Harrington-Smith on behalf of the Wongatha People v State of

[2001] FCA 1893

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of The Wongatha People v State of
Western Australia [2001] FCA 1893

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998

LINDGREN J
13 DECEMBER 2001

SYDNEY (VIA VIDEO-LINK WITH PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6005 OF 1998

BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	13 DECEMBER 2001
WHERE MADE:	SYDNEY (VIA VIDEO-LINK WITH PERTH)

THE COURT ORDERS THAT:

1.        The motion brought by notice of motion filed on 26 November 2001 be dismissed.

2.The moving parties in that motion have liberty to file within 24 hours a notice of motion seeking an order that particular documents not be produced for inspection on the ground of legal professional privilege together with an affidavit in support of that ground in relation to the particular documents.

3.The nine experts referred to in par 1 of the notice of motion filed on 26 November 2001 produce to the Court all material in response to the subpoenas referred to in par 1 of the notice of motion by close of business on 14 December 2001.

4.Except for any documents identified in any notice of motion filed pursuant to par 2 above, access to the material produced to the Court pursuant to par 3 above is granted to counsel, instructing solicitors and expert witnesses engaged by the Group 6A respondents.

5.There be liberty to the parties to the motion to set aside subpoenas to apply generally upon 24 hours’ notice to the other parties to that motion and to the Court.

6.The moving parties pay the costs of the Group 6A respondents in opposing the motion to set aside subpoenas.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6005 OF 1998

BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS

JUDGE:	LINDGREN J
DATE:	13 DECEMBER 2001
PLACE:	SYDNEY (VIA VIDEO-LINK WITH PERTH)

REASONS FOR JUDGMENT

1. There is before the Court a motion, brought by notice of motion filed on 26 November 2001, to set aside certain subpoenas.  The moving parties on the motion (“the Moving Parties”) are, firstly, Ron Harrington-Smith and others on behalf of the Wongatha People;  secondly, the Wutha, Koara and Mantjintjarra Ngalia Indigenous Respondent Groups; and, thirdly, the individuals to whom the subpoenas are addressed.  Those individuals are nine expert witnesses retained by or on behalf of the applicants.  All the subpoenas are in respect of:

   “All notes, books, videotapes, audio tapes and other documents which are in your possession, custody or control containing or recording interviews, conversations or correspondence with, or your observations of, members of the native title claim group (that is, [one or more of the Wongatha, Mantjintjarra-Ngalia, Koara and Wutha peoples]) compiled between [two dates which varied as between the subpoenas].”

2. The subpoenas were issued on behalf of the Group 6A respondents.  Some were issued on 25 October 2001 and others were issued on 6 November 2001.  They were issued pursuant to leave which I granted under O 27 r 6 of the Federal Court Rules.  The granting of leave signifies nothing as to whether the subpoenas should be set aside.  Ordinarily, where no cause for concern appears, I grant leave for the subpoena to be issued, leaving it to any person interested to apply, after the subpoena has been served, for an order setting it aside or for relief in respect of the making of the subpoenaed documents available for inspection.

3. On 30 August 2000, I made directions for the preparation of the case for hearing, which is due to commence by way of opening addresses in Kalgoorlie on 19 February 2002, to be followed by evidence in Kalgoorlie and nearby places for the month of March.  Paragraph 31 of the orders of 30 August was as follows:

   “Upon the request of another party (‘requesting party’), a party shall allow the requesting party to inspect and, if requested, shall provide at the expense of the requesting party, copies of all documents referred to in the party’s expert reports which are unpublished or not reasonably accessible by the requesting party’s experts within 14 days of such a request, subject to the confidentiality restrictions in paragraph 32 below.” (I need not set out par 32.)

4. I need not recount all that has occurred since the subpoenas were issued and served.  Those issued on 25 October 2001 were returnable on 15 November 2001, while those issued on 6 November 2001 were returnable on 20 November 2001.  There is affidavit evidence before me of Marian Gay Wilson, a solicitor employed by Jackson McDonald, the then solicitors for the Group 6A respondents, on instructions from the Pastoralists & Graziers Association of Western Australia (Inc), sworn 29 November 2001.  Her affidavit testimony is to the effect that on 20 November 2001 she attended at the Federal Court when the applicants were represented by Mr Vincent of counsel who informed the Court that 90 per cent of the documents required to respond to the subpoenas had been collected and were at the Perth office of the Goldfields Land & Sea Council Aboriginal Corporation (“the GLSC”).

5. During the course of the hearing today, there has been some confusion as to whether documents at that office are now available for inspection.  The Moving Parties seek to establish in general terms that none of the documents covered by the subpoenas should be produced to the Court and that the subpoenas should be set aside in their entirety.  Discussion of the matter between the Bench and Ms Rayner, who appears for the Moving Parties, and Mr Thomson, who appears for the Group 6A respondents, suggests that if the parties co-operated it may be found that the area of disputation is quite narrow and relates only to a small number of documents.  Be this as it may, I must deal with the motion to set aside on the material before me. 

