Bropho v State of Western Australia

[2006] FCA 272

FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2006] FCA 272

EVIDENCE – applicant’s deponent’s affidavit – objections – rulings – long association with community not relevant field of expertise – nevertheless such association takes observer out of the ‘ordinary’ for purposes of s 78 – Parliamentary privilege not in issue as truth of reports not in contest

Evidence Act 1995 (Cth) ss 59, 59(2), 76, 78, 79

Parliamentary Privileges Act 1891 (WA) s 1

BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal Inhabitants of Reserve 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON
WAD 157 of 2003

BELLA BROPHO on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal Inhabitants of Reserve 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON
WAD 204 of 2004

NICHOLSON J
21 MARCH 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 157 OF 2003

BETWEEN:

BELLA BROPHO
on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal Inhabitants of Reserve 43131
APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
FIRST RESPONDENT

ABORIGINAL AFFAIRS PLANNING AUTHORITY
SECOND RESPONDENT

BARRY CHARLES JAMESON
THIRD RESPONDENT

WAD 204 OF 2004

BETWEEN:

BELLA BROPHO
on behalf of the Members of the Swan Valley Nyungah Community Aboriginal Corporation and Aboriginal Inhabitants of Reserve 43131
APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
FIRST RESPONDENT

ABORIGINAL AFFAIRS PLANNING AUTHORITY
SECOND RESPONDENT

BARRY CHARLES JAMESON
THIRD RESPONDENT

JUDGE:	NICHOLSON J
DATE:	21 MARCH 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The respondents bring objections to portions of the affidavit of Margaret Joanna Jeffrey affirmed on 25 November 2005 filed in WAD 157 of 2003.  The portions to which objection is taken and a summary statement of the grounds of objection are set out in the ‘Table of Objections’ in the schedule to these reasons.  Also contained in that schedule is the ruling on each objection together with a short statement of reasons for the ruling.

2. The short statements of reasons are based upon the considerations arising, not only generally at law but also from the submissions of the parties in relation to which I make the following observations.

   HEARSAY

3. Objection is taken by the respondents on the ground that certain parts of the affidavit are based on hearsay, that is, previous representations made by other persons which cannot be admitted to prove the existence of a fact of what the other person intended to assert by the representation: s 59 of the Evidence Act 1995 (Cth) (‘Evidence Act’). Alternatively, it is submitted that if the evidence is not sought to be tendered to prove the existence of the ‘asserted fact’ as defined in s 59(2) of the Evidence Act, then it is irrelevant. 

4. In respect of the vast number of hearsay objections, the applicant submits that supplementary affidavits would clarify what events were observed by the deponent and what were observed by others.  In reply to this, the respondents submit that such is not a satisfactory course and that the appropriate course is to strike out paragraphs which are expressed in a manner suggesting they are not based on the deponent’s personal knowledge or which leave the Court unable to determine whether they are or are not based on such knowledge.  That then leaves it for the deponent to swear a further affidavit in a proper form if that is able to be made. 

5. I agree with the submissions in reply of the respondents.  The evidence falls to be considered against the objection as it stands at the time the objection is made and required to be ruled on.  It is not for the Court to conjecture how the evidence would stand in the light of evidence not yet to hand. 

   SUBMISSIONS/ARGUMENTS/SPECULATION

6. A number of objections are taken on the ground that the affidavit contains statements that are not evidence of facts but rather comments or observations which are in the nature of submission or argument and therefore do not constitute relevant and admissible evidence.  The applicant accepts that there are elements of submission or argument in various paragraphs of the affidavit.  Where those paragraphs are not the subject of other objections, the applicant undertakes that the submissions in those paragraphs will be taken up by way of submission following the evidence of the respondents’ witnesses to which they relate.

   OPINION

7. The respondents object that the affidavit contains statements of opinion which are inadmissible by reason of s 76 of the Evidence Act. The applicant responds generally that the deponent, by reason of her qualifications and experience as set out in her affidavit and in particular her lengthy experience with the community in question, is qualified as an expert to provide opinions so far as they can be related to and are based on her observations over the 26 years of the applicant community at Lockridge campsite. It submits that where statements can be read on their face as applying to a group broader than those within that experience, they ought to be read down to apply to the Swan Valley Nyungah Community. Alternatively, it is submitted that to the extent that the deponent is expressing opinions based on what she perceived about the relevant matters or events and the evidence is necessary to obtain an adequate account or understanding of her perception of the matters or events, those opinions are admissible: s 78 of the Evidence Act. The respondents contend that the deponent’s ‘specialised knowledge’ within the meaning of that term in s 79 of the Evidence Act is psychology. It is said that her opinions on the community cannot be wholly or substantially based on that knowledge. Where claims of her expertise are relied upon, the foundations of the specialised knowledge are challenged by the respondents. Further, where the statements of opinion relate to matters an ordinary person commonly perceives, it is said that s 78 cannot apply in respect of them. It is submitted that the section has no application to the opinions expressed by the deponent in her affidavit.

