Forrest And Forrest Pty Ltd and Minister for Aboriginal Affairs [No 2] - [2025] WASAT 101

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ABORIGINAL HERITAGE ACT 1972 (WA)
CITATION:   FORREST AND FORREST PTY LTD and MINISTER FOR ABORIGINAL AFFAIRS [No 2] [2025] WASAT 101
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   18 SEPTEMBER 2025
DELIVERED          :   19 SEPTEMBER 2025
FILE NO/S:   DR 82 of 2019
BETWEEN:   FORREST AND FORREST PTY LTD
Applicant
AND
MINISTER FOR ABORIGINAL AFFAIRS
Respondent
BUURABALAYJI THALANYJI ABORIGINAL CORPORATION
Intervener

Catchwords:

Aboriginal cultural heritage - Application for production of documents - Relevant principles - Legitimate forensic purpose - Procedural fairness - Late change of position - Turns on own facts

Legislation:

Aboriginal Heritage Act 1972 (WA)
Evidence Act 1906 (WA)
Native Title Act 1993 (Cth)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 32, s 32(1), s 32(2), s 32(7)(a), s 34(5), s 34(6)

Result:

The applicant's application for the production of documents is dismissed in relation to each of the three classes of documents sought

Category: B

Representation:

Counsel:

Applicant	:	Mr A J Papamatheos SC & Mr B Tomasi
Respondent	:	N/A
Intervener	:	Ms C Taggart & Ms V E Long-Droppert

Solicitors:

Applicant	:	Clayton Utz
Respondent	:	State Solicitor's Office
Intervener	:	Meaghan Rorrison Legal & Consulting

Case(s) referred to in decision(s):

Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 229 ALR 304
Davie v Manuel [2024] WASCA 21
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Minister for Lands, State of Western Australia v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85
Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59
Poland v Hedley [2023] WASCA 69
Veterinary Surgeons' Board of Western Australia and Hall [2019] WASAT 145
Zuleika Gold Limited (formerly known as Dampier Gold Ltd) v Vango Mining Ltd [No 2] 2025 WASC 320

REASONS FOR DECISION OF THE TRIBUNAL:

Background

At a hearing on 12 March 2025, Forrest and Forrest Pty Ltd (the applicant) sought orders for the production of certain documents by the Intervener (BTAC).
Glancy J made orders on 11 April 2025 which provided for BTAC to produce various documents (11 April Orders).
The 11 April Orders attached a Schedule which listed the classes of documents the subject of the orders which were numbered from Item 1 to Item 10.
The applicant now seeks further orders for the production of three classes of document.
One of the classes originally sought related to Items 8 and 9 of the 11 April Orders. However, at the hearing the applicant reframed the orders sought to avoid reference to Items 8 and 9. A second class of documents sought is said to fall within the scope of Items 4 and 5. A third class of documents sought concern minutes of meetings that have, until recently, been produced in a redacted form, with the applicant seeking production of the unredacted version.
For the reasons that follow, I decline to make the orders sought. The application for production is dismissed in relation to each of the three classes of documents sought.

Principles

The following principles have guided my decisions.
First, in making any decision, the Tribunal's objectives set out in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) must be considered and given due weight. Section 9(b) of the SAT Act provides that the Tribunal is to act 'as speedily and with as little formality and technicality as is practicable'. Equally relevant is s 32(2) of the SAT Act, which provides that the Evidence Act 1906 (WA) does not apply to proceedings in the Tribunal and the Tribunal 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'.
Second, the Tribunal has the power to require parties to produce documents under s 34(5) of the SAT Act. That subsection provides:
The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
It will be necessary to return to the limitation on the power to require production of documents subject to legal professional privilege.
Third, as a Tribunal created by statute, the Tribunal's powers and functions are also limited by statute.[1]
[1] See, for example, Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151, [41].
The fourth principle follows from the third and was enunciated by Pritchard J in Veterinary Surgeons' Board of Western Australia and Hall [2019] WASAT 145 (Hall), [15]: the Tribunal 'does not approach the question of production of documents on the basis of the common law principles of discovery which apply in the courts'.
Rather, as Barker J held in Nurses and Midwives Board of Western Australia and Watson [2008] WASAT 59, [11]:
[T]he primary question to be asked by the Tribunal is whether the party seeking the order for the production of a document has a 'legitimate forensic purpose' for seeking production[.]
However, as is evident from that quote, satisfaction of that test is not sufficient to justify an order for the production of documents.
That is because of the Tribunal's statutory objectives previously mentioned. As Pritchard J put it in Hall (at [15]), in considering an application for the production of documents, the Tribunal 'must also bear in mind its statutory objectives, which include achieving a resolution of disputes as quickly and with as little formality and technicality as is practical and to minimise the cost to the parties'.
Much weight was placed in submissions by Mr Papamatheos SC, who appeared with Mr Tomasi for the applicant, on the Tribunal's obligation to provide parties appearing before it with procedural fairness and on s 32(7)(a).
Section 32(1) of the SAT Act provides that the Tribunal is bound by the rules of natural justice. That is, amongst other things, the Tribunal must provide parties with an opportunity to present their respective case.
But that does not, in my view, mean that a party has carte blanche as to the case it chooses to present, with the result that, in order to allow it to do so, the Tribunal must require the production by other parties of documents on which the first party wishes to rely.
It is well established that the content of natural justice is 'not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances'.[2]
[2] Davie v Manuel [2024] WASCA 21, [88].
In the Tribunal, that includes the statutory provisions previously referred to and the nature of the dispute.
Section 32(7)(a) of the SAT Act provides that the Tribunal:
is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding.
In my view the very clear purpose of the subsection is to facilitate the Tribunal's decision-making. That is, to ensure that documents necessary for the Tribunal to exercise its statutory decision-making function are not withheld.
When read in light of the other provisions of s 32, and the statutory objectives in s 9, the scope of the term 'relevant' is relatively narrow. It requires only that the Tribunal has before it those documents which are necessary for it to fulfil its function; it does not require the parties to be allowed to engage in broad-scale enquiries seeking orders in the nature of discovery.
That is, the provision does not require the Tribunal to ensure that each and every document that might bear upon an issue is produced, let alone ensure production of each and every document that might inform a possible line of cross-examination of a witness. It is narrower than that.