6. It is important to bear in mind two considerations of a general nature:  first, it is desirable that any documents to be inspected should be inspected sooner rather than later, in view of the date on which the final hearing is to commence; secondly, the Group 6A respondents, through Mr Thomson of counsel, have proffered an undertaking to the Court that pending further order of the Court, any materials produced to the Court in response to the subpoenas which the Group 6A respondents are permitted to inspect or copy, will be disclosed only to counsel, solicitors and expert witnesses engaged by the Group 6A respondents.

7. The Moving Parties submit that the subpoenas should be set aside on the basis of affidavits by three of the expert witnesses, Daniel Vachon, Consultant Anthropologist, Kim Barber, Consultant Anthropologist and Sandra Pannell, Consultant Anthropologist.  Except for par 11 below, which does not appear in the Barber affidavit, all three affidavits contain material generally to the effect of the following paragraphs in the Vachon affidavit:

   “9.The terms of the subpoena raise a number of issues which, among other things, infringe upon my professional obligations and ethical commitments as an anthropologist and Fellow of the Australian Anthropological Society, such obligations and commitments being important for an anthropologist’s professional credibility and for the ability of anthropology as a profession to continue to operate.  A copy of the Society’s Code of Ethics is attached and marked ....

   10.Those issues are as follows:

   a.My field note books contain notes derived from interviews with people who in some cases are not part of the Wongatha or Mantjintjarra Ngalia native title claim groups, and therefore may not fall within the terms of the subpoena.

   b.There is material in my field note books that I recorded in my dealings with a number of senior men from the Wongatha and Mantjintjarra Ngalia claim groups that they indicated was part of the corpus of knowledge that they regarded as secret and sacred.  This information was conveyed to me with the understanding that this status would be recognised and respected.

   c.The interviews I conducted with Wongatha and Mantjintjarra Ngalia claimants were undertaken as confidential exchanges between myself and the interviewee.  There was an understanding that information I recorded would not intentionally be disclosed to a third party without the express consent of the interviewee.

   d.There is information in my field note books which is of a culturally and socially sensitive nature, referring as it does to deceased individuals or to liaisons which are not widely known.  It could be seriously disruptive to social relations in the aboriginal community to have this information revealed.

   11.In the course of conducting research on these two claims, I would seek further clarification about information recorded in my notebooks with claimants, including the persons who gave the information initially.  However, at no time did I seek to establish that what I wrote in my notebooks during an interview with any claimant was a complete and true record of what that person told me.

   12.The material contained in the notebooks are my recordings of matters relating to the claim.  Therefore anybody who attempts to read them without knowing the context in which they were written, nor has an understanding of the way in which I construct my notes is likely to misunderstand or misconstrue what is documented in those notes.”

8. As well, the Moving Parties rely on an affidavit of Katharine Mary O’Bryan, a solicitor employed by the GLSC, sworn 26 November 2001.  Ms O’Bryan states that the GLSC, on behalf of the Wongatha claimant group and the Wutha, Koara and Mantjintjarra Ngalia claimant groups, retained the experts to prepare expert reports for them in relation to the claim made in this proceeding;  that the experts were instructed to prepare their reports on the basis of this Court’s guidelines for the preparation of expert reports (cf Federal Court of Australia Practice Direction, “Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia”, 15 September 1998); and that the experts’ reports have in fact been filed and served.  The grounds relied upon for setting aside the subpoenas are set out in par 24 of Ms O'Bryan’s affidavit as follows:

   “(a)the process of production by subpoena is an abuse of process as it substantially duplicates the discovery process, which is already under way or could be instituted;

   (b)it is inappropriate to obtain experts’ documents by way of subpoena at this stage of the proceedings, especially given that non-indigenous respondent expert reports have not as yet been filed;

   (c)There are already appropriate orders in place relating to inspection, including protection, of expert documentation;

   (d)There are serious issues of privilege which have not been addressed within the subpoena process;

   (e)Experts for whom the GLSC acts in this matter have expressed serious concerns about professional ethical issues arising from the subpoenas, especially having regard to their breadth, giving rise to public interest immunity considerations.”

9. In relation to (a), I note that there has been no order for discovery and that the documents covered by the régime established by par 31 of my orders of 30 August 2000 are less extensive than those covered by the subpoenas.  Paragraph 31 related to production of documents referred to in expert reports, but the subpoenas relate to, for example, notes made by an expert whether they are referred to in an expert’s report or not.  The issue of the subpoenas is not an abuse of process.

10. In relation to (b), I do not think it inappropriate for the Group 6A respondents to attempt to obtain at this stage of the proceeding, the documents referred to in the subpoenas.  In fact it seems to me appropriate that documents generally of the kind described in the subpoenas, should, in the absence of any countervailing consideration, be available so that the legal representatives of the Group 6A respondents will have the opportunity to prepare for cross-examination.