8. I have been unable to agree with this latter submission. Where the opinions are expressed about matters concerning the community based on the deponent’s long association with it, in my view there is scope for some application by s 78. As a consequence of her long association with the community she cannot be regarded as ‘an ordinary person’ in making her perceptions.

   PARLIAMENTARY PRIVILEGE

9. Reference is made in the affidavit to the Report of the Select Committee on Reserves (Reserve 43131) Bill 2003 In Relation To The Reserves (Reserve 43131) Bill 2003 dated November 2004 (‘the Report’). This is a report of a select committee of the Legislative Council of the Parliament of Western Australia. The conduct of committees of Parliament cannot be called into question in proceedings before any court: s 1 of the Parliamentary Privileges Act 1891 (WA). However, the references to the Report are explained in various ways by the applicant, in particular, the references are not intended to put in issue the truth of any statement in the Report. The consequence is that the applicant states that any references by the deponent are not intended to be utilised by it to call into question the conduct of a committee of Parliament. Whether or not this is an exonerating circumstance depends on the application of the objection made in relation to each particular statement.

10. These are the general principles in accordance with which I have endeavoured to consistently resolve each of the objections. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:             21 March 2006

Counsel for the Applicant:	GMG McIntyre SC
Solicitor for the Applicant:	Dwyer Durack
Counsel for the Respondents:	G Tannin SC and S Wright
Solicitor for the Respondents:	State Solicitor’s Office
Date of Last Written Submissions:	3 February 2006
Date of Judgment:	21 March 2006

SCHEDULE

TABLE OF OBJECTIONS

No.	Par	Portion	Grounds	Ruling	Reasons
1.	1	Last two sentences	·   Submission/argument	Allowed	Open to submissions
2.	2	Whole	·   Submission/argument	Allowed	Open to submissions
3.	6	Whole	·   Opinion ·   Submission/argument ·   Irrelevant	Allowed	Not expert opinion Portion open to submission
4.	7	Sentence beginning ‘As the Report …’ and sentence beginning ‘The complaints of lack…’	·   Hearsay ·   Opinion	Dismissed re first  sentence Allowed re second sentence	First sentence to be read as her perception within s 78 Second  sentence hearsay
5.	7	Sentence beginning ‘The attached Briefing Note…’	·   Hearsay/Relevance	Allowed	Irrelevant
6.	9	From ‘The Interim Report…’ to the end of the paragraph	·   Hearsay ·   Submission	Allowed	Open to submissions
7.	10	First sentence	·   Hearsay ·   Alternatively, speculation with no basis	Disallowed	On basis is a statement that no such event occurred at the SVNC (‘Swan Valley Nyungah Community’) Reserve
8.	10	From ‘The Coroner did not…’ to the end of the paragraph	·   Hearsay ·   Submission	Allowed	Open to submissions
9.	16-23	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
10.	24-29	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
11.	33	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
12.	34	Whole	·   Irrelevant	Allowed	Open to further affidavit in proper form if available
13.	39	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
14.	43-46	Whole	·   Hearsay ·   Submission	Allowed	Open to further affidavit in proper form if available
15.	50	Whole	·   Submission/argument	Allowed	To be taken up in submissions
16.	52	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
17.	55	Whole	·   Opinion ·   Submission/argument	·   Allowed ·   Allowed	·   Submission element to be taken up in submissions
18.	58	Last sentence	·   Hearsay	Allowed
19.	59	First sentence	·   Opinion	Disallowed	Within s 78 and no objection to relevance
20.	59	From ‘The first was when he defended…’ to the end of the paragraph	·   Hearsay	Allowed	Open to further affidavits in proper form if available and relevant
21.	60	First sentence	·   Hearsay	Allowed
22.	62-68	Whole, except for: ·   The last sentence in paragraph 67; and ·   The words ‘Neither I’ and the words ‘has ever seen him provide anyone with alcohol’ in paragraph 68	·   Hearsay	Allowed, subject to the stated exceptions	Open to further affidavits in proper form if available and relevant
23.	69	Last sentence	·   Hearsay	Allowed
24.	72	First sentence	·   Hearsay/Relevance	Allowed	Irrelevant
25.	75	Sentence beginning ‘The Report of the Select Committee…’	·   Hearsay ·   Parliamentary Privilege	Disallowed	Truth not to be put in issue