Item 4 - Documents as to BTAC Agreement with Mineral Resources

By its Outline of Submissions dated 19 August 2025 (19 August Outline), filed with the Tribunal ahead of a directions hearing listed for 21 August 2025, the applicant identified what it said was an issue of non-compliance with Item 4 of the 11 April Orders.
Item 4 identifies a class of documents which BTAC is required to produce as follows:
All agreements, including ILUAs,[3] Native Title Agreements or other agreements:
(a)to which BTAC or the Thalanyji people are a party; and
(b)which relate to land in, or near, the Ashburton River or Beadon Creek.
[3] Indigenous Land Use Agreements under the Native Title Act 1993 (Cth).
Because of their inter-relationship, Item 5 is also relevant. It requires production of:
All documents relating to compensation, business opportunities, royalties and payments provided to, or to be provided to, BTAC in connection with any of the agreements referred to in 4 above.
In its applicant's Outline of Submissions for Directions Hearing 21 August 2025, filed 19 August 2025 (Applicant's 19 August Outline), the applicant submitted that the 'Onslow Iron Project Haulage Road ILUA' (Onslow Iron ILUA), which BTAC entered into with Mineral Resources Pty Ltd (or its related parties), falls within the scope of Item 4.
It also submitted that, as the applicant has 'pleaded' that document in its statement of issues, facts and contentions (SIFC), it should be produced on that basis alone. As that basis is no longer pressed, it is unnecessary to address it but, based on the principles I have outlined above, I disagree; the Tribunal is not compelled to require Party B to produce a document merely because Party A has referred to it in its SIFC.
At the 21 August directions hearing Ms Taggart, who appeared for BTAC, advised that the application (which included a considerable volume of evidence as well as substantial written submissions) had been filed so recently prior that she had been unable to take instructions.
In that regard, she made submissions as to the nature of BTAC and its members, including that they lived remotely and were often difficult to contact. I accepted those submissions and made orders on 21 August 2025 that included the following:
12.The Applicant and Intervenor are to confer as to the programming of:
(a)the Applicant's interim application to vary the scope of Items 8 and 9 of the orders of President Glancy dated 11 April 2025; and
(b)the Applicant's application for the production of:
(i)any agreements, including Indigenous Land Use Agreements, native title agreements or other access instruments, between Mineral Resources Ltd (or its related entities) and the Intervenor (or its related entities or its directors or their related entities); and
(ii)all documents created between 1 January 2024 and 30 June 2025 as to compensation, business opportunities, royalties, invoices or payments in relation to Mineral Resources Ltd (or its related entities).
On 26 August 2025, the applicant filed an 'Updated Minute of Proposed Orders …' which proposed Order 5 in the following terms:
5.Pursuant to s 34(5) of the State Administrative Tribunal Act 2004 (WA), the Intervenor must by [date of orders + 7 days] produce:
(a)to the Tribunal:
(i)any agreements, including ILUAs, native title agreements or other access instruments, between Mineral Resources Ltd (or its related entities) and the intervenor (or its related entities or its directors or their related entities);
(ii)all documents created between 1 January 2024 and 30 June 2025 as to compensation, business opportunities, royalties, invoices or payments in relation to Mineral Resources Ltd (or its related entities)
(b)to the Tribunal and the Applicant, a list of such documents produced.
That proposed order was supported by submissions in the applicant's Outline of Submissions Interim Application for Hearing 10 September 2025, filed 28 August 2025 (Applicant's 28 August Outline), which commenced by stating that the applicant 'seeks production of the … [Onslow Iron ILUA] and associated documents.': at para 32. The following paragraphs are consistent with that limited scope.
BTAC's Outline of Submissions in Opposition of 5 September 2025 (BTAC's Outline) quite correctly identifies that the proposed orders went very considerably further than the stated position of seeking only the Onslow Iron ILUA 'and associated documents'.
Indeed, as BTAC's Outline correctly identifies (para 55), proposed Order 5 contains no date range and:
… seeks all agreements between MRL [Mineral Resources Ltd] including its associated entities and BTAC including its associated entities, directors and related entities of BTAC, its associated entities and/or directors. The proposed order is unlimited to any reference to the Ashburton River, Beadon Creek or any other qualification. There is no date range …
At the hearing, Mr Tomasi submitted for the applicant that upon further reflection, he accepted the strength of BTAC's relevant submissions, and that he sought to alter the scope of proposed Order 5.
Before I turn to the applicant's new position, I note that Ms Taggart took issue with the applicant's late change of position. She submitted that the very late change disadvantaged BTAC as she had taken instructions, drafted BTAC's Outline and otherwise prepared for the hearing on the basis of the applicant's stated position, only for the applicant to alter its position halfway through the hearing.[4]
[4] Mr Tomasi made his submissions after Senior Counsel had addressed me on Items 8 and 9, which is addressed below.
I have much sympathy for Ms Taggart's submission. In that regard I note that, as I have previously indicated, in support of the applicant's case, Mr Papamatheos SC had, previously, made extensive submissions, and placed very considerable weight on what he said was the right of his client to procedural fairness. That those submissions were made ahead of very late changes of position by the applicant in relation to each of the three classes of documents sought, each of which effectively denied BTAC the opportunity to properly respond to its (the applicant's) case is, to say the least, ironic.
