Lake Torrens Overlap Proceedings

Case [2015] FCA 519

FEDERAL COURT OF AUSTRALIA

Lake Torrens Overlap Proceedings [2015] FCA 519

Citation: Lake Torrens Overlap Proceedings [2015] FCA 519
Parties: KOKATHA PEOPLE and ADNYAMATHANHA PEOPLE v STATE OF SOUTH AUSTRALIA, KELARAY PTY LTD AND STRAITS EXPLORATION (AUSTRALIA) PTY LTD
File number: SAD 90 of 2009
Judge: MANSFIELD J
Date of ruling: 26 May 2015
Legislation: Native Title Act 1993 (Cth)
Evidence Act 1995 (Cth)
Native Title Amendment Act 2009 (Cth)
Federal Court Rules 1979 (Cth)
Cases cited:

Starkey v State of South Australia [2014] FCA 924
Kokatha People v State of South Australia [2007] FCA 1057
Kokatha Native Title Claim, Barngarla Native Title Claim and Arabunna Peoples Native Title Claim v State of South Australia [2006] FCA 838
Apotex Pty Ltd v Les Laboratories Servier (No 5) (2011) 199 FCR 62
Yokagawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Lukies v Ripley (No 2) (1994) 35 NSWLR 283
Rabin v Mendoza & Co [1954] 1 All ER 247
Seven Networks Ltd v News Ltd (2005) 144 FCR 379
Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285
Cutts v Head [1984] Ch 290
Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512
Rush and Tompkins Ltd v Greater London Council [1989] AC 1280
Falland v Symbion Health Pty Ltd [2010] SASC 119
Date of hearing: 27 April 2015
Date of last submissions: 29 April 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 72
Counsel for the First Applicant: O Linde and B Lena
Solicitor for the First Applicant: South Australia Native Title Services
Counsel for the Second Applicant: D Billington
Solicitor for the Second Applicant Norman Waterhouse Lawyers
Counsel for the First Respondent: D O’Leary and P Tonkin
Solicitor for the First Respondent: Crown Solicitor, South Australia
Counsel for Kelaray Pty Ltd and Straits Exploration (Australia) Pty Ltd: S Ower and K Bickford
Solicitor for Kelaray Pty Ltd and Straits Exploration (Australia) Pty Ltd: McDonald Steed McGrath Lawyers
Counsel for SANTS (Intervenor): A Collett and K Kirsten
Solicitor for SANTS (Intervenor): South Australia Native Title Services

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 90 of 2009
BETWEEN:

KOKATHA PEOPLE
First Applicant

ADNYAMATHANHA PEOPLE
Second Applicant
AND:

STATE OF SOUTH AUSTRALIA
First Respondent

KELARAY PTY LTD AND STRAITS EXPLORATION (AUSTRALIA) PTY LTD
Second Respondent

JUDGE:

MANSFIELD J

DATE:

26 MAY 2015

PLACE:

ADELAIDE

REASONS FOR RULING

  1. On 1 May 2015, I gave a ruling on the status of certain documents which had been listed by one or other of the parties to this proceeding, or by South Australian Native Title Services Ltd (SANTS) as the native title representative body for South Australia under the Native Title Act 1993 (Cth) (the Act). That order was that the documents in dispute should be made available for inspection by the parties to this proceeding, subject to accommodating any particular restrictions…

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AGLC
Lake Torrens Overlap Proceedings [2015] FCA 519
Case
[2015] FCA 519
Decision Date

CaseChat Overview and Summary

The case of Lake Torrens Overlap Proceedings involves multiple parties, including SANTS, Kelaray, and Straits, all of which are entities involved in native title claims in South Australia. The dispute centres around the confidentiality and accessibility of certain documents related to native title claims, specifically the Cane Report and the Habner Report, and whether these documents should be subject to inspection by other parties in the litigation. The court was tasked with determining the legal status of these documents, particularly whether they are protected by legal professional privilege or some other form of confidentiality that precludes their inspection and use in the proceedings. The Federal Court of Australia was the judicial body that addressed these issues.

