Friday v Minister for Primary Industry and Resources

• Jurisdiction: Australia Federal only
• Judge: SC DERRINGTON J
• Judgment Date: 14 July 2020
• Neutral Citation: [2020] FCA 984
• Date: 14 July 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Friday v Minister for Primary Industry and Resources [2020] FCA 984

File number:	NTD 40 of 2019
Judge:	SC DERRINGTON J
Date of judgment:	14 July 2020
Catchwords:	PRACTICE AND PROCEDURE – application for production of documents – legal advice privilege – whether communications made for the dominant purpose of legal advice – where confidential bundle of sample documents provided to Court for examination
Legislation:	Federal Court Rules 2011 (Cth) Mineral Titles Act 2011 (NT) Evidence Act 1995 (Cth)
Cases cited:	Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 082 Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 2) [2013] FCA 1098, (2013) 306 ALR 384 Archer Capital 4A Pty Ltd v Sage Group Plc (No 2) (2013) 306 ALR 384 Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 AWB Ltd v Cole (2006) 152 FCR 382 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Balabel v Air India [1988] Ch 317 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 127 FCR 499 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 Dye v Commonwealth Securities Ltd (No 5) [2010] FCA 950 Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 Grant v Downs (1976) 135 CLR 674 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 Mann v Carnell (1999) 201 CLR 1 Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 96 Martin v Norton Rose Fulbright Australia (No 2) [2019] FCA 1101 Rich v Harrington [2007] FCA 1987, (2007) 245 ALR 106 Rinehart v Rinehart [2016] NSWCA 58 Seven Network Ltd v News Ltd [2005] FCA 142 Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 Waterford v The Commonwealth of Australia (1987) 163 CLR 54
Date of hearing:	Determined on the papers
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	53
Solicitor for the Applicants:	Northern Land Council
Solicitor for the Respondents:	Solicitor for the Northern Territory

ORDERS

		NTD 40 of 2019
BETWEEN:	GRAHAM FRIDAY First Applicant ; DAVID HARVEY Second Applicant ; THOMAS SIMON Third Applicant
AND:	MINISTER FOR PRIMARY INDUSTRY AND RESOURCES First Respondent ; NORTHERN TERRITORY OF AUSTRALIA Second Respondent

JUDGE:	SC DERRINGTON J
DATE OF ORDER:	14 July 2020

THE COURT ORDERS THAT:

1. Within 7 days of the date of these Orders, a copy of Document 121, with the second paragraph of that document unredacted, be produced to the applicants.

2. Unless agreement is reached between the parties, the parties are to file and serve submissions, not exceeding 3 pages in length, on the question of costs of the interlocutory application filed on 20 May 2020 (Interlocutory Application), by 21 July 2020 and are to indicate whether the question of costs can be dealt with on the papers.

3. The Interlocutory Application be otherwise dismissed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

1. By interlocutory application filed on 20 May 2020, the applicants sought orders requiring the respondents to produce for inspection in unredacted form a set of, in the case of the first and second respondents, 14 documents and, in the case of the third respondent, three documents.

2. Production of the documents had been resisted on the basis of common interest privilege or legal advice privilege.

3. The first and second respondents only press their claim for privilege now in respect of a narrower range of documents (First and Second Respondents’ Submissions [3]). All are said to be the subject of legal advice privilege.

4. In light of the position taken by the first and second respondents, the third respondent indicated that it no longer pressed its claim for privilege in respect of the three documents identified in the interlocutory application, given that it was the first and second respondents’ claim for privilege in respect of those three documents that underpinned the third respondent’s claim for common interest privilege. It indicated it did not propose to take part in the hearing in relation to the interlocutory application but reserved the right to be heard on any application for costs that might be made against it (DW2.12).

5. On 8 July 2020, it was ordered by consent that, by 4pm on 8 July 2020, the First and Second Respondents produce to the Court copies of the documents referred to in Schedule 1.4-1.7, 1.9 and 1.11 of the interlocutory application filed on 20 May 2020 in order for the Court to inspect the documents for the purposes of determining the application.

6. The first and second respondents have provided the Court with a confidential bundle of those documents (the Bundle).

7. It was further ordered by consent that Order 3 of the orders made on 17 June 2020 be vacated and, in lieu thereof, the interlocutory application filed on 20 May 2020 be determined on the papers.

8. In determining this application, the following affidavits were read:

1. Affidavit of Daniel Wells affirmed 19 May 2020 and exhibit DW1;

2. Affidavit of Jennifer Nicole Laurence affirmed 12 June 2020 and annexure JNL-1;

3. Affidavit of Daniel Wells affirmed 26 June 2020 and exhibit DW2.

9. In addition, I have had the benefit of the submissions filed by the parties: those of the applicant filed on 20 May 2020 (AS), in reply on 26 June 2020 (AS-R), and in reply to the first and second respondents’ supplementary submissions on 8 July 2020 (AS-RSS); and those of the first and second respondents filed on 12 June 2020 (RS), and supplementary submissions on 8 July 2020 (RSS).

background

10. The applicants are accepted, subject to one qualification, as being the common law holders of native title of a relevant area the subject of the proceedings (Amended Defence of the First and Second Respondents [1]). The applicants commenced the principal proceedings on 15 November 2019. There are two substantive issues in the action relevant to this application. The first is whether private (ex parte) dealings between the third respondent, Mount Isa Mines Limited (MIM), and delegates of the first respondent, the Minister for Primary Industry and Resources (Minister), denied the applicants a fair hearing in relation to MIM’s application for the grant of ML 29881. The second is whether a decision by a delegate of the Minister to extend time for MIM to give notice of the application to the applicants is effective.

11. The respondents assert that the ex parte communications did not deny the applicants a fair hearing on the application for the grant of ML 29881 as the requirements of procedural fairness did not extend to providing the native title holders with an...