Ms Taggart did not, however, seek further time to respond and, indeed, made persuasive submissions resisting the application. I therefore turn to consider the relative positions of the parties.
The applicant now seeks orders in this regard as follows:
3.Pursuant to s 34(5) of the State Administrative Tribunal Act 2004 (WA), the Intervenor must by [date of orders + 7 days] produce:
(a)to the Tribunal:
(i)the Onslow Iron Project Road ILUA and any associated agreements;
(ii)all documents created between 1 January 2024 and 30 June 2025 as to compensation, business opportunities, royalties, invoices or payments in relation to the Onslow Iron Project Road ILUA and any associated agreements.
In seeking that order Mr Tomasi confirmed that the applicant's case was limited to the proposition that the Onslow Iron ILUA fell within the scope of Item 4 of the 11 April 2025 Orders. He relied upon three submissions in that regard.
The first submission was contained in the applicant's 28 August Outline, at paras 34 - 36, in which the applicant submits, in effect, that:
(1)the Onslow Iron Project Haul Road is located between the Ashburton River and Beadon Creek;
(2)the evidence of Thalanyji people as recorded elsewhere (specifically, by the National Native Title Tribunal in Minister for Lands, State of Western Australia v Buurabalayji Thalanyji Aboriginal Corporation RNTBC [2014] NNTTA 85, [209] - [211], [214] and [215] and in hearings described as concerning 'Preservation Evidence') is to the effect that a water serpent (Warnamankura) travels between those two places;
(3)that evidence is also to the effect that Warnamankura rises at or travels between the 'Macedon Project' and the 'Onslow Salt Project', which are located either side of the Onslow Iron Project Haul Road; and
(4)BTAC has produced copies of agreements for both those projects pursuant to Item 4.
That is, the applicant's primary written submission was to the effect that BTAC's refusal to produce the Onslow Iron ILUA was inconsistent with its production of the ILUAs for the Macedon Project and the Onslow Salt Project (First Submission).
In oral submissions, however, Mr Tomasi put the matter slightly differently. He took me to the evidence of the Thalanyji referred to above, which he submitted was to the effect that the water serpent travelled (broadly speaking) in a counter-clockwise direction from Beadon Creek, through Onslow and along the coast to the Ashburton River, then downstream to a location known as Five Mile, where it effectively turned back towards Beadon Creek.
He submitted that the scope of Item 4 must be understood by reference to that evidence.
That is, as I understand it, the applicant submits that the words in Item 4, which require production of ILUA's and other agreements 'which relate to land in, or near, the Ashburton River or Beadon Creek', should be construed so that they require production of documents which relate to land over or upon which the water serpent passes or lives. (Second Submission).
Mr Tomasi agreed, when I sought to understand the effect of the Second Submission, that its effect was that all of the land between the Ashburton River and Beadon Creek fell within the scope of Item 4.
I do not accept either the First or the Second Submission.
As Ms Taggart submitted, the First Submission relies upon the unstated and unproven proposition that the area covered by the ILUAs for the Macedon Project and the Onslow Salt Project reflect particular locations for each of those projects.
However, as is evident from the ILUA of the Onslow Iron ILUA, that is not necessarily the case. The affidavit of Mr Gordine affirmed 5 September 2025 (Exhibit 4) attaches maps of the relevant land area, which show that the Onslow Iron ILUA covers only a small portion of the relevant haul road.
In reply submissions Mr Papamatheos SC took me to the ILUA for the Macedon Project, which is contained in Annexure DMB-8 to the Benson Affidavit of 27 August 2025 (Exhibit 1) at pages 252 - 253.
That document does not include a map showing the physical location of the land covered by the ILUA. It does, however, show that a pipeline forming part of the project crosses the Ashburton River.
Two matters of significance for the determination of this issue arise. First is that that pipeline appears to travel some considerable distance from the 'location' of the project as marked on the relevant map to which I was taken. Second, and acknowledging the possibility of an inconsistency with the matters discussed above in paras [48] and [49], that a pipeline associated with the project crosses the Ashburton River supports the view that the relevant ILUA satisfies the criteria in Item 4 of the 11 April Orders - that is, that the Macedon Project ILUA 'relates to land in, or near, the Ashburton River'.
By way of contrast, Mr Gordine's evidence is to the effect that, at its nearest point the Onslow Iron ILUA is 2.9 kilometres from the Ashburton River (noting that the registered site constituted by the river extends to 500 metres either side of the river itself).
For those reasons I am not satisfied that there is anything necessarily inconsistent in BTAC's approach to the Onslow Iron ILUA, the Macedon Project ILUA and the Onslow Salt Project's ILUA.
I also reject the Second Submission.
The reasons of Glancy J for making Item 4 note that the terms of this Item were agreed between the parties. Her Honour noted the vague terms of the item and said that she understood the applicant to, first, accept that the item is uncertain and, second, leave it to BTAC to determine what ILUAs do and do not fall within its scope.

