Sampi v State of Western Australia

[2001] FCA 288

FEDERAL COURT OF AUSTRALIA

Sampi v State of Western Australia [2001] FCA 288

PRACTICE AND PROCEDURE – expert report – application for issue of subpoena for production of experts’ field notes – Federal Court guidelines for expert witnesses

PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS

WG 49 OF 1998

JUDGE:         BEAUMONT J
DATE:           21 MARCH 2001
PLACE:         PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 49 OF 1998

BETWEEN:

PAUL SAMPI AND JOE ROCK, FREDDIE BIN SALI, ROSIE BIN SALI, ELIZABETH PUERTOLLANO, MERCIA ANGUS, LENA STUMPAGEE, KHAKI STUMPAGEE, DENNIS DAVEY, PETER SIBOSADO AND JIMMY EJAI
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA, THE PREMIER OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR EDUCATION, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR LANDS AND MINISTER FOR MINES AND ABORIGINAL LANDS TRUST
FIRST RESPONDENTS

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

SHIRE OF BROOME
THIRD RESPONDENT

A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O’BYRNE, ELAINE O’BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD
FOURTH RESPONDENTS

DAWN BESSARAB, LEISK BESSARAB AND HELEN BESSARAB
FIFTH RESPONDENTS

E-COM MULTI LTD
SIXTH RESPONDENT

TELSTRA CORPORATION LTD
SEVENTH RESPONDENT

BRUCE RICHARD BROWN AND LYNDON MAYFIELD
BROWN (CYGNET BAY PEARLS)
EIGHTH RESPONDENTS

JUDGE:

BEAUMONT J

DATE OF ORDER:

21 MARCH 2001

WHERE MADE:

PERTH

THE COURT ORDERS:

1.That the solicitors for the applicants request that Ms Glaskin and Mr Bagshaw state in writing on or before 26 March 2001 whether they elect to either (1) comply fully with the orders dated 22 February 2001 on or before 6 April 2001 or (2) produce the documents described in par 1 of the reasons given on 22 February 2001 to the Court forthwith, on the basis that access to them, if any, will abide the further order of the Court.

2.That the solicitors for the applicants file and serve a copy of the correspondence referred to in par 1 as soon as practicable.

3.That the first respondents’ application for leave to issue subpoenas be stood over generally, with liberty to restore the application upon such notice as a Judge of the Court may allow.

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	WG 49 OF 1998

BETWEEN:

PAUL SAMPI AND JOE ROCK, FREDDIE BIN SALI, ROSIE BIN SALI, ELIZABETH PUERTOLLANO, MERCIA ANGUS, LENA STUMPAGEE, KHAKI STUMPAGEE, DENNIS DAVEY, PETER SIBOSADO AND JIMMY EJAI
APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR EDUCATION, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR LANDS AND MINISTER FOR MINES AND ABORIGINAL LANDS TRUST
FIRST RESPONDENTS

THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

SHIRE OF BROOME
THIRD RESPONDENT

A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O’BYRNE, ELAINE O’BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD
FOURTH RESPONDENTS

DAWN BESSARAB, LEISK BESSARAB AND HELEN BESSARAB
FIFTH RESPONDENTS

E-COM MULTI LIMITED
SIXTH RESPONDENT

TELSTRA CORPORATION LTD
SEVENTH RESPONDENT

BRUCE RICHARD BROWN AND LYNDON MAYFIELD
BROWN (CYGNET BAY PEARLS)
EIGHTH RESPONDENTS

JUDGE:	BEAUMONT J
DATE:	21 MARCH 2001
PLACE:	PERTH

REASONS FOR JUDGMENT
 (ON FURTHER RENEWED APPLICATION TO ISSUE SUBPOENAS FOR PRODUCTION)

BEAUMONT J:

INTRODUCTION

1. This is a further renewed application for the issue of a subpoena for production of the documents described in par 1 of my reasons [2001] FCA 110 dated 22 February 2001, being (in substance) anthropologists’ field notes.

2. On 22 February 2001, I made orders as follows:

   “1.That the solicitors for the applicants request that Ms Glaskin and Mr Bagshaw state in writing as soon as practicable whether, in the course of the process of reasoning leading to the formation of their opinions, they considered any field information other than that specifically referred to in their reports, and if so, to identify specifically the information not so referred to.

   2.That the solicitors for the applicants file and serve a copy of the correspondence referred to in par 1 as soon as practicable.

   3.Reserve liberty to the respondents to apply in connection with any question arising in respect of these orders.

   4.Standover generally the first respondents’ application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow.”

3. In purported compliance with par 2 of these orders, the applicants’ solicitors have now filed responses dated 20 March 2001, which are annexed to these reasons.

4. As I have indicated in the course of argument, in determining what order should now be made in the application, regard must be had to the practicalities.  They include the substantial volume of the material (based as it is on 104 days of fieldwork in the case of Mr Bagshaw and 110 days of fieldwork in the case of Ms Glaskin) and the fact that the trial itself is scheduled to commence in about seven weeks.

5. Given those practical considerations and being guided by the principle of the experts’ duty to the Court previously mentioned, I have concluded that fairness and the interests of justice will be achieved by now requiring the experts to indicate in writing on or before 26 March 2001 whether they elect to either (1) comply fully with the orders dated 22 February 2001 on or before 6 April 2001;  or (2) produce their field notes and other related documents mentioned above to the Court forthwith, on the basis that access to them, if any, will abide the further order of the Court.

   ORDERS

6. Accordingly I make the following orders:

   1.That the solicitors for the applicants request that Ms Glaskin and Mr Bagshaw state in writing on or before 26 March 2001 whether they elect to either (1) comply fully with the orders dated 22 February 2001 on or before 6 April 2001 or (2) produce the documents described in par 1 of the reasons given on 22 February 2001 to the Court forthwith, on the basis that access to them, if any, will abide the further order of the Court.

   2.That the solicitors for the applicants file and serve a copy of the correspondence referred to in par 1 as soon as practicable.

   3.Standover generally the first respondents’ application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:                   21 March 2001

Counsel for the Applicants:	G M G McIntyre
Solicitor for the Applicants:	Kimberley Land Council
Counsel for the First Respondents:	Mr Creewel
Solicitor for the First Respondents:	Crown Solicitor for the State of Western Australia
Counsel for the Second Respondents	K M Pettit R Vivakis
Solicitor for the Second Respondents:	Australian Government Solicitor
Counsel for Western Australia Fishing Industry Council and the Eighth Respondents	K White Mr McKenna
Solicitor for Western Australia Fishing Industry Council and the Eighth Respondents	Hunt & Humphrey
Counsel for the Seventh Respondent	L Flynne
Solicitor for the Seventh Respondent:	Blake Dawson Waldron
Date of Hearing:	21 March 2001
Date of Judgment:	21 March 2001