The primary legal issue before the court was whether the Cane Report and the Habner Report, which were produced in the context of native title mediations, are subject to legal professional privilege or some other confidentiality that would prevent their inspection by other parties in the litigation. SANTS argued that these reports should not be inspected as they were prepared in the context of mediation and were intended to be confidential to the parties involved in that mediation. Kelaray and Straits, on the other hand, argued that the reports should be accessible for inspection as they believed that any privilege attaching to the reports had been waived or was not applicable in the circumstances.

The court considered the evidence provided by the parties and determined that the Cane Report and the Habner Report were not subject to legal professional privilege or any other confidentiality that would prevent their inspection. The court reasoned that the reports were prepared in the context of mediation, which is a process that is not protected by legal professional privilege. Furthermore, the court found that the mediation reports were not intended to be confidential to the parties involved in the mediation and that any privilege that may have attached to the reports had been waived by the actions of the parties. Consequently, the court ruled that the reports were accessible for inspection by the parties in the litigation.

In conclusion, the court ordered that the Cane Report and the Habner Report, along with related documents, be made available for inspection by the parties in the Lake Torrens Overlap Proceedings. This decision was based on the court's finding that these documents were not protected by legal professional privilege or any other form of confidentiality that would prevent their inspection. The court's ruling ensures that all relevant information is available for consideration in the resolution of the native title claims in the Lake Torrens area.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The State has also indicated that, whilst it is willing to release for inspection the further documents which it has listed and which are in issue, they substantially refer to the Cane Report or the Habner Report, and therefore contain material which – if it is confidential and should not be inspected in relation to the Cane Report or the Habner Report – should also be treated as confidential on the same basis. I note that those documents are documents (44) Haines, Dr Timothy, Supplementary Expert Report for Barngarla, November 2009, Report for the Barngarla Native Title Claimants; (55A), Sackett, Lee, Response to Dr Scott Cane’s Wati and Wilyaru (June 2008); and (59) Sansom, Basil, Responsive Comments on a Report by Dr Scott Cane (May 2008). It is not necessary to refer in detail to those reports, as it was accepted by all parties that the question of their accessibility for inspection would stand or fall with the status of the Cane Report and the Habner Report.THE EVIDENCE I note that the evidence of SANTS in support of the claim for privilege from inspection, and other material relied upon, comprises the following:·affidavit of Karl Kirsten, affirmed 21 April 2015 and annexures;·interlocutory application on behalf of the Adnyamathanha people seeking inspection of the Cane Report made on 8 July 2013 in this claim before the Kokatha consent determination in Starkey and the supporting affidavit of Osker Linde sworn on 21 June 2013;·interlocutory application of Kelaray made on 12 November 2012 also in this proceeding before the Kokatha consent determination in Starkey;·the further affidavit of Osker Linde of 29 April 2015; ·the affidavit of Peter Tonkin of 16 July 2013; and ·in separate earlier proceedings involving the Kokatha people (SAD 6013 of 1998), the affidavits of Osker Linde of 27 August 2008, and of Andrew Beckwith of 20 June 2008. Kelaray and Straits relied upon the affidavit of Katie Bickford of 22 April 2015. There was some debate about the admissibility of parts of the affidavit of Karl Kirsten, but ultimately that was resolved by counsel for SANTS indicating that his client did not rely upon the paragraphs of the affidavit to which objection was taken as proving more than the documents to which they referred were themselves capable of proving. There was also some cross-examination permitted of Mr Linde in relation to one of his affidavits concerning the circumstances in which, he said, Dr Cane came to be briefed and retained to provide the Cane Report. I have no reason to question the reliability of the evidence of Mr Linde in that regard, and indeed ultimately counsel for Kelaray and Straits did not contend that I should reject that evidence. To the extent that it is relevant to the resolution of the issues which I was asked to address, it is referred to below. Finally, it is appropriate to note that the Lake Torrens area is part of earlier claims made variously by the Kokatha people (in some respects differently defined than as the present first applicant), by the Barngarla people, by the Arabana people, and by the Kuyani people. The detailed history of those earlier claims, all of which were either discontinued or dismissed, is set out in part in the judgment of Finn J in Kokatha People v State of South Australia [2007] FCA 1057, especially at [5]-[9], and earlier in Kokatha Native Title Claim, Barngarla Native Title Claim, andArabunna Peoples Native Title Claim v State of South Australia [2006] FCA 838 at [1]-[2]. Hence, the earlier references below to the Kokatha claim, the Barngarla claim and the Kuyani claim. Where I refer to the current Kokatha claim group, I refer to them discretely as the Kokatha claimants from circumstances where a differently defined group of Kokatha people have brought a claim under the Act, and I refer to the current Adnyamathanha claimants in that way to distinguish them from the particular Adnyamathanha people on whose behalf earlier Adnyamathanha claims had been made. THE CONTENTIONS