I was also advised by Ms Taggart, without disagreement from either Mr Tomasi or Mr Papamatheos SC, that Glancy J's orders were provided to the parties in draft with the opportunity to comment, before her Honour finalised them.
In that regard, the applicant had the benefit of legal representation at the time from a large firm of solicitors, as well as senior counsel. With the benefit of their advice, the applicant agreed to the wording of Item 4.
Having done so, the applicant now seeks to change its mind and asks me to give Item 4 a meaning which, in my view, it plainly does not have.
The words of Item 4 are, as Glancy J noted, vague; it is unclear what 'near to' means. But those words clearly mean that land located at some physical distance from the Ashburton River and Beadon Creek will not fall within its scope.
While there is some uncertainty as to what that physical distance might be, there is in my view no uncertainty that the relevant criteria in Item 4 is that of physical distance.
In my view it is perfectly plain that the words in Item 4 do not reference or incorporate any concept other than an uncertain physical distance from the two relevant waterways.
That those two waterways are the two key resting places of the water serpent does not allow for a construction of the terms of Item 4 such that reference may be (or must be) had to other places across which it might be said to move or rest.
Those words are, quite simply, not there. If the applicant (or its many and varied legal advisers) had thought that such should be included, I have no doubt that they would have pressed for them to be used.
The third submission made by Mr Tomasi was in reply. Having heard Ms Taggart refer to the evidence of Mr Gordine to the effect that Onslow Iron ILUA is a distance of 2.4 kilometres from the Ashburton River, he submitted that that distance was sufficiently close to warrant a finding that the Onslow Iron ILUA 'relate[s] to land in, or near, the Ashburton River' (Third Submission).
I also do not accept the Third Submission, which has no factual basis to support it.
What amounts to land that is 'near' the Ashburton River is a matter that appears inherently susceptible to disagreement; it is a matter about which reasonable minds may differ.
In such circumstances, if I am to be asked to adjudicate on whether a particular distance is 'near' to the Ashburton River, it is necessary for me to be able to compare that distance to something else which might be said to be relevant to the task.
But nothing was put as a factual matter against which I might assess the question and I therefore reject the Third Submission.
Accordingly, I dismiss the applicant's application for production of the Onslow Iron ILUA and associated documents. I am not satisfied that it falls within the scope of Item 4 of the 11 April Orders.

Items 8 and 9 - Documents Concerning a 'Campaign'

By Items 8 and 9, the 11 April Orders require BTAC to produce the following documents:
8.All documents relating to BTAC's "campaign to stop the Weirs going ahead" (as described on page 26 of BTAC's annual report for 2022) submitted to the ACMC[5] between September 2017 and 15 June 2018, including all documents relating to:
[5] Aboriginal Cultural Management Committee.

(a)BTAC's decision (or the decision of its members) to oppose the Applicant's Project for which consent was sought under s 18(2) of the Aboriginal Heritage Act 1972 (WA) and/or the reasons for that decision; and
(b)the involvement of AHA Logic (the company having contacted the Aboriginal Heritage Directorate in August 2017 purportedly on behalf of the Thalanyji People or BTAC) (see page 63 of the Section 24 Bundle); and
(c)to the extent not covered by subparagraph (a) above, all documents, including records of internal discussions, memoranda and material for the BTAC board, relating to negotiations with Forrest and Forrest Pty Ltd for the Applicant's Project between 2013 and 2018.

9.All documents relating to BTAC's "campaign to stop the Weirs going ahead" (as described on page 26 of BTAC's annual report for 2022) submitted to the ACMC between September 2017 and 30 June 2022, including all documents relating to the involvement of the Environmental Defender's Office in that "campaign" (as recorded on page 26 of BTAC's annual report for 2022) from September 2017 until 30 June 2022.

