Glencore Coal Pty Limited v Franks [2020] FCA 1801

Glencore Coal Pty Limited v Franks [2020] FCA 1801

Glencore failed to establish special circumstances or that release from the Harman undertaking was in the interests of justice. Although the Sackett report was an independent expert report and there were some common features between the Native Title Proceeding and the s 10 application, the report was sensitive and controversial, arose from a mediation-related process, had not been tested in court, its release risked prejudice to the respondents, third parties and possibly embarrassment or prejudice to Dr Sackett, and Glencore's delayed application created potential unfairness. Most importantly, the report dealt with issues different from those for the s 10 application and was unlikely to...

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Practice and Procedure Application for Release From Harman Undertaking Regarding Expert Report Produced in Native Title Proceedings / Final Determination of Originating Application
Outcome
Application dismissed with costs.
Legal Topics
['harman Undertaking' 'release From Implied Undertaking' 'expert Report' 'section 10 Application Under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (cth)' 'special Circumstances' 'interests of Justice']
['practice and Procedure' 'native Title' 'aboriginal and Torres Strait Islander Heritage Protection'] ['harman Undertaking' 'release From Implied Undertaking' 'expert Report' 'section 10 Application Under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (cth)' 'special Circumstances' 'interests of Justice']

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Procedural Posture

Practice and Procedure Application for Release From Harman Undertaking Regarding Expert Report Produced in Native Title Proceedings / Final Determination of Originating Application

Legal Issues

  1. 1 ["Whether Glencore should be released from the Harman undertaking to use the Sackett report for making representations concerning the respondents' application under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)." 'Whether special circumstances existed warranting relief from the undertaking.' "Whether granting leave was in the interests of justice, having regard to commonality between the native title proceeding and the s 10 process, relevance of the report, sensitivity, delay, prejudice and the author's attitude." 'Whether the Sackett report would contribute to achieving justice in the s 10 process.']

Ratio Decidendi

Glencore failed to establish special circumstances or that release from the Harman undertaking was in the interests of justice. Although the Sackett report was an independent expert report and there were some common features between the Native Title Proceeding and the s 10 application, the report was sensitive and controversial, arose from a mediation-related process, had not been tested in court, its release risked prejudice to the respondents, third parties and possibly embarrassment or prejudice to Dr Sackett, and Glencore's delayed application created potential unfairness. Most importantly, the report dealt with issues different from those for the s 10 application and was unlikely to...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondents' costs."]