Lawson v Minister for Environment and Water (No 2)

[2022] NSWLEC 133

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lawson v Minister for Environment and Water (No 2) [2022] NSWLEC 133

Hearing dates:

7 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 3

Before:

Moore J

Decision:

Orders at [84] and [85]

Catchwords:

SUBPOENA ‑ Applicant issues subpoena to the Third Respondent ‑Third Respondent’s Notice of Motion to have subpoena set aside in part - Third Respondent’s subpoena challenge partially resolved by agreement ‑ challenge remained as to whether two anthropological reports protected from production by legal privilege - report known as “Martin report” not protected - production to be required ‑ consideration of potential confidentiality regime required - report known as “Lum report” protected - production not to be required

COSTS - equality in outcomes of Third Respondent’s Notice of Motion - appropriate that there be no order for costs of Third Respondent’s Notice of Motion

Legislation Cited:

Evidence Act 1995 (NSW), ss 118 and 133

Native title Act 1993 (Cwth), ss 82(2) and 87A

Uniform Civil Procedure Rules 2005, rr 1.8 and 6.24

Cases Cited:

789TEN v Westpac Banking Corporation Ltd [2005] NSWSC 123
Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547
Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971
Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604
Buzzle Operations v Apple Computer Australia (2009) 74 NSWLR 469; [2009] NSWSC 225
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
Lawson v Minister for Environment and Water [2022] NSWLEC 122
Mann v Carnell (1999) 201 CLR 1
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
State Bank of South Australia v Smoothdale No 2 Ltd (1995) 64 SARS 224

Category:

Procedural rulings

Parties:

Ms Dorothy Lawson (Applicant)
Minister for Environment and Water (First Respondent)
State of New South Wales (Second Respondent)
Barkandji Native title Group Aboriginal Corporation (Third Respondent)

Representation:

Counsel:
Mr D Yarrow, barrister (Applicant)
Mr W Ambrose, barrister (First Respondent)
Mr J Waters SC (Second Respondent)
Ms C Taggart, barrister (Third Respondent)

Solicitors:
Gilbert & Tobin (Applicant)
Crown Solicitors Office SA (First Respondent)
Crown Solicitors Office NSW (Second Respondent)
Barkandji Native title Group Aboriginal Corporation (Third Respondent)

File Number(s):

316612 of 2021

Publication restriction:

No

TABLE OF CONTENTS

These proceedings

Introduction

The contested subpoena

The subpoena challenge hearing

Introduction

The current nature of Ms Lawson's claim

Relevant statutory provisions

Apparent relevance

The Martin report

The report by Dr Lum

Introduction

The submissions for the Third Respondent

The submissions for Ms Lawson

Consideration

Outcomes

Directions

Orders

These proceedings

Introduction

1. Ms Lawson has an undetermined claim for compensation arising out of the resumption, in 1922, of land in south-western New South Wales. The land was resumed for the purposes of the creation of Lake Victoria. There has been considerable litigation concerning Ms Lawson's claim.

2. A number of judicial decisions have been given in relation to her claim. The most recent was given by me in Lawson v Minister for Environment and Water [2022] NSWLEC 122, a decision in which I joined the Barkandji Native title Group Aboriginal Corporation (the Corporation) as the Third Respondent to the proceedings. Citations for the previous judicial determinations concerning Ms Lawson's claim are set out at [1] and [2] of my joinder judgment. They do not need to be repeated here.

3. A substantive hearing (and a pre‑hearing timetable) has been set down to enable the process of determining Ms Lawson's claim to proceed. That next stage is a hearing of eight days, the first two of which are to be held on site at Lake Victoria; then the following three days are to be held at Wentworth Court House in south‑western New South Wales; and, finally for this phase, a further three days are to be heard in Sydney the following week. This phase of the proceedings will address relevant anthropological and cultural issues requiring consideration arising out of Ms Lawson's claim.

4. Depending on the outcome of this phase, a second (and final) phase may be necessary to determine valuation and quantification of compensation issues.

The contested subpoena

5. On 13 July 2022, a subpoena was issued on behalf of Ms Lawson to the (now) Third Respondent - a prescribed body corporate established for the purposes of holding on trust the native title rights on behalf of the native title holders whose native title rights were recognised in 2015 and 2017 by determinations of the Federal Court of Australia (the Federal Court).

6. For present purposes, it is to be noted that, on 25 July 2022, the Third Respondent filed a Notice of Motion seeking to set aside a number of elements of the subpoena issued to it on behalf of Ms Lawson. Determination of that Notice of Motion was assigned to me by the Chief Judge, as the hearing of the next substantive phase of Ms Lawson's claim, in February 2023, has been assigned to me.

7. As a consequence, the Notice of Motion to set aside portions of the subpoena was set down for hearing before me on 8 September 2022. Helpful submissions concerning that motion were filed by Ms Taggart, counsel for the Corporation, and Mr Yarrow, counsel for Ms Lawson. As a consequence of my pre‑hearing reading of those submissions, it became necessary for me to determine if it was necessary that the Corporation be joined as the Third Respondent to the proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (the UCPR). It is not necessary to reproduce this provision. As earlier noted at [2], I subsequently did determine that the Corporation should be joined as the Third Respondent to Ms Lawson’s proceedings.

