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Sampi v State of Western Australia

Sampi v State of Western Australia

Case [2000] FCA 1862 4 December 2000

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FEDERAL COURT OF AUSTRALIA
Sampi v State of Western Australia [2000] FCA 1862
PRACTICE AND PROCEDURE – expert report – application for issue of subpoena for production of experts’ field notes
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PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS
WG 49 OF 1998
JUDGE:         BEAUMONT J
DATE:           4 DECEMBER 2000
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

STIRLING RESOURCES NL
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:

4 DECEMBER 2000

WHERE MADE:

PERTH

THE COURT ORDERS:
1.That the solicitors for the applicants specifically draw to the attention of Ms Glaskin and Mr Bagshaw, in writing, the following provisions of the Federal Court guidelines for expert witnesses.
“There should be attached to the report, or summarised in it, the following: (i) all instructions, (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumption upon which the report proceeds;…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sampi v State of Western Australia

Details

AGLC: Sampi v State of Western Australia [2000] FCA 1862
Case: [2000] FCA 1862
Decision Date: 4 DECEMBER 2000

CaseChat Overview and Summary

This case involved an application by the State of Western Australia, along with other respondents, to issue subpoenas for the production of documents from experts appointed by the applicants. The primary focus was on the anthropological reports prepared by Geoffrey Bagshaw and Katie Glaskin, and the State sought to obtain the experts' field notes and other records used in the preparation of these reports. The applicants opposed the application, claiming legal professional privilege over the documents and arguing that such materials should only be disclosed after the experts had given their evidence.

The central legal issue before the court was whether the experts' field notes and other preparatory materials were subject to legal professional privilege and, if not, what steps should be taken to ensure compliance with the guidelines for expert witnesses. The court considered the established duties and responsibilities of expert witnesses, as outlined in judicial precedents and the Federal Court guidelines. It was noted that while certain communications between experts and solicitors might be privileged, the documents created by experts in forming their opinions generally were not.

Justice Beaumont decided that the appropriate course of action was to direct the applicants' solicitors to remind the experts of their obligations under the guidelines. Specifically, the court instructed the solicitors to draw the experts' attention to the requirement that their reports should summarize or attach details of the instructions, facts, assumptions, and documents considered in preparing the reports. The applicants were also directed to confirm whether their experts' reports complied with these guidelines and to outline any steps to achieve compliance, subject to any legitimate claims of privilege. The application for the subpoenas was stood over pending the experts' responses, allowing the court to reconsider the matter in light of the compliance confirmation.

The court's decision emphasized the importance of adhering to the guidelines for expert witnesses and managing the disclosure of expert materials appropriately. It balanced the need for transparency in expert evidence with the protection of legitimate claims of privilege, ensuring that the litigation proceeded in an orderly and efficient manner.

Orders