The applicant's position at the directions hearing on 21 August 2025 was that the inclusion of the underlined words (which I have added - they are not underlined in the 11 April Orders) reflected an error on the part of Glancy J; that is, that those words reflect a slip that may be corrected.
I expressed some concern with the proposition that one judicial officer may act so as to correct the alleged 'slip' of another. The orders set out at para [30] above were made to allow the applicant to seek the variation of the orders.
It is fair to say that there is material before me to support the proposition that the underlined words were included in error. Without attempting to be fulsome in my summary thereof, amongst other things, the underlined words are absent from the applicant's Minute of Proposed Orders of 11 March 2025, and its written submissions make no reference to the documents that were submitted to the ACMC. There are also aspects of her Honour's reasons which support the proposition.
However, there are also several indications in the relevant materials that support the contrary view. Amongst other things, the applicant's written submissions of 26 February 2025 cite several paragraphs of its SIFC, which concern the alleged 'campaign' but, to the extent that that is the case, they are only concerned with the documents submitted to the ACMC. Further, her Honour's reasons regarding Items 8 and 9 clearly proceed on the basis that her Honour understood that the orders sought were concerned with documents lodged with the ACMC.
Whether or not Glancy J made a slip in framing Item 8 and 9 is no longer to the point because the applicant now seeks to vary the orders.
But in my view the preceding context remains relevant because, as I have previously indicated, the applicant (assisted by its legal representatives) was given the opportunity by Glancy J to consider the orders in draft before they were made and did not identify the underlined words as an error.
Neither was the apparent error identified until more than two months after the 11 April Orders were made, in June.[6] It took another two months for the matter to be brought before the Tribunal. No explanation has been given for that 'failure' or delay.
[6] Affidavit of David Michael Benson in support of an Application for Document Production, sworn 19 August 2025, Annexure DM6 at page 4 of 6.
The applicant's Minute of Proposed Orders filed 19 August 2025, ahead of the 21 August 2025 sought amendments of Orders 8 and 9 as follows:
8.All documents relating to BTAC's "campaign to stop the Weirs going ahead" (as described on page 26 of BTAC's annual report for 2022) ~~submitted to the ACMC~~ between September 2017 and 15 June 2018, including all documents relating to:
(a)BTAC's decision (or the decision of its members) to oppose the Applicant's Project for which consent was sought under s 18(2) of the Aboriginal Heritage Act 1972 (WA) and/or the reasons for that decision; and
(b)the involvement of AHA Logic (the company having contacted the Aboriginal Heritage Directorate in August 2017 purportedly on behalf of the Thalanyji People or BTAC) (see page 63 of the Section 24 Bundle); ~~and~~
8A~~(c) To~~ the extent not covered by ~~sub~~paragraph ~~(a)~~8 above, all documents, including records of internal discussions, memoranda and material for the BTAC board, relating to negotiations with Forrest and Forrest Pty Ltd for the Applicant's Project between 2013 and 2018.
9.All documents relating to BTAC's "campaign to stop the Weirs going ahead" (as described on page 26 of BTAC's annual report for 2022) submitted to the ACMC between September 2017 and 30 June 2022, including all documents relating to the involvement of the Environmental Defender's Office in ~~that "campaign"~~ BTAC's "campaign to stop the Weirs going ahead" (as recorded on page 26 of BTAC's annual report for 2022) from September 2017 until 30 June 2022.
Those were also the orders sought in the applicant's Minute of Proposed Orders filed 26 August 2025, ahead of the hearing on 10 September 2025.
In responding to this aspect of the application so framed, BTAC put on evidence from three people.
The affidavit from Mr Malhotra, BTAC's CEO, describes the time, resources, money and effort spent complying with the 11 April Orders. Amongst other things, it says that BTAC has already spent $80,000 on the task.
Mr Gordine's affidavit, to which I have previously referred, relevantly deposed that:
…it is not clear to me precisely what is meant by BTAC's "campaign to stop the Weirs going ahead". I have no knowledge of there being any organised "campaign" being run by BTAC in any formal sense during the period September 2017 and 15 June 2018. In the context of the reporting period for the 2021-2022 annual report, I read "campaign" to be a reference to BTAC's defence of the weirs case before the Tribunal. At that stage the hearing had been completed but we were awaiting a decision. …
The evidence of Mr Gordine was not before her Honour when she made the 11 April Orders, and Mr Papamatheos SC advised me that it was that evidence which prompted the applicant to reformulate the orders sought.
The Affidavit of Ms Hughes of 9 September 2025 (Exhibit 2) attaches a letter of 9 September 2025 from the applicant's solicitors to BTAC's solicitors (9 September Letter), which referred to Mr Gordine's evidence and proposed orders which would provide for production of documents as follows:
