Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2)
[2019] FCA 1551
•23 September 2019
FEDERAL COURT OF AUSTRALIA
Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551
File numbers: WAD 490 of 2016
WAD 537 of 2018
WAD 538 of 2018Judge: MORTIMER J Date of judgment: 23 September 2019 Catchwords: PRACTICE AND PROCEDURE – objections to production of documents under subpoena – objections made on basis of legal professional privilege and without prejudice privilege – whether claims of privilege can be made and maintained in documents – identity of holders of privilege
NATIVE TITLE – objections to production of pre-existing anthropological reports – where subpoenaed party is relevant representative body – where representative body is “custodian” of subpoenaed documents – consideration of identity of “client” or “party” who holds privilege in pre-existing anthropological reports
Legislation: Evidence Act 1995 (Cth) s 117
Native Title Act1993 (Cth) ss 56, 57, 61, 62A, 66B, 84, 86B, 86F, 87, 87A, Pt 11 Div 3, 203AD, 251A, 251B
Cases cited: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547
Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 164 ALD 214
AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30
Bailey v Beagle Management Pty Ltd [2001] FCA 185
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234
Brennan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 688; 28 ALD 178
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501
Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436
Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; 93 NSWLR 155
Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322
DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499
Dunesky v Elder [1992] FCA 311; 35 FCR 429
Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191; 209 FCR 1
Equuscorp Pty Ltd v Kamisha Corp Ltd [1999] FCA 681; ATPR 41–697
Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49
Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; 39 NSWLR 601
Fejo v Northern Territoryof Australia [1998] HCA 58; 195 CLR 96
Field v Commissioner for Railways for New South Wales [1957] HCA 92; 99 CLR 285
Grant v Downs [1976] HCA 63; 135 CLR 674
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company [1992] FCA 322; 36 FCR 557
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554
Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801
Lake Torrens Overlap Proceedings [2015] FCA 519
Lennon v South Australia [2010] FCA 743; 217 FCR 438
Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117
Mann v Carnell [1999] HCA 66; 201 CLR 1
McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restraurants & Bars Pty Ltd [1999] QCA 276; [2001] 1 Qd R 276
Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; 4 VR 332
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817
Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204
Pihiga Pty Ltd v Roche [2011] FCA 240; 278 ALR 209
Prus Grzybowski v Everingham [1986] NTSC 57; 44 NTR 7
QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376
Re Dallhold Investments Pty Ltd [1994] FCA 738; 53 FCR 339
Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47
Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671
Von Stieglitz v Comcare [2014] FCAFC 97; 64 AAR 356
Date of hearing: 29 August 2019 Date of last submissions: 9 September 2019 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 253 Counsel for the First Applicant: Ms T Jowett Solicitor for the First Applicant: Cross Country Native Title Services Counsel for the Second and Third Applicants: Mr S Wright SC Solicitor for the Second and Third Applicants: Yamatji Marlpa Aboriginal Corporation Counsel for the First Respondent: Mr G Ranson Solicitor for the First Respondent: State Solicitor’s Office Solicitor for Yamatji Marlpa Aboriginal Corporation: Mr M McKenna of Gilbert + Tobin ORDERS
WAD 490 of 2016
WAD 537 of 2018
WAD 538 of 2018BETWEEN: ROY TOMMY & ORS (YINHAWANGKA GOBAWARRAH)
First Applicant
IVAN SMIRKE & ORS (JURRURU #1)
Second Applicant
IVAN SMIRKE & ORS (JURRURU #2)
Third Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondents
JUDGE:
MORTIMER J
DATE OF ORDER:
23 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The objections by the Yamatji Marlpa Aboriginal Corporation to the production, and the inspection, of the documents set out in order 2 of these orders are overruled.
2.Pursuant to rr 24.19 and 24.20(3) of the Federal Court Rules 2011 (Cth), the second and third applicants are granted leave forthwith to inspect and copy the following documents:
(a)Report prepared by Dr Lee Sackett entitled “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010; and
(b)Report prepared by Dr Lee Sackett entitled “Yinhawangka Connection Report, Confidential Report to YMAC, Perth” dated 2010.
