Attorney General (NT) v Maurice

1 CATCHWORDS

Admmistrative law - Application for order of review and writ of

mandamus against Aboriginal Lands Commissioner.

Evidence - Legal professional privilege

- Claim book prepared for

purposes of Aboriginal Land Claim - material In other documents

taken into account in preparing Claim

Book - Privilege in Claim

Book waived by publication

- Whether privilege in other documents

also waived.

Evidence - Legal professlonal privilege

- Document prepared after

its author ceased to be employed in preparing Claim	-	Whether
privileged.

Evidence - Aboriqinal Land Rishts (Northern

Territory) Act, s.23E

- Information gleaned by employee of Land Council In preparing

Claim - Whether s.23E prevents	such information being given in
evidence to Commissioner.

Aborlqinal Land Rlqhrs (Norcnern Territory) Acc 1976, ss.Z3A,

23B. 23C, 23D. 23E, 54.

Adminlstrative Decisions (Judicial Review) Act 1977.

Judlciarv Act 1903, s.39B.

I I

THE ATTORNEY-GENERAL FOR THE

NORTHERM TERRITORY OF AUSTRALIA

THE HONOURABLE -MICHAEL

DAVID ANDREW MAURICE. ABORIGINAL LAND

COMMISSIONER & ORS. AND IN THE MATTER OF THE WUMUNGU LAND CLAIM

Bowen C.J., Woodward and Toohey

27 March 1986

JJ.

Sydney

. -

. . . , .. . .-

' , z	L ,
!

IN THE FEDERAL COURT OF AUSTRALIA

1 1

NEW SOUTH WALES DISTRICT REGISTRY

1	No. G324 of 1985

DIVISION

GENERAL

)

I '

BETWEEN :

THE ATTORNEY GENERAL FOR

THE

NORTHERN TERRITORY

OF AUSTRALIA

Applicant

and

THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE,

-	ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Tinrd Responcienl;

ROBERT BRUCE REYBURN

Fourth Respondent

and

- .- ._ - IN THE MATTER OF THE WARUMUNGU LAND CLAIM

_ _

' I

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW	SOUTH WALES DISTRICT REGISTRY	1	No. G344 of 1985
1

GENERAL DIVISION

)

IN THE MATTER of an Application for a Writ

of Mandamus against

THE HONOURABLE MICHAEL DAVID ANDREW.MAURICE, ABORIGINAL

LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

ROBERT BRUCE REYBURN

Third Respondent

AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

M PARTE, THE ATTORNEY GENERX FOR THE

IJGRTiERN TERRITORY OF AUSTRALIA

Prosecutor

MINUTE OF ORDER

- --.

JUDGES MAKING ORDER	: Bowen C.J., Woodward and Toohey JJ.
DATE	: 27 March 1986
PLACE	: Sydney

_ _

THE COURT ORDERS THAT:

1. The application for judicial review be dismissed.

The order nisi for a writ

of mandamus be discharged.

3 .

The parties have liberty to apply-on the question of

costs

within 21 days.

In the absence of any application there be no order

costs.

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY

)

No. G324 of 1985

)

GENERAL DIVISION

)

BEXWEXN

THE ATTORNEY GENERAL FOR

THE

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

, ..

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

I	Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

_ _

IN THE MATTER OF THE WARUMUNGU

LAND

CLAIM

i	I
I
I
I
I I I
l	l
I

l
4 . - -	I

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

1	No. G344 of 1985

)

DIVISION

GENERAL

)

IN THE MATTER of an Application for a Writ of Mandamus against

THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE, ABORIGINAL

LAND COMMISSIONER

First Respondent

THE CENT-

LAND COUNCIL

- _

Second Respondent

ROBERT BRUCE REYBURN

Third Respondent

AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

- M PARTE, THEAEORNEY D R A L

FOR THE

NORTHERN TERRITORY

OF AUSTRALE--

Prosecutor

CORAM: Bowen C.J., Woodward and Toohey

JJ.

-..

U:	27 March 1986

i !

REASONS €OR JUDGMENT

BOWEN C.

J :

I agree with the reasons for judgment of Toohey J

and

with the orders which

he proposes.

c e r t s f y t h a t

t h l s

and

the precedlng

page a r e a true copy of t h e Reasons

L '

f o r Judgment of hrs Honour the Chlef

Judge S i r Nlgel Bowen.

d&--

Associate

Dated: 27 r-2arch *l98 6 .

IN THE FEDERAL COURT

OF AUSTRALIA

NEW SOUTH EWLES DISTRICT REGISTRY	No. G324 of 1985
GENERAL DIVISION

BETWEEN

THE ATTORNEY GENEWlL

FOR THE

NORTHERN TERRITORY

OF AUSTRALIA

Applicant

and

THE HONOURABLE MICHAEL DAVID ANDREW MAURICE,

ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent

and

IN THE MATTEX OF THE WARUMUNGU LAM3 CLAIM

IN THE F'EDEXAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

1	- No. G344 of 1985

)

GENERAL DIVISION

)

IN THE MATTER of an Application for a Writ of Mandamus against

THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE. ABORIGINAL

LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

ROBERT BRUCE REYBURN

Thlrd Respondent

AND IN THE MATTER OF THE WARUMUNGU LAND CLAIM

EX PARTE, THE ATTORNEY GENERAL FOR THE

NORTHERN TERRITORY

OF AUSTRALIA

Prosecutor

COURT:

Bowen

CJ, Woodward & Toohey

JJ.

m: 27 March 1986

PLACE: Sydney-

REASONS FOR JUDGMENT

WOODWARD J.

The background

these

actions

has already

been

descrlbed in the judgments just delivered in actions brought by

the Aboriginal Sacred Sites Protectlon Authorlty	- Matters No
G 237 and G 336 of 1985.

On the subject

of legal professional privllege which,

before

Maurlce J, was claimed on behalf

the

Aboriginal

- -.