(a)All documents in electronic form created, dated, sent or received by BTAC or its directors, officers or employees between September 2017 and 15 June 2018 relating to BTAC's decision (or the decision of its members) to oppose the Applicant's MARS Project;
(b)All correspondence in electronic form between BTAC and AHA Logic sent or received in the period September 2017 to 15 June 2018 relating [sic to] BTAC's opposition to the Applicant's MARS Project;
(c)All correspondence in electronic form between BTAC and the Environmental Defenders Office sent or received in the period September 2017 to 30 June 2022 relating [to] BTAC's opposition to the Applicant's MARS Project;
At the hearing, a further version of a Minute of Proposed Orders was handed up, which included these revised orders.
The 9 September Letter complains that BTAC's submission, that the previous version of the orders sought were vague, was made late. It also complains that there has been a failure to confer. Whether or not there is strength to those allegations, the effect of the applicant's change of position on the day before the hearing was to deprive BTAC of the opportunity to obtain instructions and to properly prepare its case against the new proposed orders.
In any event, I have considerable reservations about the scope of the new proposed orders.
Perhaps the most obvious concern is that which I raised at the hearing, being the scope of proposed Order 1(a)(iii), which seeks production of all electronic correspondence between BTAC and the Environmental Defenders Office (EDO).
The EDO employs solicitors and provides legal advice. An order requiring the production of all electronic correspondence (which, in the current age, appears likely to cover all, or almost all, correspondence) would likely, in my view, require the production of correspondence protected by legal professional privilege. As I have noted, such documents cannot be the subject of orders under s 34(6) of the SAT Act.
When I raised that with Mr Papamatheos SC, he indicated that another firm of solicitors was 'on the record' for BTAC at the relevant period. That may be so, but that does not mean that the EDO was not providing legal advice.
Another difficulty is the scope of proposed Order 1(a)(i):
All documents in electronic form created, dated, sent or received by BTAC or its directors, officers or employees between September 2017 and 15 June 2018 relating to BTAC's decision (or the decision of its members) to oppose the Applicant's MARS Project; …
This paragraph seeks all documents that were 'created, dated, sent or received' by BTAC between the two dates, which I understand are the dates on which the ACMC resolved that the Ashburton River was not an Aboriginal site under the Act and the date on which ACMC made its recommendation to the Minister under the Act to decline consent.[7]
[7] See, for example, the Applicant's Outline of Submissions in support of Interim Application for Production of Documents, 26 February 2025, paras 9 - 13.
Again, it seems highly likely that such documents would include communications with solicitors that would attract legal professional privilege.
But in any event, I do not understand why the applicant should obtain access to such documents.
The applicant's case before Glancy J was that there was evidence of a 'campaign' to 'stop the weirs' and, indeed, BTAC's 2022 annual report refers to such a campaign.
But the unchallenged evidence of Mr Gordine is to the effect that he has 'no knowledge of there being any organised "campaign" being run by BTAC in any formal sense during the period September 2017 and 15 June 2018 …' and that he reads 'campaign' in the 2022 annual report as a 'reference to BTAC's defence of the weirs case before the Tribunal'.
In those circumstances, I am not satisfied that BTAC should be required to hand over the documents sought.
These proceedings are concerned with the review of a decision of the Minister, informed by the ACMC's recommendation.
The newly framed orders seek BTAC's internal documents, and communications with third parties regarding those matters. I do not accept that they should be produced for the applicant's benefit.
To the extent that those documents ultimately made their way to the ACMC, I am advised by Mr Papamatheos SC that they have been provided to the Tribunal by the Minister in the s 24 Bundle of Documents. It is those documents that are relevant, not previous drafts or correspondence between BTAC and third parties about the process.
That reasoning also applies to proposed Order 1(a)(ii), which seeks communications between BTAC and a firm of cultural heritage consultants.
In short, in light of the evidence of Mr Gordine, I am not satisfied that there is a legitimate forensic purpose for the orders sought.
Certainly, in my view, any such purpose is outweighed by case management factors.
I am very concerned with the amount of time, resources and money that BTAC has already spent on searching for, reviewing, considering, advising on, taking instructions on, and producing, documents.
I would have that concern regardless of the stage of these proceedings, but given there are less than eight weeks before the final hearing, in a matter that has been on foot for many years, my concern is very considerable.
For these reasons, I refuse the application as it concerns the proposed orders as described in the 9 September Letter.