3.Subject to any application by a party on or before 4 pm on 25 September 2019 to be heard on the question of costs, there be no order as to the costs of the interlocutory hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
These are the Court’s reasons for overruling objections made by the Yamatji Marlpa Aboriginal Corporation (YMAC) to production of documents under two subpoenas in relation to three proceedings which are part heard before the Court, on a separate question. The history of the three proceedings, and how the separate question came about, can be found in my reasons in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671 at [5]-[12]. The subpoenas were issued by the Jurruru applicant in two of the three proceedings.
In summary terms, the separate question concerns an area of land and waters located between an area determined in favour of the Jurruru People, and an area determined in favour of the Yinhawangka People. There is no debate that the members of the claim group represented by the Yinhawangka Gobawarrah applicant are part, or a “sub-group”, of the Yinhawangka native title holding group. The land and waters in question are located in the Pilbara, south-west of the town of Paraburdoo in an area overlapping with Ashburton Downs Station in the north and south, and Mininer Station in the south-east, and including a large tract of the Ashburton River. I shall call this area “the overlap area” in these reasons.
YMAC is the representative body recognised by the responsible Minister, under s 203AD of the Native Title Act1993 (Cth) (Native Title Act), for the Pilbara, Murchison and Gascoyne regions of Western Australia. It is the relevant representative body for the claims by the Jurruru People, and the Yinhawangka Gobawarrah People.
The separate question hearing process and the expert evidence
The process of hearing of the separate question has been somewhat fraught, largely due to the inability of the Yinhawangka Gobawarrah applicant to secure funding for legal representation, a matter I described in my 2018 reasons. Amongst other difficulties that situation has caused, it has meant that the Yinhawangka Gobawarrah applicant’s anthropological expert, Dr Daniel Vachon, was not funded to complete his report and accordingly he did not complete it. That in turn has meant there is a debate, not yet resolved, about whether his partially completed report can be admitted into evidence. It has also meant the Court will not have the benefit of him giving expert evidence. The expert evidence tranche of the separate question has not yet been heard.
I emphasise I do not criticise the Yinhawangka Gobawarrah applicant, or its legal representatives, Cross Country Native Title Services, for this situation. It is not of their making. Eventually, and very close to the first tranche of hearings, some limited funding was secured by Cross Country Native Title Services from the National Indigenous Australians Agency, and the Yinhawangka Gobawarrah applicant has continued to be legally represented. The Court has derived much assistance from the Yinhawangka Gobawarrah applicant’s legal representatives, and expresses its gratitude to them for their continuing commitment to the Yinhawangka Gobawarrah applicant and to this proceeding, under challenging circumstances.
The circumstances of the Yinhawangka Gobawarrah applicant meant that the Court gave some consideration, prior to the on country hearing of lay evidence in July 2019, whether to appoint a court expert, so that there was a second expert opinion to complement the opinion of Dr Pamela McGrath, the anthropological expert to be called on behalf of the Jurruru applicant. This consideration occupied a lot of the Court’s time and resources, and the parties’ positions shifted somewhat from time to time about whether this proposal was agreeable to them or not, on what terms it might be agreeable, who the anthropologist might be, how the future conduct of the proceeding should occur and the like. In the end, the continued qualifications and conditions the parties sought to impose on the process led the Court to abandon its attempts, although the Court did make it clear it might revisit that issue at some later stage. That is now less likely to occur because the Yinhawangka Gobawarrah applicant has secured sufficient resources to retain Dr Kingsley Palmer, and Dr Palmer will be called to give expert evidence. Dr Palmer has completed anthropological reports about the overlap area, which are described later in these reasons.
As preparation for the hearing of the separate question proceeded, it became apparent there were pre-existing anthropological reports relevant, or potentially relevant, to the question of which people hold native title in the overlap area. The evidence on this interlocutory application discloses that the Jurruru applicant and the Yinhawangka Gobawarrah applicant, with the assistance of the State and the apparent concurrence of YMAC, reached agreement about the production and use of several of those pre-existing anthropological reports. Those factual circumstances are not unimportant to the issues to be determined on this interlocutory application. However, not all of the pre-existing anthropological reports were made available to both parties, and it was this circumstance that led to the Jurruru applicant seeking to obtain the reports by way of subpoena.
The subpoenas
The Jurruru applicant was granted leave to issue two subpoenas to YMAC. Each is dated 23 May 2019.