8. The two contested documents nominated in Ms Lawson’s subpoena are:

1. Report for the Paakantji Claimants: Wentworth Native title claim NC95/10, Sarah Martin, for NSWALC, May 1999 (the Martin report); and

2. Anthropological Report of Dr Ken Lum: Expert Anthropological Report dated 5 November 2013 (the Lum report).

The subpoena challenge hearing

Introduction

9. A hearing of the Third Respondent’s subpoena challenge was held on 7 November 2022. The hearing was held by audio‑visual link because of the wide geographic spread of the location of counsel appearing before me. The Third Respondent was represented by Ms C Taggart, barrister, located in Perth. Ms Lawson was represented by Mr D Yarrow, barrister, located in Melbourne. The legal representatives of the First and Second Respondents were excused from participating in the subpoena challenge hearing as they did not wish to make submissions on the contested subpoena issues.

10. Many of the issues concerning the subpoena were resolved prior to this hearing. The remaining matters in dispute were whether two anthropological reports (known as the Martin report and the Lum report) were subject to a valid claim by the Third Respondent as being protected from being provided to Ms Lawson as they were subject to legal professional privilege. I should acknowledge, with gratitude, the comprehensive and helpful submissions, both written and oral, which I have received on the remaining contested subpoena issues.

11. The subpoena challenge hearing was conducted efficiently, taking only some two hours to be completed. At the conclusion of the reply submissions for the Third Respondent, I reserved my decision.

The current nature of Ms Lawson's claim

12. After the various earlier proceedings listed at [2], Ms Lawson's claim is now advanced on two separate bases. The first basis is, in short, a claim for compensation for the extinguishment of such native title rights over Lake Victoria as may have been held by Ms Lawson's maternal grandmother as at 1922. The second basis for her claim is that the compulsory acquisition of the land at Lake Victoria involved the acquisition of possessory title held in a similar fashion and transmitted to Ms Lawson. It is not necessary to explore either of these claims in any greater detail for the purposes of this decision.

13. It is, however, appropriate to note that native title determinations of 2015 and 2017 were made by the Federal Court concerning the native title rights of the Barkandji and Malyangapa Peoples concerning an extensive area of south‑western New South Wales, including land which surrounds Lake Victoria (but does not include Lake Victoria because the 1922 acquisition extinguished any native title which might have existed at that time).

14. The 2015 determination and, particularly, elements of the 2013 process in the preparatory stages prior to that determination, are relevant to this subpoena challenge.

Relevant statutory provisions

15. Relevant statutory provisions are ss 118 and 133 of the Evidence Act 1995 (the Evidence Act). The first provision is in the following terms:

118   Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a)   …, or

(b)   ..., or

(c)   the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

16. The second provision is in the following terms:

133   Court may inspect etc documents

If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

17. One further provision of the UCPR is to be noted. This is r 1.8, a rule in the following terms:

1.8   Determination of questions arising under these rules

The court may determine any question arising under these rules (including any question of privilege) and, for that purpose—

(a)   may inspect any document in relation to which such a question arises, and

(b)   …

Apparent relevance

18. I may inspect produced documents subject to privilege claims: s 133 of the Evidence Act and r 1.8 of the UCPR. I have carefully read the Lum report and the Martin report. I am satisfied that, in the context of the test of apparent relevance as discussed by Bell P (as the Chief Justice then was) in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, in the final sentence of [65], each of the documents would, at the necessary broad level of relevance, be appropriate to be required to be produced to Ms Lawson's legal representatives. During the course of the hearing concerning the subpoena, Ms Taggart accepted that this was the position.

The Martin report

19. At the commencement of the hearing of the Third Respondent's Notice of Motion, I indicated to Ms Taggart that the only material in the Martin report which provided any indication as to the basis upon which it had been commissioned was set out in Section 1.1 of the document itself. I indicated that my reading of that section did not, in my tentative view, provide any basis upon which I could conclude that the document had been prepared for the dominant purpose of providing legal advice with respect to the native title claim referenced in that section.

20. I invited her to address, specifically, how she proposed I should read that section as leading to the conclusion that the Martin report was, in fact, prepared for the dominant purpose of providing legal advice to those representing the native title claimants in the nominated claim.

21. She did so, proposing that the language of the section itself should lead me to drawing the necessary inference that, because it referred to a native title claim in a fashion which referenced legal proceedings, I should be satisfied that the dominant purpose for which the report had been prepared was for the provision of legal advice with respect to that claim.

22. In this context, it is now appropriate to reproduce the terms of that introductory section to the Martin report, a section which, in terms, does not disclose any matters of detail which might otherwise potentially have provided a basis for the claim of legal professional privilege. Section 1.1 of the Martin report is in the following terms:

SECTION 1. REPORT BACKGROUND

1.1 ORIGIN OF THE REPORT.

This report was commissioned by the NSW Aboriginal Land Council Native title Unit to be used as documentation of the Paakantji Native title claim NC95/10 located at Wentworth, South Western NSW. The two applicants Ray Lawson and Irene (Renie) Mitchell have placed this application on behalf of the Paakantji people, and in particular the sub-group of Paakantji called in this report the Pooncarie Paakantji, who have the closest connection with this land.

I was also requested to write the report by the Paakantji Elders Council in recognition of my long association with the Paakantji people and previous research into their oral history, family history and genealogies, cultural traditions as well as the archaeology of the area (see C.V. in Appendix 11.2).