Unredacted Minutes

By Order 10 made 20 December 2024, each of BTAC and the respondent is required to indicate certain documents that they propose to rely upon at the final hearing.
Relevantly, BTAC has indicated that it will rely upon Minutes for the following three meetings:
(a)The BTAC AGM of 19 October 2018.
(b)The BTAC AGM of 31 January 2020.
(c)Common Law Holder's meeting on 25 March 2025.
In addition, BTAC's SIFC at para 45(a)(iii) refers to the first two of those sets of Minutes in support of a contention that Thalanyji people oppose the applicant's proposed works.
BTAC has produced copies of those documents but only in a redacted form.
The applicant seeks production of an unredacted version, which BTAC resists.
The Applicant's 19 August Outline included submissions to the effect that, as a matter of procedural fairness, it 'must be able to understand and test evidence put against it … [being] that the Thalanyji people are, it is said by BTAC, against the weirs … and have voted against it at meetings'.
I understand that submission, as it was developed on 21 August 2025, to say that the applicant should be able to place the decision of the Thalanyji people, recorded in each set of Minutes and upon which BTAC relies, within the context of the discussion which preceded it.
That is also the basis of the submissions contained in the applicant's 28 August Outline. So, for example, at para 47, it is said that the applicant should be able:
… to test whether there was, for example, dissent expressed by members of the group at the meeting, a commercial rationale for holding out, or incorrect or incomplete information as to environmental impacts or intentions, or inducements or even simply an inadequacy of explanation of the proposal which led to members not being sufficiently informed. All of these are real possibilities and are relevant to the Tribunal interrogating, assessing and weighing the worth, if any, of the views of those members of BTAC present and voting on the resolution at those meetings.
There is some strength to that submission.
BTAC appears to agree. Accordingly, it caused its external solicitor, Mr Rorrison, to review each of the three sets of Minutes and identify any part of them which concern this proceeding or the applicant's proposal to build the weirs that are the subject of this proceeding.
Mr Rorrison's email of 25 August 2025 to the applicant's solicitors states that:
… in light of the concerns raised by your client to ensure that is [sic it] has relevant 'context' as regards those parts of the minutes which have been disclosed, I have been instructed to review the minutes for the purposes of identifying any other part of the minutes which concern the weirs or SAT proceeding. Having undertaken that review, amended versions of the redacted minutes have been prepared and are attached[.]
The email then replicates the additional text which has been unredacted in those attached documents.
It seems to me that, in the absence of evidence of something untoward, the word of a fellow legal practitioner that they have reviewed certain documents, and that those reviewed documents do not contain any relevant material, should be sufficient to allay any such concerns to the contrary.
When I put that to Mr Papamatheos SC, he disclaimed any suggestion that he was challenging Mr Rorrison's word.
He did, however, take me to various differences between the documents previously produced and those produced under Mr Rorrison's email.
(a)The 2018 Minutes:
(i)The substantive portion of the Minutes are in two columns, headed 'Item' and 'Minutes' respectively.
(ii)In the first version provided, the redacting covers the whole of the column within which the redacted words appear, with the result that the blacked out areas appear as a solid block. By contrast, in the second version, only the words themselves are redacted, leaving considerable areas of white space.
(iii)In the first version, the unredacted text appears on page 8. The relevant Item under which it appears is '5. Governance Presentation'. By comparison, in the second version, the unredacted text appears on pages 8 and 9 - it starts further down page 8 and extends to page 9. In addition, the Item is redacted. Given it was not redacted in the first version, I assume that that is an error/oversight.
(iv)Another difference is some further text on page 11 of the second version, which appears under a different Item, which is redacted, as is each of the four Items which precede it.
(v)A third difference is that the second version is 12½ pages long, while the first version is not quite 12 pages long.
(vi)In both cases, the Minutes are unsigned, which might explain both of the two material differences - the length and the location of the unredacted text. One reasonable suggestion is that they are both drafts, with the second containing text that does not appear in the first. I presume that Mr Rorrison did not check the two versions. Perhaps he should have, but that does not cause me to doubt the veracity of his email.
(b)The 2020 Minutes:
(i)The differences between the two versions of the 2020 Minutes are, in my view, almost certainly due to the differences between a draft (the first version is marked as such) and the final, authorised, version (the second is signed as approved).
(ii)The second/final version is described as having been recorded by a Ms Rosolita, which is absent in the first/draft.
(iii)The differences in the manner of redaction reflect those of the 2018 Minutes described above.
(iv)The second/final version is 16 pages long, while the first/draft is only six pages.
(v)The relevant text is described under Item '22. Weirs' in the first/draft version, while in the second/final version it is described under Item '23. Weirs'.
(vi)The text which appears in the first/draft version is replicated in the second/final version, but in the latter it is preceded by a paragraph of text which does not appear in the first/draft version. To be clear, the new text in the second/final version would appear to be entirely absent from the first/draft version rather than simply redacted. That appears to be the case because the common text commences on the first line of the 'Weirs' Item.
(vii)Again, it would appear that Mr Rorrison did not recognise that the version he provided to the applicant's solicitors is a final version, whereas what had previously been provided was a draft. But, again, there is nothing that arises from the comparison which causes me to doubt the veracity of Mr Rorrison's email.
(c)The 2025 Minutes:
(i)The first version concerns a meeting held on 25 March 2025 and is 16 pages long, with the relevant pages identified as 'x of 16' at the bottom right corner of each page. It finishes with a section for the minutes to be signed as true and accurate.
(ii)By contrast, the second version amounts to a single document of 23 pages that covers a meeting held on 25 and 26 March 2025, with each day's proceedings starting with a 'cover' sheet containing the attendees and ending with a section for them to be signed as true and accurate.
(iii)Neither of the signing pages have been completed. That is, both versions are draft Minutes and, consistent with the other two sets of Minutes, it seems entirely reasonable to suggest that the differences between them represent different versions of two drafts. I note in that regard that the font type is also different between the versions.
(iv)The relevant item heading, being Item 4. 'SAT Construction of Weirs Matter (Ashburton River)' appears on page three in both versions, albeit lower down the page on the second. In the first version the record of the relevant resolution is on page four of 16, whereas in the second, it is on page five.
(v)The only other difference is represented in the manner of redaction, which is consistent with that described above.

