Mumbin v Northern Territory of Australia (No 1)

• Jurisdiction: Australia Federal only
• Judge: GRIFFITHS J
• Judgment Date: 14 April 2020
• Neutral Citation: [2020] FCA 475
• Date: 14 April 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

File numbers:	NTD 57 of 2017 NTD 46 of 2018
Judge:	GRIFFITHS J
Date of judgment:	14 April 2020
Catchwords:	PRACTICE AND PROCEDURE – proceedings NTD 57 of 2017 (Jawoyn Claim) and NTD 46 of 2018 (Katherine Families Claim) being heard together as the “Katherine Proceeding” – interlocutory application filed on behalf of the applicant in the Katherine Families Claim seeking to restrain the applicant in the Jawoyn claim from engaging a certain counsel – grounds to restrain counsel established – failure to demonstrate waiver of any objection to counsel’s retainer – failure to satisfy Court that relief should be withheld on basis of delay or acquiescence ; NATIVE TITLE – consideration of identity of “client” for the purposes of any claim of legal professional privilege – Katherine Families Claim applicant found to be successor to applicants in earlier discontinued proceedings – Katherine Families Claim applicant to be viewed as the client for the purposes of any claim of legal professional privilege or access to confidential material in respect of the earlier discontinued proceedings
Legislation:	Evidence Act 1995 (Cth), ss 79, 135 Native Title Act 1993 (Cth), ss 56 and 57, 61, 62, 66B, s 85A, s 203BE, s 251A, s 251B Federal Court Rules 2011 (Cth), r 23.11
Cases cited:	Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 FarrowMortgage Services Pty Ltd (In liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 Grimwade v Meagher [1995] 1 VR 446 Guy v Crown Melbourne Ltd [2017] FCA 1104 Jing Li v Jin Lian Group Pty Ltd [2018] NSWSC 479 Lennon v State of South Australia [2010] FCA 743; 217 FCR 438 Macquarie Bank Ltd v Myer [1994] VR 350 McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 North Ganalanja Aboriginal Corporation v The State of Queensland QGC Pty Limited v Bygrave[2010] FCA 659; 186 FCR 376 Re Nash v Timbercorp Finance Ltd (In liq) [2019] FCA 957; 137 ACSR 189 Smirke and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) [2019] FCA 2115 Smirke on behalf of the Jurruru People v Western Australia [2017] FCA 825 Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551
Date of hearing:	23 March 2020
Date of last submissions:	25 March 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	91
Counsel for the First Applicant:	R. Graycar
Solicitor for the First Applicant:	S. Kenny of Camatta Lempens Pty Ltd Lawyers
Counsel for the Second Applicant:	S. Wright SC with C. Taggart
Solicitor for the Second Applicant:	D. Wells of Northern Land Council
Counsel for the First Respondent:	Z. Spencer
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second, Third and Fourth Respondents:	The second, third and fourth respondents were excused from attending the hearing and did not appear.

ORDERS

		NTD 57 of 2017
BETWEEN:	LISA MUMBIN (and others named in the Schedule) First Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA (and others named in the Schedule) First Respondent
		NTD 46 of 2018
BETWEEN:	JOSHUA HUNTER (and others named in the Schedule) Second Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA (and others named in the Schedule) First Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	14 April 2020

THE COURT ORDERS THAT:

1. The first applicant is restrained from engaging Ronald Michael David Levy to appear as counsel for the first applicant in the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.

2. The first applicant is restrained from seeking or obtaining legal services from Ronald Michael David Levy in connection with the native title determination application NTD57/2017, including as part of the “Katherine Proceeding” as constituted by order 1 of the Court’s orders dated 12 November 2019.

3. There be no order as to costs.

4. The parties are to seek to agree case management consent orders in respect of the hearing and determination of the interlocutory application filed on 2 December 2019 by the Jawoyn Claim applicant seeking summary dismissal of the application for native title determination by the Katherine Families Claim applicant.

5. Liberty to apply on the giving of 48 hours’ notice.

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

REASONS FOR JUDGMENT

Introduction and background	[1]
Some factual findings	[8]
Relevant legal principles summarised	[36]
(a) Risk of misuse of confidential information	[38]
(b) Court’s inherent jurisdiction	[39]
(c) Legal professional privilege in native title litigation	[41]
Consideration and determination	[42]
(a) Real risk of Mr Levy misusing confidential information	[43]
(i) What is the relevant information?	[44]
(ii) Is that information confidential?	[49]
(iii) Does the legal practitioner have possession of that information?	[56]
(iv) Is the legal practitioner proposing to act “against” the former client or a person as good as a client in the requisite sense?	[57]
(v) Is there a real risk that the confidential information will be relevant?	[58]
(vi) Is there no real risk of misuse of the confidential information?	[59]
(b) Inherent jurisdiction	[60]
(c) Legal professional privilege relating to the Original Katherine Claims	[68]
(d) The issue of waiver	[75]
(e) Delay and acquiescence

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