23. It is also to be noted that an undated confidentiality agreement entered into on behalf of the NSW Crown Solicitor concerning the Martin report is in evidence before me as Annexure ADC-6 to the affidavit of Mr Alexander Chalmers, Deputy Principal Solicitor of the Third Respondent’s legal representatives. That affidavit is dated 25 July 2022.

24. However, whilst the confidentiality agreement established a regime pursuant to which the New South Wales Government's legal representatives could have access to the Martin report, I do not consider that that agreement provides any satisfactory evidence as to why the Martin report had been commissioned.

25. There is certainly nothing in the document which could be regarded as revealing anything additional to the matters contained in Section 1.1 of the Martin report earlier set out.

26. Despite Ms Taggart's written and oral submissions as to matters of general principle and, specifically, concerning the Martin report, I indicated to her, after hearing her further, I was not satisfied that the Martin report was prepared for a purpose which would permit legal professional privilege pursuant to s 118 of the Evidence Act attaching to it.

27. Ms Taggart indicated that, if I was not satisfied that the Martin report was immune from being released to Ms Lawson's legal representatives because it was protected by legal professional privilege, the Third Respondent did not seek to advance any alternative basis upon which its provision to Ms Lawson's legal representatives could be advanced.

28. I therefore proposed that the legal representatives of the Third Respondent and those of Ms Lawson should discuss the question of whether any restrictive access regime should be attached to orders releasing the Martin report. I stood over the question of the potential for such a regime to the date when this judgment was to be delivered. In this context, I note that Mr Waters SC, appearing for the First Respondent, had indicated on an earlier occasion that, if either of the reports were to be released to Ms Lawson's legal representatives, access should also be granted to the First Respondent. The same position was adopted, on that occasion, for the Second Respondent.

29. The orders disposing of the Third Respondent's Notice of Motion reflect the outcome of the access regime discussions between the legal representatives of the Third Respondent and Ms Lawson and the First and Second Respondents.

The report by Dr Lum

Introduction

30. As with the Martin report, I have carefully read the version of the report by Dr Lum (dated 5 November 2013) which has been produced to the Court pursuant to the subpoena issued to the Third Respondent by Ms Lawson's legal representatives. As a consequence of the claim for legal professional privilege advanced on behalf of the Third Respondent, access to the report by Dr Lum (as with the Martin report) has been restricted to me pending my determination of the elements of the Third Respondent's Notice of Motion seeking to have the subpoena set aside with respect to the Lum and Martin reports.

31. In this context, it is to be observed that the instructions given to Dr Lum by the body then representing the native title claimants in the Federal Court proceedings, for which Dr Lum was commissioned to prepare his report, were set out in Appendix Two to the report which has been produced pursuant to the subpoena. The terms of the relevant element of his instructions can be reproduced for the purposes of this decision without compromising any claimed privilege attaching to the Lum report. The relevant elements of Dr Lum's instructions were in the following terms:

Appendix Two: Consultant's Brief

Confidentiality and Legal Privilege

15   This document is confidential and may be subject to legal privilege.

16   The consultant's fieldwork and research, and subsequent report, are being carried out in preparation and for the dominant purpose of prosecuting native title proceedings in the Federal Court of Australia. The report will be used by the Principal Solicitor of the Legal Practice funded by NTSCORP to provide the clients (those who hold or may hold native title in the Claim Area (see map at Appendix 3)) with legal advice in relation to the conduct of the native title proceedings and may be used by the clients as evidence in native title proceedings.

17   All materials produced by the consultant in relation to this matter are confidential between the legal representative and the clients and should not be disclosed to any third party without prior consent from the clients and the Principal Solicitor of the legal practice funded by NTSCORP. The consultant is asked to note that it is up to the clients, not the legal practice funded by NTSCORP or NTSCORP, to determine whether or not these materials should be released to a third party and it is crucial that the legal practice funded by NTSCORP or NTSCORP does not make this decision without first seeking instructions from the clients. Furthermore, the materials produced by the consultant in the course of producing the anthropological report are subject to legal professional privilege.

18   Whilst undertaking field work and research it is important that the consultant informs the clients that the information they are providing is being provided in the course of prosecuting a native title application in the Federal Court.

19   The consultant's duty of confidentiality does not extend to information which: (a) is or becomes public knowledge other than by breach of this duty; and (b) is public knowledge before the commencement of work under this brief.

32. As can be seen, those instructions expressly nominate, in terms at paragraph 16, that the purpose for which Dr Lum was commissioned was to obtain material for the purpose of preparation, by the legal representatives of those native title claimants, of legal advice to those claimants.

33. On this basis, the report by Dr Lum is, prima facie, subject to legal professional privilege as provided by s 118 of the Evidence Act.

34. As a consequence, what remains to be considered for present purposes is whether or not that which took place later in 2013 (Dr Lum's original report being finalised in March 2013 but the version sought by the subpoena to the Third Respondent being finalised on 5 November 2013) effected a subsequent waiver of the privilege. Mr Yarrow proposes that waiver arises as a consequence of the making available of the Lum report, on a limited basis, pursuant to orders made by Jagot J of the Federal Court (as her Honour then was), by orders dated 27 September and 30 October 2013. It is appropriate, at this point, to set out the relevant elements of those two sets of orders made by her Honour in those Federal Court proceedings. Her Honour's orders of 27 September 2013 included, relevantly:

1   Leave is granted for the applicant to substitute Dr Ken Lum's report filed on 17 April 2013 with a further report by Dr Ken Lum to be filed and served on or before 31 October 2013.