As I have said, I am not satisfied that the differences between the documents represent evidence of anything untoward. It seems entirely reasonable to think that the differences simply represent different drafts.
In any event, I indicated to the parties in the hearing that I was willing to examine the unredacted version of the documents to ensure that no other text that might provide relevant 'context' to the resolutions relied upon by BTAC remained undisclosed.
There are two difficulties with such an approach. The first is the risk that I might view something that might give rise to one or both parties applying for my recusal. That risk is, in my view, capable of being managed.
Another more problematic difficulty is that, in the hearing, the applicant sought to agitate another, entirely new, ground upon which it sought production of the documents.
As I understand the submission, it was put that one or more of the Minutes might contain references to matters other than the applicant's proposal to construct weirs on the Ashburton River and/or these proceedings, which might provide a basis upon which the applicant might challenge the veracity of the strength of the Thalanyji people's cultural beliefs, or the extent to which those beliefs are capable of being managed in various ways.
Ms Taggart said that she was unable to respond to this new ground and sought leave for additional time to respond.
If the new ground had any merit, I would grant Ms Taggart's request for leave. However, the new ground is baseless and is nothing more than fishing. I am of that view because nothing was put to me, save the differences in the versions of the documents described above, to suggest that the redactions may contain references relevant to the current proceedings.
That is, I am not satisfied, on the material before me, that there is a 'legitimate forensic purpose' to the application.
The result is that if, I was to consider the unredacted versions of the Minutes, I would limit the scope of my examination thereof to the question of 'context' only. If the applicant wishes to pursue such an application, I encourage the parties to confer so as to address the management of the other matter raised (i.e. recusal).
There is one other matter that must be addressed.
In Mr Rorrison's email, he asserts that the redacted portion of the 2025 Minutes preceding the resolution concerning the weirs is protected by legal professional privilege. There is no other evidentiary support for the claim.
Mr Papamatheos SC submitted that that was inadequate and that a claim for privilege must be supported by evidence on affidavit.
That may be so when, having been ordered by a court to produce discovery, a party claims privilege which is then challenged and the matter comes for determination.
That is not the case here. As I have made clear at the beginning of these reasons, save for the obligation on the maker of the decision under review, there is no obligation to produce documents; there is no 'right' of discovery.
Rather, consistent with the approach taken in this case, if a party desires access to documents held by another party, it must seek orders for its production under s 34(5) of the SAT Act. As I have also noted above, that section prevents the making of orders requiring the production of documents subject to legal professional privilege.
In the circumstances, I am satisfied that, at this stage of the proceedings, Mr Rorrison's assertion is sufficient. In so saying, I have reached that view in light of the very specific instructions which Mr Rorrison says that he was given, to examine the relevant documents in light of the applicant's request for production. His conclusion that the relevant part of the Minutes are protected by legal professional privilege appears grounded in that request.
That is not to say that I consider Mr Rorrison's opinion as conclusive. Plainly, if the applicant wishes to challenge it, it may do so. The ability to address that issue was another reason why I offered (and continue to offer) the parties the possibility of my review of the unredacted version of the Minutes.
Rather, my conclusion as to the adequacy of Mr Rorrison's emailed ascertain of privilege is contextual. That context includes that he was asked to consider the relevant Minutes and, having done so, expressed the relevant view.
It may be that, in other contexts, a claim for privilege should be more fully developed but I am not satisfied that that is the case here.
Finally, as to privilege, the applicant submits that any such privilege as might have once existed has been waived by BTAC's reliance on the resolution recorded in the 2025 Minutes, in support of its contention that the Thalanyji people oppose the weirs project.
The applicant referred to the recent decision of Palmer J in Zuleika Gold Limited (formerly known as Dampier Gold Ltd) v Vango Mining Ltd [No 2] 2025 WASC 320. in support of its submission of waiver.
The relevant passages appear to be [29] - [31], which are as follows:
29The principles regarding when legal professional privilege is waived were discussed by the Court of Appeal in Poland v Hedley.[8] The court summarised the position as follows:
Legal professional privilege exists to protect the confidentiality of communications between the lawyer and client. It is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege. The assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege-holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Where the privilege-holder's conduct objectively evinces the requisite inconsistency, the law will recognise the inconsistency and its consequences, even though such consequences may not reflect the subjective intention of the privilege-holder. The assessment is to be made in the context and circumstances of the case, and in light of any considerations of fairness arising from that context or those circumstances. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether, objectively, there is inconsistency. There is not, however, some overriding principle of fairness operating at large. All the circumstances must be looked at, including whether any disclosure to a third party was on terms and in circumstances consistent with the preservation of confidentiality.
30In Poland v Hedley, the Court of Appeal said the mere reference to a document will not constitute a waiver of privilege and the Rules contemplate that an application to inspect a document referred to might be met with a claim for privilege.[9]
31The Court of Appeal explained, however, that where a party to proceedings makes an assertion as part of its case that, directly or indirectly, puts the contents of privileged communications in issue, or necessarily opens them to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. The Court of Appeal observed that it does not matter that the privilege‑holder did not subjectively intend to lose the benefit of the privilege.[10]
[8] Poland v Hedley [2023] WASCA 69 (Poland v Hedley), [7]. The case citations are in the original, but note that the pinpoint reference of [7] is an error, it should be a reference to [72].
[9] Poland v Hedley, [75].
[10] Poland v Hedley, [75].
The underlining in para [31] is mine. The underlined words are, more or less, a direct quote from [75] of Poland v Hedley. That paragraph continues as follows:[11]
… This may occur where the privilege-holder puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate its claimed state of satisfaction.
[11] Commissioner of Taxation v Rio Tinto Ltd, [67].
In Poland v Hedley the Court of Appeal refers to the Full Court of the Federal Court's decision in Commissioner of Taxation v Rio Tinto Ltd.[12] At [52] of that decision, the Full Federal Court summarised various authorities by saying:
These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.
[12] Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; (2006) 229 ALR 304, [52], [54], [65] and [68].
At [65], the Full Federal Court said:
In any event, even if his Honour was correct in holding that, by the SFIC, the Commissioner raised an issue in the substantive proceeding as to his states of mind, this alone would not provide a proper basis for 'issue waiver'. As the previous examination of the authorities shows, the question is not whether the Commissioner has put his state of mind in issue but whether he has directly or indirectly put the contents of the otherwise privileged communications in issue in the litigation, either in making a claim or by way of defence.[13] Put another way, to adapt Allsop J's language in DSE, has the Commissioner (being the privilege holder) made an assertion as part of his or her case in the litigation that lays open the privileged documents to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege?
[13] Underlining added.
In the present case, BTAC relies upon a resolution of the 2025 Common Law Holders meeting to evidence that the Thalanyji people oppose the weirs proposed by the applicant.
I am not satisfied that by doing so, BTAC has put 'in issue' the contents of privileged legal advice given or 'necessarily' opens such advice 'to scrutiny'. Equally, I do not accept that by relying on the resolution, BTAC has 'impliedly made an assertion about the contents' of the advice given. It is the applicant, not BTAC, which seeks to make an issue of, for example, the content of the advice given. There is nothing inconsistent between BTAC's reliance on the resolution and its claim for privilege over the legal advice which preceded it.
For these reasons, I will also dismiss this aspect of the application for the production of documents.

Orders

The Tribunal orders:
1.The applicant's interim application for the further production of documents is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
19 SEPTEMBER 2025