Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395

Booth on behalf the Gunaikurnai People Claim Group v State of Victoria [2022] FCA 1395

The suppression orders were varied and the parties were released from the implied Harman undertaking because the Boonwurrung application substantially overlapped with the discontinued Gunaikurnai application on the contested issue of traditional rights and interests in and around Wilsons Promontory. Without variation, some parties, legal representatives and experts would know potentially relevant material while others would not, creating procedural unfairness and an uneven playing field. Use of the materials for the Boonwurrung application would also promote the s 37M overarching purpose by avoiding slower, more expensive and inefficient duplication of expert processes. Special...

Jurisdiction
Australia
Judgment Date
23 November 2022
Procedural Posture
Native Title; Practice and Procedure / Interlocutory Application to Vary Suppression and Non Publication Orders and for Release From the Implied Harman Undertaking, Determined on the Papers
Outcome
Applications allowed; suppression and non-publication orders varied and parties released from the implied Harman undertaking for the purposes of proceeding VID 363 of 2020.
Legal Topics
['suppression and Non Publication Orders' 'variation of Suppression Orders' 'harman Undertaking' 'procedural Fairness' "court Ordered Experts' Conferences" "joint Experts' Reports" 'confidentiality in Native Title Proceedings']
['practice and Procedure' 'native Title'] ['suppression and Non Publication Orders' 'variation of Suppression Orders' 'harman Undertaking' 'procedural Fairness' "court Ordered Experts' Conferences" "joint Experts' Reports" 'confidentiality in Native Title Proceedings']

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Procedural Posture

Native Title; Practice and Procedure / Interlocutory Application to Vary Suppression and Non Publication Orders and for Release From the Implied Harman Undertaking, Determined on the Papers

Legal Issues

  1. 1 ["Whether suppression and non-publication orders made in the discontinued Gunaikurnai native title proceeding should be varied to permit use of materials and information from Court-ordered experts' conferences and joint reports in the Boonwurrung native title proceeding." "Whether parties should be released from the implied Harman undertaking in respect of materials and information produced or disclosed in the Experts' Conferences and contained in the Joint Reports." 'Whether procedural fairness and the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) required access by parties, legal representatives and experts in the later proceeding.' "Whether disclosure should be limited by relevance, by party, or to findings only of particular experts' conferences."]

Ratio Decidendi

The suppression orders were varied and the parties were released from the implied Harman undertaking because the Boonwurrung application substantially overlapped with the discontinued Gunaikurnai application on the contested issue of traditional rights and interests in and around Wilsons Promontory. Without variation, some parties, legal representatives and experts would know potentially relevant material while others would not, creating procedural unfairness and an uneven playing field. Use of the materials for the Boonwurrung application would also promote the s 37M overarching purpose by avoiding slower, more expensive and inefficient duplication of expert processes. Special...

Court Disposition

Applications allowed; suppression and non-publication orders varied and parties released from the implied Harman undertaking for the purposes of proceeding VID 363 of 2020.

Orders

  • ["The parties in VID 737 of 2014, their legal representatives and expert witnesses are released from their implied Harman undertaking in respect of materials and information produced or disclosed in the Experts' Conferences and contained in the Joint Reports, and may use them for the purposes of Briggs on behalf of...