Clarrie Smith v Western Australia

[2000] FCA 526

FEDERAL COURT OF AUSTRALIA

Clarrie Smith v Western Australia [2000] FCA 526

EVIDENCE – whether notes created in the production of an expert’s report are forensically relevant – whether privilege attaching to notes created in the production of an expert’s report is waived by the filing of the report – whether public interest immunity applies to Aboriginal beliefs – whether a confidentiality order is adequate in the circumstances of the case

Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247, considered
Alister v The Queen (1984) 154 CLR 404, cited
Attorney-General (NT) v Maurice (1986) 161 CLR 475, distinguished
Daniel v State of Western Australia [1999] FCA 1541, not followed
Esso v Commissioner of Taxation (1999) 168 ALR 123, applied
Sankey v Whitlam (1978) 142 CLR 1, applied

CLARRIE SMITH & ORS v THE STATE OF WESTERN AUSTRALIA & ORS
WG 72 of 1998

MADGWICK J
20 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WG 72 of 1998

BETWEEN:	CLARRIE SMITH & ORS APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS
JUDGE:	MADGWICK J
DATE OF ORDER:	20 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s legal advisers are to be granted first access to the materials produced to the Court on Subpoena dated 17 September 1999 to remove, having regard to these reasons, those materials that are not forensically relevant to the proceedings.  Those legal advisers are to indicate to the respondent’s legal advisers the classes of documents, if any, that they regard as irrelevant.  If any dispute arises, I will deal with it, if necessary, by inspection.

2.Access to the remaining materials is to be granted to counsel, instructing solicitors and the expert anthropologist engaged by the first respondent, and counsel and instructing solicitors engaged by the third respondent.  These persons may uplift only one copy of the documents, which may not be reproduced, and which will upon conclusion of the trial be returned to the Court and destroyed.  No extraneous use may be made of these materials and any necessary gender restrictions will be complied with.

3.The applicants are to pay the respondents’ costs of the motion.

4.Liberty is granted to apply on 48 hours notice.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WG 72 of 1998

BETWEEN:	CLARRIE SMITH & ORS APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS

JUDGE:	MADGWICK J
DATE:	20 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. The State of Western Australia, the first respondent in this matter, issued subpoenas directed to Dr Mana Waite, Sally Babidge and Stuart Fisher (respectively the antropologist and his research assistants engaged by the claimants to investigate their claim for native title and to produce an expert anthropological report and genealogies to be tendered as evidence in the proceedings).  The subpoena seeks production of two types of documents.  Clause 1 of the schedule seeks production of:

   “All records made…