35. Her Honour's orders of 30 October 2013 included, relevantly:

1   Service of:

(a)   …; and

(b)   materials to be filed pursuant to order 4 of the orders made on 7 June 2013 or pursuant to orders 1, 2 or 3 of the orders made on 27 September 2013 ‑

on Attorney General of New South Wales, Stanley Wine Company Co Pty Ltd, Wentworth Shire Council and NSW Farmers Association (“the active parties”), be sufficient service.

2   Subject to further order, the active parties (including their experts and legal advisers) only have access to the expert report of Dr Ken Lum which is to be filed and served pursuant to order 1 of the orders made on 27 September 2013.

36. Dr Lum’s instructions also included, under the heading “Anthropological Services”, the following at paragraphs 7 and 10:

7   These research services will be in the form of anthropological fieldwork (as necessary), research and report preparation. In preparing this report, the consultant is asked to draw upon and make such use of his Connection Report dated 25 January 2013 and filed with the Court on 17 April 2013 as he deems appropriate. The consultant is not asked to prepare a supplementary report to that report; rather, he is asked to produce a single report that is responsive to these instructions.

10   The consultant's expert opinion concerning the questions in matters set out in sections A and B, contained in a report, may form evidence to be used in a contested Federal Court hearing.

37. The first of the above paragraphs demonstrates, in terms, that the document that was filed with the Federal Court pursuant to the September and October orders set out above was a separate document produced subject to Dr Lum’s instructions and not, in terms, a supplementary report to the earlier document.

38. In addition, paragraph 10 makes it clear that potential use of the document as evidence was contingent. In that fashion, that element of the instructions cannot derogate from the dominant purpose established by paragraph 16 of Dr Lum’s instructions, as earlier set out as made, addressing this further report to be prepared by him.

The submissions for the Third Respondent

39. As earlier noted, Ms Taggart provided written submissions in support of the Third Respondent's claim of privilege for the Lum report. In paragraph 12 of her written outline of submissions, she said, with respect to the Lum report:

12 … At the time of filing that report, the State and the Barkandji Applicant had reached agreement that the Barkandji and Malyangapa People’s proceedings could be settled by way of consent determination recognising Barkandji and Malyangapa People possessed native title rights and interests in the claim area. Notwithstanding that matter, the Barkandji Applicant was required to file the Lum report. Only specified parties could have access (without any further right to use or disseminate) unless and until further order of the Court was made. Those orders were made upon the filing of an Interlocutory Application and submissions by the Barkandji Applicant giving the Court notice of cultural and customary concerns in relation to the content of the Lum report pursuant to s 82(2) of the Native title Act.

40. In this context, it is appropriate to set out the terms of s 82(2) of the Native title Act 1993 (Cwth) cited in the above extract from Ms Taggart's written submissions. This provision, in a section of the Act headed Federal Court’s way of operating, is in the following terms:

Concerns of Aboriginal peoples and Torres Strait Islanders.

2   In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

41. With respect to the elements of the instructions Appendix Two to the Lum report as earlier set out, Ms Taggart’s written submissions noted the duality of functions of the document, as demonstrated by the matters earlier extracted:

1. First, that there was the explicit purpose that the Lum report was to be prepared for the purpose of providing legal advice by the Third Respondent's legal representatives; and

2. Second, there was a subsidiary (and contingent) purpose that the report might be used in the event of a contested hearing concerning that native title claim.

42. With respect to this duality of purpose, Ms Taggart's written submissions, at paragraph 24, were in the following terms:

24   … The receipt of the report was necessary to enable relevant provision of legal advice, including as to the conduct of the proceeding. It was also necessary in the event that the Barkandji Applicant sought to rely upon Dr Lum’s evidence at any contested hearing.

43. Ms Taggart's written submissions then addressed the orders made by the Federal Court on 27 September and 30 October 2013. She wrote, at paragraphs 26 and 27:

26.   Those orders, read as a whole, are significant: the Barkandji Applicant had been required to file the Lum report in the event that it sought to rely upon the evidence of Dr Lum at any contested hearing. It had not made a decision about that matter at the time the terms of reference were provided to Dr Lum. Subsequently, the Barkandji Applicant sought specific orders that:

26.1.   limited which of the parties to the Barkandji proceeding were required or entitled to be served with the report; and

26.2.   provided that, subject to further order, those active parties were only entitled to access the report and were required to treat any requested source document as confidential.

27.   Having successfully obtained those orders, the Barkandji Applicant filed the Lum report. In those circumstances it is apparent that, in filing the Lum report, the Barkandji Applicant did not intend to waive privilege at large and did not act in a way that was inconsistent with an assertion of partial waiver.

44. She submitted, at paragraph 28:

28   In this regard, even where there is a voluntary disclosure of a privileged communication to a third party, for a limited and specific purpose, that disclosure will not necessarily amount to wholesale waiver of privilege to the world at large (citing Mann v Carnell (1999) 201 CLR 1 at [30] to [34]).

45. During the course of her oral submissions, she noted, in this context, that the Lum report had not been read in any formal sense; it had not been tendered in any proceedings; and it had not become part of any evidence in the proceedings which led to the 2015 Federal Court native title determination.

