 14 March 2019, including :

1. Any document filed, which relates to Wakaman People #3 (QUD746/2015), Wakaman People #4 (QUD728/2017), Wakaman People #5 (QUD178/2018), GAG Crystalbrook Station Pty Ltd (QUD143/2015), Lance Frank, Bradley Thomas and Emma Elizabeth O’Shea (QUD 350/2017) and that part of James William Malcolm and Janelle Lynette O’Shea (QUD351/2017) which is overlapped by QUD728/2017 (the Wakaman proceedings):

(a) need only be filed in relation to QUD178/2018; and

(b) shall bear the Court heading set out in QUD178/2018, and be endorsed with the file numbers of the Wakaman proceedings, which are: QUD 143/2015, QUD 746/2015, QUD 350/2017, QUD 351/2017, QUD 728/2017 and QUD178/2018.

3. The interrogatories application relates to an earlier application filed by the Wakaman Applicant on 24 December 2020. That earlier application (enjoinder application) was addressed to pastoral respondents to the substantive proceedings, in addition to Preston Law, Mr Kempton, Mr Kerr and Ms Cao-Kelly. In substance, the enjoinder application seeks orders restraining Preston Law, or alternatively Mr Kempton and Mr Kerr, from acting...