11. Ground (c) referred to above is not made out:  par 31 of the orders of 30 August 2000 was not intended to cover the entire field of documents which the Group 6A respondents were entitled to have produced to the Court.

12. Ground (d) refers in general terms to “serious issues of privilege”.  I will return to the privilege question below.

13. Ground (e) refers to “serious concerns about professional ethical issues arising from the subpoenas . . . giving rise to public interest immunity considerations”.  The affidavits of the three experts are expressed in very general terms.  In substance they seek to establish that what the experts were told by persons whom they interviewed is confidential.  But the confidential relation between a professional person and a client or other individual interviewed by that professional person is not in itself a ground on which a subpoena for production of a record of the communication will be set aside.  It may be a ground on which a court may think fit to limit the communication to others of the contents of a document produced pursuant to the subpoena, but that is another matter.  Moreover, the very general terms of the three affidavits leave me in doubt as to precisely what was the arrangement, if any, of confidentiality between the expert and the persons to whom the expert spoke. 

14. But more important is the fact that the Australian Anthropological Society’s Code of Ethics states in clause 3.3 as follows:

    “Members should explain to those studied that, despite every effort anthropologists may make to preserve the anonymity or privacy of individuals or the confidential status of information, there may arise legal contexts where those efforts fail.”

    I presume that the three deponent anthropologists did explain to those studied that which is referred to in clause 3.3.

15. Clause 3.8 of the Code states:

    “Members should not knowingly or avoidably allow information gained on a basis of the trust and cooperation of those studied to be used against their legitimate interests by hostile third parties.”

    In their affidavits the experts Vachon, Barber and Pannell have apparently put to the Court all that can be said by them as to why the documents subpoenaed should not be produced and so they are not “knowingly or avoidably” allowing information gained by them to be used against the interests of those studied. 

16. I turn now to par (d) of Ms O’Bryan’s list set out earlier – the question of privilege.  The Moving Parties provided a written submission this afternoon in which they state simply:

    “Each of the experts, and the GLSC, claim legal professional privilege in respect of the materials sought by the Group 6A Respondents.”

    It is not clear to me that the three experts in their affidavits make any such claim: the thrust of the affidavits is to assert “professional obligations and ethical commitments as an anthropologist and Fellow of the Australian Anthropological Society”.  (In the Barber affidavit, the reference is to “member of both the West Australian and the Australian Anthropological Societies”.)  Legal professional privilege in relation to all the documents the subject of the subpoenas is not established, as it were by a side wind, as a result of generalised testimony of the kind found in the experts’ affidavits.

17. It is conceivable, I suppose, that there may be particular documents in respect of which a claim of legal professional privilege can be sustained.  I think the appropriate course is to dismiss the motion to set aside, but to reserve liberty to the Moving Parties to apply by a fresh motion in respect of particular documents in relation to which they say legal professional privilege applies.

18. That notice of motion, if it is to be filed at all, should be filed within the next 24 hours and be made returnable early next week, and in the meanwhile it should be open to the Group 6A respondents to proceed with inspection of the documents referred to in the subpoenas. What would be necessary if a claim of legal professional privilege is to be made is for the Moving Parties to identify with alacrity the particular documents in respect of which they wish to seek to sustain the claim and to file a notice of motion supported by affidavit within the next 24 hours in relation to those documents.  I do emphasise that on the evidence before me, no such claim is sustainable.

19. For the above reasons, the Court will order that the motion brought by notice of motion filed on 26 November 2001 be dismissed, and that the Moving Parties have liberty to file within 24 hours a notice of motion seeking an order that particular documents not be produced for inspection on the ground of legal professional privilege, together with an affidavit or affidavits supporting the existence of legal professional privilege in respect of that document or those documents.

    [There followed discussion as to further orders to be made.]

20. I will make orders generally to the effect of those Mr Thomson seeks.  The documents must be produced to the Court by close of business tomorrow, and there will be available for inspection by counsel and solicitors for, and expert witnesses of, the Group 6A respondents, all documents so produced with the exception of any particular documents which are the subject of a notice of motion filed by the Moving Parties.  So it is really at the stage of inspection that the exception will be made rather than at the antecedent stage of production to the Court in answer to the subpoena.  As to costs, I think it is appropriate that the Moving Parties pay the costs of the Group 6A respondents of the motion to set aside.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 January 2002

Counsel for the Moving Parties on the motion:	Ms M Rayner
Solicitor for the Moving Parties on the motion:	Ms K M O’Bryan, solicitor, of the Goldfields Land & Sea Council Aboriginal Corporation
Counsel for the Group 6A Respondents:	Mr J A Thomson
Solicitors for the Group 6A Respondents:	Blake Dawson Waldron
Date of Hearing:	13 December 2001
Date of Judgment:	13 December 2001