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The same submission is made with respect to the Habner Report. It is marked as a confidential document on its front cover and (it is there asserted) only to be made available to the persons directly involved with the NNTT mediation. SANTS, as the solicitor, says that it cannot waive that privilege attached to the Habner Report as it lies with the clients, that is “all the clients who provided information for these documents”.CONSIDERATION Certain matters are clear. On 1 July 2008, SANTS was recognised by the Commonwealth as a native title service provider, and given the functions of a native title representative body in respect of South Australia, pursuant to s 203FE of the Act. One of its functions is to support dispute resolution between competing claimants in relation to claims under the Act. In practical terms, it is the successor in title to the Aboriginal Legal Rights Movement Inc (ALRM). Division 3 of Part II of the Act deals with the functions and responsibilities of native title representative bodies, relevantly of course the ALRM and then SANTS. They have facilitation and assistance functions under s 203BB, to support native title applications, including under s 203BC consulting with those who may hold native title over land and waters within their respective areas of responsibility. They also have dispute resolution functions under s 203BF to assist in promoting agreement between indigenous people in their respective areas about the making of native title claims, including by mediation. Those functions were clearly undertaken by the ALRM and later SANTS in the processes referred to above, including by engaging senior counsel to advise and by engaging Dr Cane to provide the Cane Report: s 203BK. There are no provisions which dictate the status of information assembled, or used, by the ALRM or SANTS in the processes which it undertook. That is a matter which is to be determined in the particular circumstances, and on the particular facts. In about October 2005, Mr Linde, then acting as an employee of the ALRM, as part of the ALRM dispute resolution function, was involved in mediation conducted by the NNTT aimed at resolving overlaps between the Kokatha people and the Barngarla people as native title claim groups over an area which included Lake Torrens. At that time, s 86B of the Act required the Court to refer all claims to mediation by the NNTT unless it otherwise ordered. Section 94 (now broadly reflected in s 94D and ss 94K-94M) required that mediations be conducted in private and that documents produced to or for the purposes of a mediation should not be disclosed unless the parties agree. The NNTT was required to, and did, provide reports to the Court as to the outcome of its mediation. Mr Linde’s affidavit shows, consistently with the relevant NNTT mediation report to the Court, that an agreed outcome of the mediation, and therefore clearly not itself a confidential communication in the mediation, was that he would (as he did) brief Dr Habner and others (the authors of the Habner Report) to write a report on the area of the Kokatha/Barngarla overlap to endeavour to progress resolution of the overlaps between those two native title claim groups. The target recipients of the anticipated report were the two native title claim groups competing for that area and their legal advisers. He explained that to the authors of the Habner Report, and that further use of that report would then be at the discretion of either the Kokatha people or the Barngarla people as native title claim groups.