1 .

claimants by the Central Laid Council which was representing

hem,

his Honour found that such privilege dld extend to cover documents prlvileqe had been waived by use of the material itself, or other

brought into existence, or brought together, for purposes of the

documents

derived

from

it,

s&missions

tendered

to the

Commissioner or otherwise made public.

i _

The Attorney-General of the Northern Territory

("the

Attorney-General") now seeks to renew (again by the alternatlve methods of the ADJR Act and s.39B of the Judlciary Act, this tlme

seeking a

wrlt of mandamus) Maurice J's declsion that legal

professlonal	prlvllege	had	not	been	walved	in	a number of
lnstances

Counsel for the Attorney-General,=in their summary

submissions. posed the main question whlch they asked the Court to answer, In thelr applications for review and for mandamus. in the

following terms,

"An Important

matter

princlple

arlses,

respect of which there is no direct authority:

Where an expert witness prepares

a report, and

in the process takes account

of material in

other

documents,

legal

professlonal

privllege m the

report

waived

publicatlon,	is	any	such	privilege	in	the	I .
I..

related documents.

See, in partlcular Nea Karteria (above, at

p.1391, General Accident Fire and Life

(above, at pp.44-46 and

- note that a

quotation from Nea Karteria at point h on p.45 is

- 8 -

corrupted by omissions);

and Great Atlantlc (above

at pp.491-2).

These cases are

authorities for the propositions that use

document in cross-examination which is not assented

to by the

witness, in pre-trlal procedures, or In other ways falling short of introduction into evidence, wlll not lead to waiver of related documents.

Before leavmg this issue I should say that the Court's

attention was drawn to a criticism of the decision in General

Accident Fire and Life (above) contained in the First Supplement

to the Thirteenth EdiLion of

Phipson on Evidence. In the course

of the commentary it was sald that Hobhouse

'I... was

much

influenced

by considerations of

feirness; but that commodity is not a

desideratun

only in the course of actlons which proceed to

trial. Settlements take place on the basls of the discovery between the parties, and it can hardly

right

that

a party

can

selectively

walve

privilege at the Lime of serving his list of documents, on the basls that the loss of privilege

1 s confined to the documents disclosed unless there

IS a trial and the documents are put

in evidence."

I can only say that I do not feel the dlfficulty which the learned authors feel. In my

view the distinctlon based on use

In evldence 1 s valid and consistent wlth princlple. Since

thar;

polnt of

return was not reached in the present case, the

Attorney-General's arguments on thls Issue fail.

There were two other subsidiary issues raised by counsel

for the Attorney-General. The first was that certain documents

which Maurice J held to be privileged had been prepared by thelr

author (Mr Keyburn) after

ceased to be employed to assist the

claimants' lawyers to prepare and present

the Land Claim. His

- 9 -

Honour held that these documents were prlvileged because, although

put together later with

a view to re-employment on the claimants'

behalf or to

the

making

a personal

submission

the

Commissloner, they were based to

a large extent on information

imparted

confidence

Aboriginals

while

Reyburn

was

employed to asslst in preparing the claim.

- -

His Honour arrlved at thls concluslon by the following

logical process, If

I may paraphrase his reasons,

(a)	legal professional privilege attaches to communlcations

for purposes of lltigation or advice passing from

a client to hls

solicltor through an lntermediary who is the agent of one or other

of them (in this case an anthropologist);

(b)

the privllege

1 s that of the client and neither the

solicitor nor the Intermediary can properly waive the privilege,

or be compelled to answer questions about the communications, or

produce documents dealing -with them, without the consent of the

client;

of the sollcitor and the agent

are

not

affected

the

termination

the

solicitor-client

relatlonship or the agency;

(d) slnce

the

agent

could

not

compelled

to answer

questions about things

he leawnt while carrying out his agency

role, he cannot be compelled to produce notes which he later made,

for his own purposes, about those matters.

The contrary argument put for the Attorney-General was

that, "It

simply cannot be that, if one prepares documents

one's own

volitlon wlthout

mstructlons or a retainer, they can

I I

L' '

- 10 -

be sald to be protected by legal professional privllege". It is

true that, as

the High

Court pointed out

m National Emplovers

Mutual General Insurance Association Ltd v

Waind (1979) 141

CLR

648 at 654, it is the purpose

for which a document recording

information is brought into existence, not the purpose

for which

the information is obtalned, wlth which the law of professlonal

legal privilege is concerned. However, in my

new, this princlple

- -

cannot be used to force production of

a document which a solicitor

has gratuitously brought into exlstence (say in

a note to

uninvolved partner) and which contalns information prevlously

communicated by

client to whlch privilege attaches, which

prlvllege the client has not waived.

It would be a different

matter if the cllent had himself repeated

the

lnformatlon in

letter to a

friend, but

I cannot see

how the solicitor can be

compelled to perfect an

indiscretion in breach of

his clear duty

hls

client.

It would, of course,

otherwise

the

indiscreet communication actually

fell into the hands of the

opposlte party (see Calcraft

v Guest, above).

In my view the

positlon of Mr Reyburn, as a former agent

of the solicitor or

the claimants, is no different from that of a

solicitor or former solicltor of the claimants. This part

of the

Attorney-General's ayplication should

a.lso fail.

The final issue raised by the Attorney-General on which

thls Court was asked to rule (another was disposed

of by an

undertaking to produce the disputed document) concerned

a posslble

duality

purpose

the

bringing

into

existence

five

documents In the possesslon of

Ur Nash. a linguist used to asslst

11 -

in preparation of the Land Claim.	It was argued that there was	no	i
I -
t :.

evidence on which Maurlce J-could properly have found that these

documents attracted legal professional prlvilege in accordance

with the "sole purpose" test adopted

in Grant v Downs

( 1 9 7 6 )

135

CLR 674. The documents

were

records

of meetings

between

Aboriqmal

claimants and offlcers

the Central Land Council,

which was representing them

and, through its solicltors, preparing

- -

their claim. Another meeting recorded was of the Land Council

itself.