46. She then, in her written submissions (also reflected in her oral submissions on this point), addressed what is, effectively, the critical point where her submissions depart, diametrically, from the position advanced (as later discussed) by Mr Yarrow on behalf of Ms Lawson. With respect to the proposition in paragraph 28 of her written submissions set out above, she submitted, in paragraph 29, relevantly:

29   That can include where documents are filed, and served, but not tendered or read in open court (citing State Bank of South Australia v Smoothdale No 2 Ltd (1995) 64 SARS 224) (Smoothdale). …

47. It will later be necessary to consider the relevant elements of this decision.

48. Ms Taggart next addressed the decision of the Full Federal Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 (Australian Competition and Consumer Commission). She did so in anticipation (it seems to me) of the likelihood that Mr Yarrow would (as he did) rely on this decision in support of the proposition that there had been waiver of any entitlement to claim privilege by the Third Respondent as a consequence of the provision of the Lum report to the Federal Court pursuant to the September and October 2013 orders.

49. It is unnecessary, for present purposes, to set out what Ms Taggart submitted in this regard. However, in paragraph 36 of her written submissions, she summarised why the Third Respondent proposed that its claim for privilege remained intact. Her written submissions accurately reflect what she said orally on this point. The paragraph reads, relevantly:

36   … The Lum report was filed. It was not tendered or read and Dr Lum did not otherwise give evidence. Further, by application of the Barkandji Applicant, orders were made that controlled and restricted access to and use of that report even within the Barkandji proceeding. In particular, only certain parties were required to be served with that report, those parties only had access to that report and were otherwise obliged to keep confidential source material that was provided to them on request. The evident intention of the Barkandii Applicant, that was effectively enforced by the confidentiality orders, was to continue to restrict and limit the disclosure and use of that report. Having regard to the scope and terms of the confidentiality orders, there was no at large opportunity in any of the “active parties” to defeat privilege by use of the Lum report in the Barkandji proceeding. That opportunity did not arise at the time the report was filed or thereafter.

50. Ms Taggart's written submissions then addressed questions of fairness and confidentiality, particularly in the context of the cultural position of the matters traversed by the Lum report. It is not necessary to set out any detail of these matters, given the conclusion that I have reached that the Lum report remains protected by legal professional privilege pursuant to s 118 of the Evidence Act.

51. I also observe that Ms Taggart made the further comment that, because “Ms Lawson has engaged her own anthropologist, it cannot be said that the report is a necessary source of information”. This, in my assessment, is also an irrelevant matter in the present circumstances.

The submissions for Ms Lawson

52. The convenient place to start in consideration of Mr Yarrow's submissions on behalf of Ms Lawson seeking access to the Lum report is to set out paragraphs 17 to 23 of his written submissions. These paragraphs are in the following terms:

Is the Lum report subject to legal privilege?

17   Legal privilege attaches to confidential communications between a legal adviser and client or third party for the dominant purpose of giving or receiving legal advice.

18   The dominant purpose is assessed at the time the document was brought into existence, relevantly being the time at which the Lum report was completed.

19   The Lum report, in its form requested under the subpoena, was the document filed in the Federal Court of Australia on 5 November 2013. It is not to be confused with earlier reports prepared by Dr Lum which were provided to the State of New South Wales on a confidential and without prejudice basis.

20   This Lum report was filed with the Federal Court of Australia pursuant to orders made by the Court on 27 September 2013 permitting the Barkandji native title applicant to substitute Dr Lum’s report filed on 17 April 2013 with a further report from Dr Lum.

21   The decision in Barkandji Traditional Owners #8 Part B records (at [34]) that the following expert material was filed with the Court:

(a)   Anthropological Reports of Dr Ken Lum:

(i)   Connection Report, filed 17 April 2013; and

(ii)   Expert Anthropological Report, filed 5 November 2013 [the Lum report];

(b)   Expert Linguist Report of Dr Luise Hercus, filed 27 September 2013;

(c)   Expert Historical Report of Kate Waters, filed 30 October 2013.

22   It is clear from the orders made in the Barkandji Proceeding and the judgment in Barkandji Traditional Owners #8 Part B referred to above that, at the time the Lum report was brought into existence, it was for the dominant, if not sole, purpose of the report being filed to provide expert evidence to the Court on certain facts in issue in the native title proceeding. Accordingly, the Lum report does not attract privilege.

23   While earlier versions of Dr Lum’s report may have informed legal advice in relation to the conduct of the Barkandji native title determination application, at the time the Lum report, (which is the only version requested under the subpoena) was brought into existence, it cannot be said that informing legal advice was its dominant purpose.

53. Mr Yarrow next submitted that, if I was to determine, contrary to his submissions, that the 5 November 2013 version of the Lum report had been subject to legal privilege at the time of its creation, that privilege had been waived by the filing of the Lum report with the Federal Court, and the making available of that report to the parties nominated in the Federal Court orders of September and October 2013.

54. Mr Yarrow acknowledged that the 2015 and 2017 Federal Court determinations were ones which were made by consent after the issues between the parties to those two sets of proceedings had reached agreement as to the outcome in each (with those outcomes requiring only acceptance by the relevant presiding judge that the outcome was appropriate in the circumstances - this being required pursuant to s 87A of the Native Title Act 1993 (Cwth) as each of the 2015 and 2017 determinations only related to part of the original claim).

