Commonwealth v Northern Land Council

[1993] HCA 24

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

THE COMMONWEALTH OF AUSTRALIA v. NORTHERN LAND COUNCIL AND ANOTHER

(1993) 176 CLR 604

21 April 1993

Practice

Practice—Discovery—Inspection—Civil proceedings—documents containing notes by cabinet officers of cabinet deliberations—Application to inspect—Public interest immunity—Inspection by court—Confidential inspection by legal advisers.

Decisions

This action was commenced in the original jurisdiction of this Court. In it the Northern Land Council is seeking remedies against the Commonwealth arising out of an agreement made between it and the Commonwealth on 3 November 1978 pursuant to s.44(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ((1) Re-enacted, in substantially the same form, as s.48D by the Aboriginal Land Rights (Northern Territory) Amendment Act (No.3) 1987 (Cth), s.5.) Among other things, the Northern Land Council claims that the agreement is inadequate, unreasonable and unfair to it; that the Commonwealth was in breach of obligations arising out of a fiduciary relationship with it in matters relating to the negotiation and execution of the agreement; that the agreement was executed by it as a result of duress or undue influence exerted by the Commonwealth; and that in acting as it did the Commonwealth behaved unconscionably. It claims a declaration that the agreement is void or that it has validly avoided it. It is unnecessary for present purposes to describe the statutory background to the action; a description is to be found in Northern Land Council v. The Commonwealth ((2) (1986) 161 CLR 1, at pp 5-7.) and Northern Land Council v. The Commonwealth (No.2) ((3) (1987) 61 ALJR 616, at p 617; 75 ALR 210, at p 211.). It is sufficient to observe that the legality of uranium mining operations upon land known as the Ranger land is said to depend upon the status of the agreement, which provides for certain payments to be made to the Northern Land Council in respect of mining on that land.

2. The action was remitted to the Federal Court. In that Court Jenkinson J. ordered that the Commonwealth produce for inspection by the legal representatives of the Northern Land Council 113 notebooks containing notes made by Cabinet officers of the deliberations of federal Cabinet and 13 other notebooks containing notes made by officers of the Department of Trade and Resources of the deliberations of Cabinet or committees of Cabinet. The Commonwealth made discovery of these documents and there is no dispute, therefore, that they were discoverable. That is to say, it may be assumed that the notebooks contain entries which relate to matters in issue in the action in the sense they would, or would lead to a chain of enquiry which would, either advance the Northern Land Council's case or damage that of the Commonwealth ((4) See Mulley v. Manifold (1959) 103 CLR 341, at p 345). However, the Commonwealth resists inspection of the documents on the ground that it is against the public interest for the contents to be disclosed.

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