Obviously there would have been some matters raised at

these meetings which were not relevant to any issue arising in the

Land Claim hearing; other matters may or may not become relevant,

depending how

the hearing develops; others would be clearly

relevant. His

Honour

held

that

these

circumstances

the

material contained in these records would be either Irrelevant or

privileged. Having studied the evidence before his Honour,

I have

no doubt that

he was entitled to make

such a findlng. The

I I

discussion of other

irrelevant

matters

the

course

communication whlch contains prlvileged material does not destroy

the prlvllege. It is only if there is duality of purpose In

conveying the otherwise prlvileged information that prlvllege may

be lost. In the present case hls Honour was entitled to find that

the records of

meetings would not have come into existence had

they not been wanted for the preparation of the Land Claim by the

claimants' legal advlsers (see Grant

v Downs above).

I	A	final	matter	raised,	d v loped	not	but	oral	In
i
i

argument, by counsel for Mr Reyburn,

and neither pursued by any

- 12 -

other proponent of privilege in these proceedings nor responded to

by any opposing party, relates to the effect

of s.23E of the Land

Riqhts Act. It applies in terms to members and employees

of Land

Councils, includmg former

members

and

employees.

This

would

include Mr Reyburn. It makes it

an offence for such

a person,

except in the performance of his duties, to "make

a record of, or

divulge or communicate to any person, any mformatlon

concernlnq

the affairs

any person acquired by hlm by reason

his

- --

membership of, or employment

by, a Land Council".

Although the wording is sufficlently wide to make

arguable that it would prevent

a member or employee

of a Land

Councll

giving

any

evidence

the

Aborlginal

Land

Riqhts

Commissloner concernlnq any lnformation gleaned in the course of

hls research to assist

a Land Claim, Maurlce

J did not accept that

that was the intention

the legislature or the effect

the

sectlon. His Honour analysed the history of the provislon and the

related sectlons introduced at the same time and concluded that

s.23E must be read down in the light of those provisions,

so that

It applies only to information gleaned

the

extraordinary

clrcumstances contemplated

by s.23C of the Act.

Since the issue was not raised by application or debated

before the Court, I need only say that I am not persuaded of any

error In Maurlce

J's declsion on thls point.

In the event, the applicatlon for review should be

dlsmissed and the order nisi for

a wrlt of mandamus discharged.

The Court was requested to reserve questions of costs

for further

- 13 -

-	I .-.
, I

argument.- As at present advlsed,

I would make no order

I .

costs; but, in view of the request

I have referred to, I

would

t ,I

reserve llberty to any party to apply to the Court on the subject

of costs within 21 days.

If any such application should be made,

I t would probably be convenient that it be dealt	wi h on the basis	t :	.
L
of written subrnlsslons.
I hereby certify that this and the

twelve

( 1 2 ) preceding pages are a

true and accurate copy

of the

Reasons f o r Judgment hereln of

The Hon Mr Justice Woodward

Assoclate

Dated: 27 March 1986

IN THE FEDEFAL

COURT

OF AUSTRALIA

NEW SOUTH WALES

No. G324 of 1385

DISTRICT REGISTRY	I
GENERAL DIVISION
B E T W E E N :
THE dTTORNEY-GENERAL FOR
THE NORTHERN TERRITORX
OF AUSTRALIA

Applicant

1 -

and	l.>
THE HONOURABLE MICHAEL DAVID	I .I
ANDREW MAURICE, ABORIGINAL LAND	!
:
COMMISSIONER AND OTHERS	1~ :'

Respondents

and

IN THE MATTER of the WARUMUNGU LAND CLAIM

IN THE FEDERAL

COURT

)

AUSTRALIA-

)

NEW SOUTH EIALES	)	No. G344 of 1985
DISTRICT FEGISTRY

GENERAL

DIVISION

)

B E T W E E N :

IN THE MATTER of an Application f o r a Writ of Mandamus auainst

THE HONOURABLE MICWLEL DAVID

ANDREM

KAURICE, ABORIGINAL LAND COMMISSIONER

First Respondent

and

THE CENTRAL LAND COUNCIL

Second Respondent	I
!

and

ROBERT BRUCE

R!ZYBURN

Third Respondent

AND IN THE MATI'ER of the

WARUMUNGU LAND CLAIM

EX PARTE THE ATTORNEY GENERAL FOR	THE
NBTHEXN TERRITORY OF AUSTRALIA

Prosecutor

2 .

CORAM :

Bowen C.J., Woodward and Toohey JJ.

March 1986

REASONS FOR JUDGMENT

TOOHEY J.

These applicatlons

the 'Attorney-General for the

Northern Territory of Australia stem

from the hearinq

by the

Aboriqinal Land Commissioner, Maurlce

J..

of the Warumunqu Land

Claim. That claim by Aboriqlnals claiming to be the traditional

Aboriqinal owners of land around Tennant Creek was made under the

provisions of the

Aboriqinal Land Riqhts (Northern Territorv) Act

1976 ( "the Land Rights Act").

The relevant history

of the land claim and

the

ccicumstances givinu rise to these applications are largely to be

found in my reasons

for judgment just delivered in connection

with

applications

this

Court

the

Aboriuinal

Sacred

Sites

Protection Authority. Those reasons provlde a backqround to what now follows.

Section 54 of

the

Land

Riqhts

Act

empowers

the

Commissioner to issue notices to persons whom

he believes to have

inforpation material to

a land

dai-m-to appear before him to give

evidence or to

produce

documents

or both.

The present

applications arise

from notkes--given to several anthropologists

and linguists, includlng one

the respondents Robert Bruce

Repburn. who described himself

as a cross-cultural consultant.