55. In essence, the position advanced by Mr Yarrow in his written and oral submissions was that the filing of the Lum report now sought by Ms Lawson constituted an act of waiver of any privilege that might attach to the Lum report because control of access to the Lum report had, effectively, been given over to the Federal Court which, by its orders of 30 October 2013, had, in anticipation, provided access to the information contained in the Lum report.

56. Mr Yarrow’s written submissions, in paragraph 36, addressed three decisions cited by Ms Taggart in her written submissions. It is appropriate to note that, during the course of his oral submissions, Mr Yarrow not only addressed these matters, but also addressed matters raised by Ms Taggart in her written reply submissions (written reply submissions to which I will later need to turn).

57. It is necessary, to understand the conclusion which I have reached concerning the Lum report, to set out the entirety of paragraph 36 of Mr Yarrow's written submissions. The content of this paragraph is sufficient for present purposes to provide an adequate understanding of that to which I need to turn in my consideration of the gravamen of his submissions. Paragraph 36 is in the following terms (footnotes omitted):

36   In relation to the authorities cited by the Barkandji Corporation in its written submissions, the Applicant notes the following:

(a)   State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 is cited by the Barkandji Corporation in support of the proposition that privilege can attach to documents which are filed and served but not tendered or read in open court. That case concerned witness statements which had been served under the then New South Wales Practice Note, but ultimately not read or tendered in the proceedings. It was noted in that case that witness statements are of a uniquely confidential nature.11 As stated by his Honour Justice Brereton in Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104, “Conventionally and traditionally, a witness statement remained the privileged document of the party who obtained it, and provided the proof which would go into counsel's brief and presumably be used by counsel to elicit the witness' oral evidence in Court.” His Honour went on to distinguish the findings in Smoothdale from cases involving affidavits, which are “made, unlike a witness statement, not in the context that it might be regarded as confidential until and unless required to be deployed, but on the basis that it will serve as a person's sworn evidence in proceedings.” It is the Applicant’s submission that a similar character can be ascribed to the Lum report in that it was a final report which, by virtue of the order pursuant to which it was filed, was expert evidence intended to be relied upon by the Barkandji native title applicant at trial.

(b)   Dubbo City Council v Barrett [2003] NSWCA 267 involved a unique set of circumstances relating to a claim for privilege by the second defendant (Elders) over medical reports which were obtained by counsel for the first defendant (Dubbo City Council) for the purposes of defending a claim for damages made against it by the plaintiff. The documents were never produced to Dubbo City Council but only to the Court. In the present circumstances, the Lum report was filed with the Court and made available to the active parties in the Barkandji #8 Proceedings. The report was filed with knowledge that access to the report could be granted without the Barkandji native title applicant’s further consent. The effectiveness of the Federal Court’s orders to retain the confidentiality of the Lum report, as raised by the Barkandji Corporation’s submissions at [25], is not relevant to the issue of waiver. Rather, it is the fact the Lum report was filed as part of a regime by which it would be received, and relied upon, by active respondents that has the result that any legal privilege was waived.

(c)   In Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 the Full Court expressly reserved the question of waiver. In deciding no privilege existed in the final witness statements filed by the ACCC, the Full Court referred to the fact that the ACCC did not seek any restriction that Visy could make of them but did not offer further explanation of what restrictions may be required to support a claim for privilege. In the present circumstances, it was not the Barkandji native title applicant who ultimately provided access to the Lum report, but the Court by its orders of 30 October 2013.

58. It is, however, also appropriate to reproduce a paragraph from the decision of the Full Federal Court in Australian Competition and Consumer Commission that was footnoted by reference at the conclusion of paragraph 36(b) of the above paragraph in Mr Yarrow's written submissions. The paragraph from this decision, at [37], was in the following terms:

In our view, whatever is the extent of confidentiality arising from litigation privilege, one element of confidentiality is essential, namely non-disclosure to one’s opponent. To say (as does the ACCC) that the finalised proofs of evidence were created and served for the existing litigation can be accepted. However, in our view it is impossible for litigation privilege to attach to the finalised proofs of evidence, when the finalised proofs of evidence were created for the purpose of serving them on the ACCC’s opponent and when they were in fact served on that opponent.

59. I mean no disrespect to Mr Yarrow in describing the essential dispute between the position advanced by him, and that advanced by Ms Taggart, as being whether the position in Smoothdale should be preferred (Ms Taggart's position) or that advanced by him, as being derived from Australian Competition and Consumer Commission, should be preferred.

60. It is to be noted that Mr Yarrow also submitted that the decision of White J in Buzzle Operations v Apple Computer Australia (2009) 74 NSWLR 469; [2009] NSWSC 225 explained why his submission that Smoothdale should not be followed, but that the decision upon which he relied was preferable. He submitted that this should lead me to the conclusion that, even if the 5 November 2013 Lum report was originally subject to legal privilege (contrary to his earlier submission), the making available of the report to other parties in the two native title claim matters effected the waiver of that privilege, rendering it presently unmaintainable. Under those circumstances, he submitted that the report should be made available to Ms Lawson's legal advisers.

