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Gardiner v Attorney-General

Gardiner v Attorney-General

Case [2020] VSC 224 1 May 2020

Jurisdiction

Discovery & Disclosure

Public Interest Immunity

Civil Litigation & Procedure

Public Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02090

MARGARET GARDINER, VINCENT PETERS, ANNETTE XIBERRAS and ELIZABETH THORPE	Plaintiffs
v
ATTORNEY-GENERAL OF THE STATE OF VICTORIA	First Defendant
and
TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION)	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2020
DATE OF JUDGMENT:	1 May 2020
CASE MAY BE CITED AS:	Gardiner v Attorney-General
MEDIUM NEUTRAL CITATION:	[2020] VSC 224

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PRACTICE AND PROCEDURE – Notice to produce – Plaintiffs seeking production of ‘Part A threshold statement’ provided by second defendant to first defendant to initiate negotiations under Traditional Owner Settlement Act 2010 (Vic) – Second defendant claimed document subject to public interest immunity – Whether public interest immunity attaches to information about Aboriginal culture and traditions – Whether document provided and received in confidence – Whether disclosure would impair future performance of governmental functions under Traditional Owner Settlement Act 2010 (Vic) – Document not subject to public interest immunity – Consideration of appropriate confidentiality regime – Supreme Court (General Civil Procedure) Rules2015 (Vic), r 35.08 – Evidence Act 2010 (Vic), s 130.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Gunst QC with Mr T Smyth	Holding Redlich
For the First Defendant	Mr AC Neal QC with Ms EA Bennett	Matthew Hocking, Acting Victorian Government Solicitor
For the Second Defendant	Mr MLL Albert	First Nations Legal and Research Service

HER HONOUR:

On 26 October 2018, the Attorney-General for the State of Victoria entered into the Taungurung Recognition and Settlement Agreement (RSA), under s 4 of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act). The RSA was entered into with the Taungurung Clans Aboriginal Corporation, now known as the Taungurung Land and Waters Council. It is part of a settlement package that includes several other agreements, including the Taungurung Indigenous Land Use Agreement (ILUA), entered into under the Native Title Act 1993 (Cth).

The RSA recognises the traditional owner rights of the Taungurung, the traditional owner group represented by the Council, in relation to public land in the area covered by the agreement. Broadly speaking, the agreement covers an area of Victoria including Mt Buller, Lake Eildon, the Upper Goulburn Valley, and parts of the Alpine, Lake Eildon, and Buffalo national parks.[1] It extends west to the Campaspe River and Lake Eppalock, north to the Ovens River near Wangaratta, and borders Wurundjeri country to the south.
[1]A detailed description of the agreement area is set out in Schedule 1 of the RSA.

The settlement package is yet to be fully implemented. If and when that occurs, it will confer significant benefits on the Taungurung and its members. In particular, if the ILUA is registered, it will bind all persons holding native title in relation to any of the land or waters in the agreement area, who are not already parties to the agreement. Its effect will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gardiner v Attorney-General

Details

AGLC: Gardiner v Attorney-General [2020] VSC 224
Case: [2020] VSC 224
Decision Date: 1 May 2020

CaseChat Overview and Summary

Gardiner v Attorney-General was a case heard in the Supreme Court of Victoria, where the plaintiffs sought the production of a 'Part A threshold statement' provided by the second defendant to the first defendant. This document was intended to initiate negotiations under the Traditional Owner Settlement Act 2010 (Vic). The second defendant argued that the document was subject to public interest immunity, claiming it contained sensitive information about Aboriginal culture and traditions. The court needed to determine whether the public interest immunity applied to this information, whether the document was provided and received in confidence, and whether its disclosure would impair future governmental functions under the Traditional Owner Settlement Act 2010 (Vic).

The central legal issues revolved around the application of public interest immunity to information concerning Aboriginal culture and traditions and whether the document was provided and received in strict confidence. The court had to balance the public interest in maintaining the confidentiality of such information against the plaintiffs' right to access the document. Additionally, the court needed to consider whether disclosing the document would hinder the government's ability to perform its functions under the Act.

The court found that the public interest immunity did not attach to the information in question. It reasoned that the document did not pertain to matters of national security or significant public interest that would warrant withholding such information. The court also determined that the document was not provided and received in confidence, as the plaintiffs could not demonstrate that the information was intended to be kept secret. Furthermore, the court concluded that the disclosure of the document would not impair the government's future performance of its functions under the Traditional Owner Settlement Act 2010 (Vic). The court then considered the appropriate confidentiality regime to protect the sensitive information contained in the document while allowing its production for the purposes of the litigation.

The court ordered that the document be produced to the plaintiffs, subject to a confidentiality regime that would protect the sensitive information contained within it. This decision allowed the plaintiffs to access the document they sought while ensuring that the confidential aspects of the information were appropriately safeguarded.

Orders