The recipients of

the notices had carried out field

work and

prepared information

for the purposes of

the presentation of the

3 .

land claim hp thp Central Land. Council. In response to drrectlons

from

the Commlssloner, Mr.

Reyburn swore qn affidavlt in the

nature of an affidavlt of documents, settlna out the documents in

hls

possession

relevant

the land

claim.

The

Commissioner

decided that many of these documents were protected bp legal

professional prlvilege, which privllege had not been waived. The

Attorney-General, at

whose Instance the

5.54 notice was issued.

does not attack the flndina

legal professional prlvilege.

except in a few

Instances, but contends that in the circumstances

of the case privilege was waived.

The decision of

the Commissioner has been challenged by

the Attorney-General in two applications

one made under the

Administrative Decisions (Judzcial Review) Act 1977 and the other under s.39B of the Judlciary Act 1903.

The privilege is not that

of Mr. Reyburn. It

is the

privilege of

the Aboriginal claimants who are represented at the

hearing of the land claim and who were represented

at the hearing

of these applications by the Central Land Council. In accordance

with para.23(l)(f) of the Land Rights

Act, one of the functions

. .

Land Councils is "to asslst Aboriqinals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranqing

for leual assistance for them

at the expense of the Land Council".

The hearinu

of the claim beaan at Tennant Creek before

another Aboriginal Land Commissioner. Kearney

Questlons of

Iurisdiction of the Commissioner

to hear the claim to certain

.	.
I I

3 .

areas. of land	were	raised	bp	the	Attqrney-General.	The	I:
i

Commissioner ruled on the matter	of	jurlsdictlon and that rulinu	l ' 7 ;
F ,

was the subject of	an	application to the	Hlah Court. It	is	! :;
l

unnecessary to refer to the details of the rulinq or of the

. L

reasons for iudament of

the High Court. It is enouuh to say that

the effect of that judament was to requlre the Commlssioner

-to----

deal with all areas the subject

of the claim.

LKearnev:

parte Japanancrka (1983-84) 52 A.L.R. 31.

The hearina of the claim

resumed on 3

March 1985, but

before Maurice S .

This hearinu was treated as a hearing de novo.

For the purposes of the earlier hearing

claim book had been

produced of

which Mr. Reyburn was

a co-author. The copy before

the Court bears the title

"1582

Claim Book" and that is

covenient way to refer tc it. The Central Land Council sought to tender the claim book but objection was taken by counsel for the

Attorney-General and Kearney

S . did not at that time

or thereafter

rule

the

ob2ection.

The document

was

simply

marked

for

identification. However the claim book

had been distributed to

those participating in the land claim and coples had been lodged

with Kearney S . ' s

associate. In

opening the claimants' case their

counsel referred to sections of it. But the admissibility of the

claim book was not further araued.

When

the

hearing

the

land

claim

began

before

Maurice J., the Land Councll did not rely upon the

1982 claim book

but rather upon

a document which was described as

a "guide".

However, in the course of

cross-examination of Mr. Reyburn by

counsel for the Attorney-General, parts of the

1982

claim book

I I

were Put to him and the book was then tendered ln evidence for the

purpose of testing the questlon

of legal professional privilege.

The point taken by

the Attorney-General was that,

publishlng the claim book

at the earlier hearlng, the Land Council

and those whom it represented had waived any privilege -dtherwise'-

attaching to materlal referred to or taken into account in the

preparation of the claim book. This material included

a number of

j	'documents prepared	for the purposes of the land claim by persons,
I

including but not limited to Mr. Reyburn, and made available to

him for

the

purposes

his

research and his role in the

I I

compilation of the claim book.

The justification for waiver was

put this way by counsel for the Attorney-General in the course

his submissions to the Court:

"What

was

established

there

was

imply

that

assertions made

in that book Ethe

1982 claim book3 were

the product af. in quite large

measure, Mr. Rayburn's

(sic) research.

The research, as his Honour found

- at

least some of the information obtained during

his

researches is contained in the documents which

we seek;

!	therefore, we submit	... having waived the privilege in
I

the claim book at the same time the applicants waived

the privilege in those documents which formed part

the

source

material

for

the information which was

publicly disclosed in

the claim book".

Maurlce J. approached the status of the

1982 claim book

in this way. He said:

"As to the 1982 claim book, there can

be no doubt on the

authorities

discussed

above

that

applicants'

privilege in respect

of it has been waived. They did

not argue

to the contrary".

G .

The reierence to "the authorities discussed above" was in the context of walver flowlnu from the dlsclosure of the 1982	r
L '.
p .?
clalm book In connectlon with the earlier hearina. But Maurice J.
was of the view that the disclosure of the claim book in a

"pre-trlal situation" did not result in	a disclos.gre	-	of .-	its source	i ,
_,

material. He expressed the matter as fdllows:

"To use Mustill J.'s colourful phrase, Ca reference to

Nea Karteria Maritime

Co. Ltd. v. Atlantic and Great

Lakes Steamship Corp. C19813

Com. L.R. 1381 the 1982

clam book has not been deployed in the evidence before

me.

The tender was not accepted by Kearney

J. in 1982

and, in any event, mine is

a fresh and Independent

inquiry.

Accepting,

as I do, that

here

distinction

to be made between pre-trial disclosures

, _;

and those whlch occur in the course of evidence,	I am	. ,.
..

of the opinion that considerations of fairness in the conduct of my inqulry do not require that the privilege

adherin? to the source materials upon

which the authors

of tine 1982 claim book drew be treated as having been waived. At this staqe of the inqulry. that book simply

does

not

have

any

relevant

exlstence

within

the

procedures I have adopted and

am following".