The oral and written reply submissions for the Third Respondent

61. Much of what was addressed in Ms Taggart's written reply submissions was addressed by Mr Yarrow orally and has, to the extent necessary, been considered above. It is sufficient, for present purposes, to note that Ms Taggart submitted that there was no evidentiary basis upon which I could conclude that the 5 November 2013 Lum report was prepared for the sole or dominant purpose of it being used as expert evidence.

62. She submitted that the terms of reference accepted by Dr Lum were entirely inconsistent with that proposition. Although, as earlier set out, the instructions provided a contingent basis upon which the Lum report might potentially be used as expert evidence, this was purely contingent. That contingent position did not displace the demonstrated purpose in the instructions that provided the basis for preparing the 5 November 2013 Lum report - being it was for the dominant purpose of providing legal advice.

63. With respect to the orders of the Federal Court that made the Lum report available to a limited range of opposing parties, Ms Taggart submitted, with respect to these orders, in paragraph 11 of her written reply submissions that:

11   … Whilst those orders were made subject to any other order of the Court, it can be reasonably understood that:

11.1   any variation to that order would first require the Barkandji Applicant to be given an opportunity to be heard about that matter;

11.2   unless and until such variation was made, the Lum report was not available for use at large in the proceeding (even by those parties who had access to it) and it could not be used in the ordinary way subject to the Harman principle;

11.3   there was a reasonable expectation and understanding that the matter would not proceed to a contested hearing, where the Barkandji Applicant and State of NSW had agreed there was a sufficient basis to proceed to resolve the matter by consent;

11.4   there was no tender or other right of inspection in the report; and

11.5   no variation was sought or made to those orders.

64. She submitted that these were, on their face, conditions of confidentiality imposed by the Federal Court orders.

65. With respect to the 2015 and 2017 Federal Court native title determinations, she said that:

The authorities are clear that in making a consent determination of native title, it is not the role of the Court to undertake an evidentiary assessment of the existence of native title rights and interests.

66. Finally, she relied on Smoothdale as not providing any basis to conclude that the report was expert evidence and that there was no clear intention that, if the native title proceedings went to trial, the report would be relied upon for that purpose.

67. Her oral submissions and submissions in reply were entirely consistent with her summary proposition in paragraph 17 of her written reply submissions, being:

17   In the circumstances, and having regard to the particular facts of this matter, it cannot be concluded that the Barkandji Applicant acted in a way that waived privilege in the Lum report as against the world at large. Any waiver of privilege was limited to the active parties who are not at liberty to reveal, use or otherwise deal with the content of the Lum report.

Consideration

68. The “dominant purpose” is the ruling, prevailing, or most influential purpose having the element of clear paramountcy: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416. In determining the document’s dominant purpose, I am to look at the document’s “purpose” from an objective standpoint, considering all relevant evidence including evidence of subjective purpose: 789TEN v Westpac Banking Corporation Ltd [2005] NSWSC 123 at [46].

69. I have carefully read the 2015 decision of Jagot J in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 and the 2017 decision of Griffiths J in Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971.

70. It is to be observed that, in the 2015 decision of Jagot J, her Honour made no listing of any material of the nature cited by Griffiths J in 2017. Indeed, the crux of her Honour's explanation in 2015 as to how she was able to make the 2015 determination was contained in [5] of her decision where she observed that:

5   We are able to be here today because all relevant parties agreed to the making of orders by consent which recognise the native title rights and interests of the Barkandji Traditional Owners.

71. At [52], I have quoted paragraph 21 from Mr Yarrow's written submissions. In that paragraph, he had set out material cited by Griffiths J in the 2017 Federal Court decision. However, that which he sets out is, as can be seen from a detailed reading of the decision of Griffiths J in 2017, merely a listing of material that had been filed with the Federal Court. There is no suggestion in Griffith J's decision that there was any reliance on that material, or that any of it had, in fact, been tendered or otherwise used in open court for the purposes of those proceedings.

72. I am satisfied that there is absolutely nothing in either of the Federal Court decisions that could provide any direct or indirect evidence of any intention on behalf of, or action by, the Third Respondent to waive such privilege as attached to the Lum report.

73. I have carefully considered, based on the facts and circumstances with which I am presently dealing, whether I should conclude that the legal professional privilege attending upon the report as a consequence of the express terms of the instructions given to (and accepted by) Dr Lum for the purposes of producing that report were waived by operation of the Federal Court orders of September and October 2013.

74. In this context, it requires me to determine which of the positions (Smoothdale or Australian Competition and Consumer Commission) I should adopt in the context of the circumstances of these proceedings. I have carefully read the entirety of each of these two relevant decisions.

75. I am satisfied that that the decision in Smoothdale should be preferred and that, as a consequence, I should conclude that there has not been a waiver of privilege for the Lum report and that, therefore, it should not be made available to Ms Lawson's legal advisers.

76. There are three passages in the decision of King CJ (Mullighan and Nyland JJ agreeing) in Smoothdale which provide an appropriate basis, in my view, for reaching this conclusion. The first of those appears at the foot of page 226 and the top of page 227 of the report of the decision. This paragraph is in the following terms:

Statements of witnesses are by their nature confidential documents. Their communication to another party for a limited purpose pursuant to a court order does not appear to me to deprive them necessarily of every element of their confidential character. They retain the character, except as to use by the other party for the limited purpose, “until either the witness makes the statement public by verifying it on oath in the witness box or the party who served the statement waives the privilege”, Fairfield-Mabey Ltd v Shell UK Ltd [1989] 1 All ER 576 at 577, or a party puts the statement in evidence pursuant to leave granted under par 3(e) of the Practice Note.

