Glencore Coal Pty Limited v Franks [2021] FCAFC 61

Glencore Coal Pty Limited v Franks [2021] FCAFC 61

The primary judge made no appellable error in refusing to release Glencore from the implied Harman undertaking. It was permissible and important to take into account that the Sackett report arose from a native title mediation process and contained sensitive personal and cultural material, because there is a strong public interest in ensuring Aboriginal peoples are not deterred from using court processes to resolve native title claims. The asserted unfairness, prejudice and effect on the report's author disclosed no operative House v The King error. The primary judge also correctly treated the report as having doubtful relevance to the s 10 Heritage Act process, which differs materially...

Jurisdiction
Australia
Judgment Date
27 April 2021
Procedural Posture
Appeal Concerning Application for Release From Implied Harman Undertaking / Appeal From Dismissal of Glencore's Application for Leave to Use the Sackett Report in a S 10 Heritage Act Process
Outcome
Appeal dismissed.
Legal Topics
['implied Harman Undertaking' 'release From Undertaking' 'court Appointed Expert Report' 'mediation in Native Title Proceedings' 'section 10 Application Under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (cth)' 'discretionary Appellate Review']
['practice and Procedure' 'native Title' 'aboriginal and Torres Strait Islander Heritage Protection'] ['implied Harman Undertaking' 'release From Undertaking' 'court Appointed Expert Report' 'mediation in Native Title Proceedings' 'section 10 Application Under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (cth)' 'discretionary Appellate Review']

Case Brief

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Procedural Posture

Appeal Concerning Application for Release From Implied Harman Undertaking / Appeal From Dismissal of Glencore's Application for Leave to Use the Sackett Report in a S 10 Heritage Act Process

Legal Issues

  1. 1 ['Whether the primary judge erred in taking into account that the Sackett report was borne out of mediation in the native title proceeding.' 'Whether the primary judge erred by taking into account potential unfairness or prejudice to the respondents or other First Nations peoples.' 'Whether the primary judge erred by taking into account the potential impact of release of the Sackett report on Dr Sackett.' 'Whether the primary judge erred in finding that the Sackett report had little, if any, relevance to the s 10 process under the Heritage Act.']

Ratio Decidendi

The primary judge made no appellable error in refusing to release Glencore from the implied Harman undertaking. It was permissible and important to take into account that the Sackett report arose from a native title mediation process and contained sensitive personal and cultural material, because there is a strong public interest in ensuring Aboriginal peoples are not deterred from using court processes to resolve native title claims. The asserted unfairness, prejudice and effect on the report's author disclosed no operative House v The King error. The primary judge also correctly treated the report as having doubtful relevance to the s 10 Heritage Act process, which differs materially...

Court Disposition

Appeal dismissed.

Orders

  • ["The appellant is to pay the respondents' costs of the appeal to be taxed failing agreement."]