Thus

the Commlssioner

drew a

distinction between the

claim book and its sources in

a pre-trial situation. waiver of the

former not

ipso facto

bringing about waiver

of the latter. He

then turned his attention

to references to source material

for the

1982 claim book arising, not

from the claim book itself, but from

evidence before him. His Honcur said:

l	. .
I	%.
I	! '

;__-

"To my mind, to the extent that opinions and conclusions

proffered

vi ence

before

me as part

the

applicants' case have been founded upon

a consideration

privileued

source

materials, the

applicants'

prlvilege in those source materials must

_be

taken to

have been waived. Although

Mr. Reyburn was not called

as a wltness In the

claimants'

case, the

same

consequence

must,

I think,

attach

prlvileued

materials upon which

he has relied in preparing his

proof.

Its

tender

was

not

objected

the

applicants' counsel. They cannot be permitted to lie

7 .

back and obtaln the beneflt

of a course of acclon which

they could not themselves take without penalty, and

whlch It was solely within thelr power to

stop".

At he

present

staqe

the

land

claim

inquiry,

Mr. Reyburn has not been called

a witness by the claimants.

I .

Furthermore they

do not Intend to call

- --.-

him.

- .-

What he has done

provide the Commissioner and those paftlcipating

the inquiry

with

a proof of evidence. As

understand the position, Mr.

Reyburn does not propose to give evidence

at the behest

of any

.	i
I . .

participant; he wishes

place

before

the

Commissioner

: '

Information which

he believes to be relevant

to matters arising in

the inquiry. The Commissioner must be taken to have ruled at this

stage that, by reason of the submission of

a proof of evidence by

Mr. Repburn and the failure by the claimants to take objection to

references in that proof	to documents which would otherwise	b the	!
I I

subject of legal professional privllege, privllege has been waived

by the claimants so far as those documents are concerned. Neither

the claimants nor the Central Land Council on	their behalf have
challenged that ruling.

Following the issue of the

5.54 notice to Mr. Reyburn

and the swearing of

an affidavit of documents by

him, counsel for

the Attorney-General was given leave to cross-examine him

on the

1982 claim book for the purpose of ascertaining the source of

C '

material therein with a view to showing that documents for which

legal professional privilege had been claimed were referred to

expressly or by implication in the claim book.

L .

..-

already

mentloned,

the

only

challenge

the

Commissloner's

rulings

the

questlon

walver

legal

:..;

, .

!. .

8 .

professlonal privlleae is that made bp the Atcorney-General In regard to documents In the possession of Mr. Reybuzn which are

said In some way to be source material for the

1982 clam book.

To the extent that the documents in

Mr. Reyburn's possession and

otherwise the sublect

of leqal professlonal privileqe are referred

- - _ _

to In his proof of evidence-. there

idXiTXnchallenqed decision by

the Commissloner that privllege has been waived. It may well be

;;

that some of those documents are also source material for the

1982

claim book but it was not suggested by the Central Land Council

by Mr. Reyburn that waiver had not thereby taken place. In other words, the live issue before the Court is whether there has been

waiver of	privllege attaching to documents In the possession of	- 1
..

Mr. Reyburn by reason of their incorporation in the claim

book,

those documents not being referred to in	Mr.	Reyburn's proof of
evidence.

The question for decision by the Court was formulated by

the Attorney-General

In this way:

"Where an

expert witness prepares a

report, and in the

process takes account of material in other documents,

if legal professional privilege in the report

is waived

by publication, is any such privilege in the other

documents also thereby waived".

The question is in such general terms that

i s answer is

of little use unless perhaps It be in the negative. An answer in the afklrmatlve is not likely to assist the hearing of the land

claim unless in some more precise way it

1 s

related to the

material before the Commissioner. Furthermore, the question as

formulated obscures

an earller question

that arises viz. the

\ '

: ,'

imp1 icatlons, if any.

flowinu

from

the

publication

and

distrlbution

the

1982 clalm book in the

hearlnq

before

’_

Kearney J.

The need to determine exactly what It is the Court is

beinu asked to do

1 s

relnforced by a statement of the declaratory

rellef souaht by the Attorney-General

whlch was formulated by

hls

- -_- -

counsel in the cour5e of the	hraxnq.	The declaration asked for
is in these terms:

“Publication and use of the

1982 claim book amounted to

a waiver of legal professional privilege

both the

clalm

book

and

information

contained

documents

relied upon or taken into account bp the authors	f the
claim book in its preparation”.

Although the question formulated

for

decision by the

Court and the declaratory relief sought are expressed in the most	.
.general terms. the documents in respect of which it is said that

legal

professional

privilege

was

waived

are

capable

Identification. Counsel for the Attorney-General produced for the

I	Court an analysis relating to some 200	documents.	The existence
I

! of	these	documents	is	known	because	they	were	identified	in
I

affidavits sworn by the recipients of the notices under

s.54 of

the Land Rights Act. Notices were issued, not only to Bruce

Reyburn, but also to David George Nash, Jane Helen Simpson, Paul

Christopher Memmott and Patricla Jane Lloyd, all anthropologists

who

had

carried

out

work

for

the

Central

Land

Council

connection with the Warumunqu Land Claim.

The Commlssioner held that some of

the material In the

possession of the anthropologlsts was not the subject

any

J	l	privilege, that some	was	the	subject	of	legal	professional
!	I

10.

privileue and that some was the subject of leual professlonal prlvileue whlch privilege had been waived. It is largely in regard to that material held by the Commlssioner to be the subject

of	legal professional privileue which had not been walved that

this matter comes before the Court. There is

a small quantity of

-- _-

material in the possession of Mr. Reyburn which 1s

said to have

come into existence after he ceased working for the Central Land

Council, In respect of which the Attorney-General claims that

privlleqe does not exist.

There

is also a small quantity

material in the

possession of Dr. Nash which the Attorney-General

says is not the subject

any privilege. I shall refer to those

matters later in these reasons. But the main thrust of the

argument before the Court concerned the question of waiver.

...

._.