One subpoena seeks production of the following document:
Draft report prepared by Dr Anna Kenny entitled “Confidential and without prejudice draft expert report on Jurruru Overlap Area and Triangle Area, 27 May 2011”.
The other subpoena seeks production of the following two documents:
Report prepared by Dr Lee Sackett entitled “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010; and
Report prepared by Dr Lee Sackett entitled “Yinhawangka Connection Report, Confidential Report to YMAC, Perth” dated 2010.
As will become apparent later in these reasons, I accept the submission of senior counsel for the Jurruru applicant that the focus of the determination of YMAC’s objections to production must remain steadily on the particular documents sought under the subpoena, and whether the claims of privilege can be made and maintained in respect of those particular documents. That is not to ignore the broader context in which they, and other anthropological reports, might have been produced, and whether there were draft, or different versions at one time or another. However YMAC’s objections, and the claims of privilege which ground them, must be assessed by reference to the particular documents sought.
In written submissions, the Jurruru applicant submitted the Court could inspect the documents if it needed to, relying on Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [31] and Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 at [52]. I accept the general position is that if it considers it appropriate to do so, a Court may inspect documents over which a claim of privilege is made in resisting a subpoena. I note however that in Hancock, Brereton J ultimately expressed a different view. His Honour’s reasoning is not unimportant in the present context where, as these reasons will explain, I consider the evidence adduced by YMAC is insufficient in many respects. At [34] of Hancock, Brereton J said:
Better informed now by the above analysis, in my view, such an approach is not merely unsatisfactory, but impermissible in principle. Whether the creature of judicial decision or, as I think more properly, rules of court, the court’s power to inspect documents – and to require their production for that limited purpose – was a response to the potential injustice in treating the claimant’s oath as conclusive. The power was not intended to detract from the requirement that a person claiming privilege prove, by admissible evidence, the grounds of the claim. While it is clear that the court may now require a document the subject of a claim of privilege to be produced so that it may inspect it for the purpose of ruling on the claim, that is quite a different notion from permitting a person claiming privilege to sustain the claim by adducing no testimonial evidence but asking the court to inspect the documents. The privilege being a privilege against production, it permits the person entitled to the privilege to refuse to produce the document to the court. To voluntarily proffer the documents for inspection – as opposed to doing so pursuant to a requirement made by the court under UCPR r 1.9(5)(c) – is inconsistent with maintaining the claim.
With respect, I see the force in the approach taken by Brereton J. It is not necessary for me to decide conclusively if I would decline to inspect the documents for that reason, as there is another reason why I have decided not to do so. I am currently presiding over the determination of a separate question to which the expert evidence in these reports is contended to be relevant. There is other expert evidence to be adduced on the separate question, from other anthropologists. As a result of orders made on 29 August 2019, there will be further expert evidence adduced by the Yinhawangka Gobawarrah applicant, from Dr Palmer. I have not yet heard the expert evidence of Dr McGrath for the Jurruru applicant. In those circumstances, and to avoid any apprehension that I may not be able to put out of my mind what I have read in these reports if they do not make their way into evidence, I do not consider it is appropriate for me to know what Dr Sackett’s opinions are, or the bases for those opinions. By inspecting documents subject to an objection, there is always the possibility that a party, or the public, “might entertain a reasonable apprehension that the judge might not bring an unprejudiced mind to the hearing of the case”, even though the parties agreed to the Court inspecting the documents: see Brennan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 688; 28 ALD 178 at 179 (Heerey J), citing Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288.
Agreement on production of the 2011 Kenny report
At the hearing of the interlocutory application, it became clear that YMAC did not maintain its objection to the production under subpoena of Dr Kenny’s 2011 report. This was explained in the following way:
MR McKENNA: As custodian of that report, when we were obliged to present the document to the court, we presented it in a sealed envelope saying privilege attaches to this. It is the privilege of Jurruru, the applicant in Jurruru.
HER HONOUR: Yes.
MR McKENNA: I understand Mr Wright to be authorised to speak on behalf of the applicant. We make no submission in relation to the Kenny 2011 report as to whether it is – whether it - - -
HER HONOUR: Sorry – I missed what you said. So what’s – you understand what?