26.	75	Sentence beginning ‘The comments…’	·   Hearsay ·   Opinion ·   Parliamentary Privilege ·   Submission/argument	·   Allowed in part ·   Disallowed ·   Disallowed ·   Allowed in part	·   Reference to ‘The comments of the Hooker Report’ ·   Within s 78 as to her own observations of DCD (‘Department of Community Development’) ·   Truth of report not to be in issue ·   Applicable only to references to two reports, not personal observations
27.	92	Whole	·   Hearsay ·   Parliamentary Privilege ·   Submission/argument	·   Allowed ·   Disallowed ·   Allowed	·   Truth of report not to be in issue ·   Open to submissions
28.	93	Whole	·   Opinion ·   Submission/argument	·   Allowed ·   Allowed	·   Impossible to disassociate personal knowledge within s 78 ·   Open to submission
29.	94	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
30.	95	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
31.	97	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
32.	99	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
33.	100	Whole	·   Hearsay	Allowed	Open to further affidavit in proper form if available
34.	104	From ‘The inconsistency is very…’ to ‘… paragraph 24).’	·   Argument	Allowed	Open to submission
35.	104	From ‘At this visit…’ to the end of the paragraph	·   Hearsay	Allowed	Open to further affidavit in proper form if available
36.	106	Last sentence	·   Hearsay	Allowed	Open to further affidavit in proper form if available.
37.	107	Whole	·   Opinion ·   Submission/argument	·   Disallowed first three  sentences ·   Allowed last three sentences	·   Within s 78 ·   Open to submission

38.	108	From ‘If authorities had...’ to the end of the paragraph	·   Opinion ·   Submission/argument	·   Allowed ·   Allowed	·   Not within s 78 ·   Open to submission
39.	120	Sentence beginning ‘If health services other…’	·   Opinion	Disallowed	Within s 78
40.	123	First two sentences	·   Submission	Allowed	Open to submission
41.	123	Last sentence	·   Hearsay ·   Submission	·   Allowed ·   Allowed
42.	124	Whole	·   Submission/argument	Allowed	Open to submission
43.	126	From ‘As any anthropologist…’ to ‘… is the white society’.	·   Opinion ·   Hearsay	·   Allowed ·   Allowed
44.	126	Last sentence	·   Argument	·   Disallowed	Within s 78
45.	127	Whole	·   Submission/argument	Allowed, second sentence	First sentence is a statement of fact seemingly within deponent’s personal knowledge
46.	128	Whole	·   Submission/argument	Allowed	Open to submission
47	130	First three sentences	·   Submission/argument	Allowed	Open to submission
48.	136	Whole	·   Hearsay	Allowed
49.	137	Whole	·   Hearsay	Allowed
50.	138	Whole	·   Opinion	Disallowed	To be understood in the terms of s 78
51.	139	Whole	·   Hearsay ·   Submission	·   Allowed ·   Allowed
52.	140, 141	Whole	·   Opinion ·   Hearsay	·   Allowed, second sentence ·   Disallowed	·   First sentence seemingly within deponent’s perception: s 78
53.	144	Whole	·   Hearsay	Allowed in relation to Sophie	Deponent capable of giving evidence on SVNC
54.	137 (sic)	The words ‘His report fails to take into account that’	·   Argument	Allowed	Open to submission
55.	137 (sic)	Last sentence	·   Hearsay	Allowed

Annexure	Portion	Grounds	Ruling	Reasons
56.	MJA	Whole	·   Hearsay ·   Opinion ·   Irrelevant	·   Allowed ·   Allowed ·   Disallowed	·   Deponent not relevantly an expert:  s 79 ·   Relevant to explanation of deponent’s view
57.	MJB	Whole	·   Hearsay ·   Opinion	·   Allowed ·   Allowed
58.	MJC	Whole	·   Hearsay ·   Opinion ·   Parliamentary Privilege	·   Allowed ·   Allowed ·   Disallowed	·   Deponent not relevantly an expert:  s 79 ·   Truth not in issue
59.	MJD	Whole	·   Hearsay	Allowed