It must be kept in mind that the Commissioner's ruling was given at a relatively early stage of the resumed inquiry. It may well be that by reason of evidence given by those who received

the 5.54 notices or by reason of other evidence led in the course

of the inquiry the privilege presently attaching to

a document may

be waived. It may be said that there is no need or justification

for the Court to have regard to what may or may not happen at a

later stage of the inquiry. There is force in that comment but it

is highly undesirable that the hearing

of the inquiry should be

impeded by a series of chalienges CO

rulings by the Coinmissioner

on what are in essence interlocutory matters which on their face

'	r ,
I	,

are

relevant o

but

will

not

determine

the

findings

the

Commissioner is called upon to make and the recommendations

(if

any) he thinks appropriate.

I .

11.

The f i r s t questlon f o r decision must be the implications

arlsinq from the publlcation and distributlon of the	1982 claim
book In connection with the hearing before Kearnep S.	Maurlce J

treated it as common ground that pre-trial disclosure

of the book

meant that any prlvilege attachlnq to the book itself

had been

! >

- -_-

- .

wciived. At the

same time he reqarded the book as havlng at this

stage of the Inquiry no "relevant existence within the procedures

whlch I have adopted and am following".

I take it to be

r I

! ,

consequence of	waiver of privileqe in the case of the 1982 claim	L .
I.

book that the book itself may be used

for

the purposes

cross-examination

of claimants and witnesses called on their

behalf and more generally

to point up alleged inconsistencies

between the case presented in the claim book and the case	now
presented.

_ .

Counsel for the Attorney-General did not argue

that

. -

'. ,

there had been

an express waiver of

privilege attaching to'source

material, rather that there had been

a waiver by implication. In

answer

tohe

question

"What

constitutes

a waiver

implication?". Wiqmore (Wiqmore	on Evidence -3rd ed. vol. VI11
para.2327) replied:

"Judicial

decision

gives

clear

answer

this

questior,..

In decirling it,

regard must be had to the

double eiements that are predicated in every walver,

i.e. not only the element of implied Intention, but

also

the

element

fairness

and

consistency.

privileged person would seldom be found to waive, if his intentlon not to abandon could alone control the

situation.

There

always

also

the

objective

consideration that when his conduct touches a certain

point

disclosure,

fairness

requires

that

his

immunity shall cease, whether he

intended that result

or not.

He cannot be allowed,

after disclosing as

much

as he pleases, to withhold the remainder.

He may elect

12.

to wlthhold or

to disclose. but after

a certam point,

his election must remaln final".

It IS

important to appreclate the role the

claim book

has In the arqument about walver. Any prlvilege attaching to the

claim

book itself has been waived and

that

waiver 1 s accepted by

all concerned. What is in issue is whether there has been waiver

of privllege attachlnq to

a number of documents that came into

exlstence during the preparatlon by the claimants of their land

claim.

For the purposes of the matter now before the Court, it is

not suggested that the prlvilege attaching

to that material has

been lost in any

way

other than by the production of the clalm

book to those participating in the inquiry when the hearing began

before Kearney

Waiver occurs, at

any

rate

tne

case

i r g d

professional privilege, by the offer of testimo-ng

as-to specific

facts or speclfic communications and the question then arises as

to what facts and communications thereby become admissible though

otherwise the subject of privilege. While the giving of testimony

is the usual way in which waiver occurs, circumstances giving rise

waiver are not quite

confined. Thus, in Nea Karteria

Maritime

Co. Ltd.

v. Atlantlc and Great Lakes Steamship Corp.,

Mustill

a+, p . l - 1 9

used

expressions

such

as "whether

the

Plaintiffs have made use of the boatswain's statement before the

face of the

court" and 'I...

where a party chooses to deploy

evidence which would otherwlse be prlvileged the court and the

opposition must, in relation to the issue in question, be given

the opportunltg to satisfy themselves that they have the whole of

I ..

13.

the materlal and not merely

a fragment". Thus

walver may occur

throuqh cross-examlnatlon or

by the tendermq of a document.

In General Accident Flre & Life Assurance Corp. Ltd. Tanter C19847 1 All E.R. 35 at p.47. Hobhouse J. said of waiver ln

regard to documents relatlnu to matters'	In a memorandum for which	_-	_ .
prlvileue was waived before trial:	1:

"The	underlying principle is one of fairness in the

conduct of the trial and does not

qo further than

that.

The fact that

this principle does not arise unless

you

adduce the evidence

at the trlal is clearly stated in

the judgment of Mustill J. and it was clearly raised by the facts in Doland Ca reference to Georqe Doland Ltd.

v. Blackburn Robson Coates & Co. (a firm) C19727 3 All

I .

E.R.

9593 and it was likewise raised by the facts

, ,

Great Atlantlc Ca reference to Great Atlantic Insurance

.i.

U. v.

Home Insurance Co. C19813

2 All

E.R. 4857 and

3 -

Burnell Ea reference to Burnell v. British Transport

Commxssicjn C19553 3 A l l E.R. 8223."

..	-
- ._

Phipson on Evidence (1st supplement to 13th

ed.

paras.15-20) comments on the judgment of Hobhouse

J.:

"It 1 s .

however, respectfully submitted that there are difficulties with the part of the Judgment

of Hobhouse

J. whlch holds that the test for

a waiver of associated

documents is whether or not the source document has have been induced by the way in whlch the argument

proceeded before

hjm. Hobhouse J. rlghtly identified

a waiver as havlng taken place in relation to the note

of the conversation when the Civil Evidence

ACE Notice

was served. In so far as the waiver of privilege extended beyond the note Itself, it i s hard to see how

could

make

any

difference

whether

not

the

document was formally tendered In evidence.