77. The second passage in Smoothdale is a short one on page 227 where the Chief Justice wrote:

The general principle is that once privilege is waived it is waived for all purposes. There is, however, very persuasive English authority for the proposition that there may be waiver which is partial or limited only.

78. He thereafter explained why the English authority to which he referred was capable of being invoked in Australian circumstances, to support the proposition that waiver may be limited only. It is not necessary to set out in detail the analysis that his Honour there provided. The conclusion which his Honour set out on page 229 of the report was in the following terms:

I can find nothing in the circumstances to indicate a use of the statements which is incompatible with the retention of confidentiality except to the extent that confidentiality must be modified to achieve the purpose of the Court Order namely to acquaint the other parties in advance with the evidence which the witnesses were expected to give. There was therefore no intentional waiver of privilege except to the extent of permitting use of the documents by the other parties for the purpose of preparing the case.

79. I am satisfied that this broad conclusion is equally applicable here in circumstances where neither the 2015 nor the 2017 Federal Court decisions provide any basis to conclude that the Lum report was, in fact, used or otherwise deployed in any foundational fashion for granting the determinations arising from either of those Federal Court decisions.

80. As a consequence, the Third Respondent's privilege as protecting the Lum report from release to Ms Lawson's legal representatives must stand.

Outcomes

81. I have concluded, for the reasons earlier set out, that the Martin report is not protected from being produced to the legal representatives of Ms Lawson. An appropriate regime for access to the document is incorporated in the order dismissing that element of the Third Respondent's Notice of Motion seeking to set aside the subpoena requirement with respect to the Martin report.

82. With respect to the Lum report, I am satisfied that that not only was it, in the form originally drafted by Dr Lum in March 2013, covered by legal professional privilege but that the subsequent new document, dated 5 November 2013 produced to the Federal Court pursuant to the regime in the earlier set out orders of 27 September and 30 October 2013, did not act to waive the Third Respondent's legal professional privilege with respect to the Lum report sought by Ms Lawson's subpoena (being the 5 November 2013 version of the Lum report). Having reached that conclusion, it is unnecessary to consider whether the alternative basis advanced on behalf of the Third Respondent for resisting production of the Lum report is established. It therefore follows that, to the extent that the Third Respondent's Notice of Motion seeks to have Ms Lawson's subpoena set aside with respect to the Lum report, the orders to be made arising from this decision will so provide.

83. Although some elements encompassed within the scope of the Third Respondent's Notice of Motion as originally framed were resolved by agreement, the outcomes of the elements that remained in contest were evenly divided. As a consequence, I am satisfied that the appropriate costs’ outcome of the Third Respondent's Notice of Motion should be that there is no order as to costs on the basis that Ms Lawson and the Third Respondent will each bear their own costs of the Third Respondent's Notice of Motion seeking to set aside the subpoena issued to it on Ms Lawson's behalf.

Orders

84. The orders of the Court are that:

1. The Third Respondent’s Notice of Motion:

1. to the extent that it relates to the report of Sarah Martin entitled Report for the Paakantji Claimants: Wentworth Native title claim NC95/10, Sarah Martin, for NSWALC, May 1999, is dismissed; and

2. to the extent that it relates to the report of Dr Ken Lum entitled Anthropological Report of Dr Ken Lum: Expert Anthropological Report dated 5 November 2013, is granted to the effect that Dr Lum’s report is not required to be produced to the Applicant;

3. there is no order for costs of the Third Respondent’s Notice of Motion to the effect that the Third Respondent and the Applicant will each bear their own costs of the motion.

85. Noting that, since the hearing of this subpoena challenge, the majority of the parties have reached agreement on the terms of an access regime for the Martin report, the Court orders that:

1. The Applicant, First Respondent and Second Respondent shall each have leave to inspect the document Report for the Paakantji Claimants: Wentworth Native Title Claim NC95/10, Sarah Martin, for NSWALC, May 1999 identified as Item 5 in Schedule 1 of the Subpoena to Produce filed by the Applicant on 13 July 2022 (Document) in accordance with Order 2 below;

2. The conditions placed on access to the Document are:

1. the Document is not used for any purpose other than prosecuting or defending this proceeding or any appeal arising from this proceeding;

2. copies, extracts and reproductions, whether complete or partial, of the Document may only be provided to the legal and expert advisers for each party and, when providing a copy of this Document to such an adviser, they must be advised and agree to abide the term of these orders;

3. the legal advisers may disclose the contents of the Document, including by showing a copy of it, to their client (including, for the First and Second Respondents, employees or other representatives of their client) where it is necessary for the purposes of obtaining instructions;

4. the expert advisers may disclose the contents of the Document, including by showing a copy of it, to a person where it is necessary to do so in order for that expert to make relevant and necessary enquiries in forming an expert opinion relevant to this proceeding.

86. The orders in 84(1)(a) and 85(1) and (2) are stayed until 9 am AEDT on Tuesday, 15 November 2022 with the Applicant to advise by 4 pm AEDT on Monday, 14 November 2022 if she wishes the stay to be extended until the further hearing on 17 November 2022.

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Decision last updated: 11 November 2022