The judge

was much influenced by considerations of fairness; but

that commodity is not a deslderatum only In the course

of actions which proceed to trlal. Settlements take

place on the

basis

the

discovery

between

the

, '

parties, and it can hardly be right that

a party can

selectively walve prlvllege at the time of servlng his

list

documents. on the basls that the

loss

privllege is confined to the documents disclosed unless

there 1 s a

trlal a

the documents

are put

ftvldence"

There is no question of selectively waivinq privilege in

the present case. There are documents in evidence held to be

.. - -

privileged,

which

documents

have

not

been

put

before

the

Commissioner in the course of the inquiry. The claimants have not

made use of

them or deployed them or relied upon them in

any way

that destroys privilege. The fact that, in earlier proceedings,

the 1982 claim book was sought to be tendered but was not received

In evidence does not remove privilege from the documents

question.

Neither

implied

intention

nor

fairness, the double

elements mentioned by Wiqmore, justlfies

a contrary conclusion.

Some

documents ID respect of

which legal professional

privilege was upheld by the Commissioner have lost that privilege

. -.

(deliberately so, it

would

appear)

their

incorporation

expressly or by reference

proofs of evidence provided by the

Central Land Council. Some concern was expressed by counsel for

the

claimants

the

implications

Mr.

Reyburn

giving

evidence in due course. That matter

has not yet arisen, that is

I ..

the

sense

Mr. Reyburn

putting

evidence

before

the

Commlssloner on matters relevant to the Inquiry.

The view taken

by the Commissioner

was this:

"Although Mr. Reyburn was not called

as a witness

In the

claimants' case, the same consequence must,

I think,

attach to prlvileged materials upon which

he has relied

in preparing his proof. Its tender was not ob~ected

by the applicants' counsel.

They

cannot be permitted

to lie back and

obtaln the beneflt of

a course of

action which they could not

themselves

take without

penalty, and which

it was solely within thew power to

I .

15.

stop.

I relect their counszl's submlsslon that they

are not bound

bp the conduct of thelr legal advlsers ln

this respect".

However thls matter

is not an issue before

the Court and it is

therefore undesirable to say anythinu more about it.

At the other end of the spectrum, the claimants accept

- _-

that

"to the extent

that opinions and conclusions proffered

in evidence before Cthe Commissioner3

as part of the

I -

applicants' case have been founded upon

a consideration

privileged

source

materials,

the

appllcants'

privilege in those source materials must be taken to

have been waived".

In my view, the production and distribution

of the 1982

claim book did not effect

a walver of legal professlonal privllege

attaching to documents in the possession of Mr. Reyburn. Thus

agree

with

the

conclusion

reached

the

Commlssioner.

The

Commissloner doubted that the applicants' advisers

"gave

much

i -

consideratlon at all to what might be the consequences of the	, .
I .
r

proposed tender".

Thls doubt apparently sprang from what the

Commissioner regarded as a lack of emphasis in the past upon the

production

source

material,

hence

upon

the

questions

privilege and waiver that have arisen.

I G70Uld put

the matter

rather differently. The documents in question are the sub~ect

legal professlonal privilege because they came into existence as

part of the preparation of the Warumungu Land Claim. There IS no

evldence

before

the

Commissioner

that

Mr.

Reyburn

had

ever

communicated the existence of these documents

or any role they

might have had In the preparation of the 1982 claim book to the

16.

claimants or to thelr leTal

advisers.

There 1 s simply an absence

of any evldence from

which implled waiver may be inferred.

There 1 s a further matter which bears. not

so much upon

the

princlples

applrcable

waiver,

but

upon

a fallure to

demonstrate that any of the documents in reuard to

which waiver is

araued was in fact source material for the	1982 clam book. The
point is simply that cross-examinatlon of	Mr. Reyburn failed to

identify a

relatlonship between any of the documents in question

and the contents

of the claim book.

Thus

if waiver of privilege

In the claim book resulted in walver of privilege in Its source materlal, there would still be an issue as to whether any of the documents in question constituted source material.

The

attack

made

the

Attorney-General

upon

the

Commissioner's - deci<ion in relation to certain other documents

held by Mr. Reyburn and certain documents held by	Dr. Nash can be
disposed of more shortly.

The

Attorney-General

submits

that

two

documents,

ldentlf ied

as documents

66 and 67. constitute materlal prepared by

Mr. Reyburn after

ceased workina for the Central Land Council.

Mr. Reyburn resianed

from the Centra.i Land Councii in Auqust 1983.

Document 66 was

beaun by

Mr.

Reyburn

November

1983

and

completed early in 1984 ''m anticlpatlon of beino engaged by the

C.L.C.

an anthropological

consultant

continue

the

anthropological work required for the purpose of the preparation of 'the claim"'. Document 67 was prepared in April 1985 and is "a

draft of

a further submission on the topic

Warumunqu social

~,>

' I

17.

structure I was conslderlnu

tendering to the Aboriglnal Land

Commissloner hearing the Warumungu Land Claim however

I discarded

thls draft as

I was dissatlsfled with the contents".

The Commissioner's vlew was that both documents were

.- -

some extent probahly based upon information related to Mr. Reyburn

the

claimants

and

their

wltnesses

the

course

the

_ _

preparation of the clalm.

The Commissioner was of the

opmion

that the description

of the documents "strongly sugaests that

privlleged matter

forms

a significant component of the sources

upon which they are based".

am not persuaded that the vlew

taken by the Commlssioner was wrona or that the

conclusion he drew

therefrom was in error.

The prlvileqe 1s that of the claimants

and cannot be waived without their consent. That consent wzs not

forthcoming.

_ -

As to the documents held by

Dr. Nash (being for the most

part notes of meetings held between claimants and officers of the

Central Land

Council). the Commlssioner's view was that "if they

were held for some other purpose

purposes then they are not

likely to be relevant, and to the extent to

which they deal wlth

matters relevant to the preparation of the claim they would appear

to be privileged.

T o mention then without glvinq evidence about

what transpired does not give rise to

walver." Again the

Commissioner has not been shown to have erred In this conclusion.

See Grant v. Downs

(1976) 135 C.L.R. 674.

It follows from these reasons that both applications by

the Attorney-General should be dismissed.

This conclusion makes

it unnecessary to consider a question of anthropologlcal privilege

raised by counsel for Mr. Reyburn. In any event ir; was not clear

just how

far the submission

sought recognition of some speciflc

head of privileae

regard

information

aathered

anthropologists. In the light of detailed submlsslons from all

concerned, I think it undeslrable

say

anything

about

hat

! '

There is one last matter to be mentioned. Counsel

for

Mr. Reyburn relied upon s.23E of the Land Rights Act in support of

a submission that there was

a legislative prohibltion on the

disclosure of any information acqulred by

Mr.

Reyburn in the

course of his employment by the Central Land Council

for the

purpose of

preparing the Warumungu Land Clam.

The Commissioner

i	pointed out that, in light of	his rulings generally, the point
I

appeared to relate only to one document viz. document	8 i exhibit
-

E 5 4 ( "Kinship, descent notebook"

) .

Section 23E

of the Land Rlghts Act reads:

I .

. *

( 1 ) 'Sub-section

(2) applies to every person who

15, or has been

(a) an authorized person;

(b) a member of e Land Council; or

(c)

a member of the staff of

a Land Council.

( 2 )

Sublect to sub-sectlon (3),

person to whom

this sub-sectlon applies shall not, either directly

indirectly, except In the performance

of his functions

or duties as an authorized person,

a member of

a Land

Council, or a member of the staff of

a Land Council,

make a record of, or divulge or communicate to any

person, any information concerning the affairs

of any

other person acqulred by him

by reason of

his membership

of, or employment by. a Land Councll or hls actinties as an authorized person.

Penalty:

$1,000 or imprisonment for 6 months.

(31 Sub-section (2) does

not

prevent

the

communlcatlon of Information or the productlon of a document by a person authorized bp a Land Councll for the purpose -

, I

to the Supreme Court of the Northern Territory	!,
of Australia in support of an appllcatlon made

by the Land Council under section

4 of the

Environment Protection (Northern

Terrltorv

Supreme Court) Act

1978:

to the Mlnister, to the Permanent Head of the Department that deals with matters arislng

under

this

Act

an officer

that

Department approved by the Permanent Head of that Department; or

a person to

whom, in the opinion of the

Minister, it is in the public interest

that

the

information

communlcated

the

docunent produced.

Neither the Permanent Head of the Department

that deals

with matters arising under this Act- nor an

officer of that DepdL

tmerli; approved by hin for the

purposes of sub-section

(3) shall, either directly or

Indirectly, except

for

the

purpose

of advising

the

Mlnister in connexion with this Act,

make a record of,

or divulae or communicate to any person, any information

communicated to

him

by a person to whom this section

applies, being informatlon concerning the affairs	of
another person acquired by the person to whom this

section applies by reason of his membership

of,

employment by.

a Land Councll or his activities as

authorized person.

Penalty:

$1,000 or imprlsonment for 6 months.

( 5 )

Nothlnu in thls sectlon shall be taken to

affect the operation of section 9	of the Ombudsman Act
1976.

( 6 )

In this section. "authorized person" means an

authorlzed person for thempurposes of section 23A or

23C.	' I
The submission was that, no minlsterial consent beinu in

evidence,

sub-s.23E(2) precluded any person employed by

a Land

Council from uivinq evidence before the Commlssioner of any

c-5

? G .

Lnformatlon concerning the

affairs

o r anv of the claimants

- acaulred by reason

employment

bv a Land

Council.

The

Commlssloner described thls	as	a "scartllna proposition" and it
1s.

The Commissioner pointed out that s.23E was introduced

mto the Land Riuhts Act

with

related ss.23A, 23B, 23C and 23D

Act

No. 21

of 1978. At the same tune other leuislation v1z.

Environment Protection (Allicrator

Rivers Reuion) Act 1978,

Environment Protectlon (Northern Terrltorv Supreme Court) Act 1978

and

amendments

the

National

Parks

and

Kildlife

Conservation

Act

1975

were

passed.

I aqree

with

Commlssioner's

concluslon

and

his

reason

for

eaching

the

concluslon that sub-s.23E(2) must be read in its legislative and

historlcd context ~71th

the result that Its operaticn is llmited

information

which

the

persons

mentioned

have

come

into

possession of as a result of the exercise by

a Land Council of its

powers under ss.23A and

23C, read together

with jurisdiction

conferred upon the Supreme Court	of	the Northern Territor? by
ss.23B and 23D.

It was nelther the intention nor

is it the effect of the

legislatron that courts and land commissloners are excluded from

_ .

mformatlon relevant tb thelr iuncr;ions.

In my n e w the appllcation for judiclal review should be

dismissed and the order nisi

for a writ

of mandamus should be

dlscharged.

The

parties should have liberty to apply on the

ques t ion

cos t s

w i th in

2 1

days;

the

aBsence

any

app l i ca t ion the re shou ld

order

t o c o s t s .

c e r t i f y t h a t t h i s

and

the preceding

twenty pages are

t r u e

copy

the

r easons fo r

judgment

he re in of

h i s

Honour

M r .

J u s t i c e Toohey.

basic document is put in evldence and relled upon by the party	1 - I -
clalming privilege.
r ,

admlssibility, while	he is still unsure that	he will be permitted	!'
! I

1984, following interruptlon of the hearing before Kearney J,	Lt
was aqreed that there should be an entirely fresh beglnnlng. In the new proceeding the 1982 Claim Book has not been tendered,

distrlbuted and referred to In counsel's openlng before Kearney	J.
This finding of waiver 1 s not disputed. What is disputed is hls

but the nature and extent	of the waiver wlll depend upon the facts
of the particular case.

[1986] FCA 86

27 Mar 1986