MR McKENNA: I understand Mr Wright is the representative of the Jurruru applicant.
HER HONOUR: Yes.
MR McKENNA: And so we’re not saying against him that his report is privileged. He has subpoenaed the – a Jurruru report. We don’t quite know why, but we presented it to the court on the basis that it’s subject to privilege because - - -
HER HONOUR: So there’s no objection to the 2011 Kenny report.
MR McKENNA: Going to the owners of it? No. But it’s their report. We’re not – we don’t want the presentation of the report to the court to waive the privilege that they have. If they want to waive it or if it has already been waived, that’s a matter for them. I am not instructed on that matter.
HER HONOUR: All right.
MR McKENNA: They’ve subpoenaed their own report. It’s in their hands as we speak.
HER HONOUR: Well, it’s not, actually.
MR McKENNA: No, it is. That copy - - -
HER HONOUR: It is?
MR McKENNA: - - - is not in their hands. That’s their report.
It appeared that this position was not one which had been communicated clearly to the Jurruru applicant, because the statement of issues provided to the Court the day before the hearing still referred to the 2011 Kenny report. Nevertheless, once YMAC’s position was made clear in open court, an order was made orally during the hearing releasing Dr Kenny’s 2011 report to the Jurruru applicant.
I note that Mr McKenna directed his oral submissions at the Jurruru applicant as the holder of the asserted privilege in the 2011 Kenny report, rather than the claim group. This is a matter which assumes some importance later in these reasons, and in the parties’ submissions.
Nevertheless, there was in the end no debate about production by YMAC of the 2011 Kenny report. What remained were YMAC’s objections (as “custodian”, to use its lawyer’s description) to the production of the two reports by Dr Sackett. In these reasons I refer to the first report set out at [10] above as the “Sackett Overlap Report” and to the second report as the “Sackett Connection Report”. I deal first with the Sackett Connection Report, and then with the Sackett Overlap Report, because my reasoning on the Sackett Connection Report informs and explains in part why I have reached the conclusions I have about the Sackett Overlap Report.
YMAC’s objections to production of the Sackett reports
As “custodian”, YMAC objected to production of the reports on the following bases.
To the Sackett Connection Report:
(a)legal professional privilege; and
(b)without prejudice privilege.
To the Sackett Overlap Report:
(a)legal professional privilege; and
(b)without prejudice privilege.
The evidence and argument adduced on the interlocutory hearing
At the interlocutory hearing, the parties read and relied on the following affidavits:
(a)for YMAC, the affidavit of Michael John Joshua Meegan sworn 6 June 2019;
(b)for the Yinhawangka Gobawarrah applicant, the affidavit of Roy Tommy affirmed 16 June 2019 and the affidavit of Ambrose Michael Cummins affirmed 16 June 2019; and
(c)for the Jurruru applicant, the affidavit of Greg Young affirmed 12 June 2019.
As I noted above, shortly before the commencement of the hearing of the interlocutory application, the parties produced a signed statement of issues and their position on each issue. There was some departure from the document during the course of the hearing by YMAC and the Yinhawangka Gobawarrah applicant, but it provides a useful foundation for the determination of YMAC’s claims. Throughout the hearing, and afterwards, the parties and YMAC took somewhat of a dizzying combination of positions on various issues.
The fact the parties and YMAC advanced various (and at times shifting) positions on the issues in their oral and written submissions reflects, in my opinion, the potential conflicts of interest at play, and the lack of clarity sometimes evident about the role of a representative body, and its internal lawyers, in the gathering of expert evidence for historical and current native title claims, where those claims may have some connection with one another.
A chronology of key events was also prepared by YMAC, which was helpful, although there were one or two entries in it that the Jurruru applicant disputed, and where necessary I make findings about the timing of material events in my reasons below.
The parties referred the Court to few authorities in written and oral submissions. Some further authorities were forthcoming in the supplementary written submissions. However, considering the importance of the issues, and the plethora of decisions on both legal professional privilege and without prejudice privilege, it is difficult not to have a sense of unease that there may be relevant decisions to which the Court has not been referred, or which were not identified during what has been a reasonably short period of time in which to prepare a decision.
RESOLUTION
The parties’ statement of issues extended to issues and argument about the admissibility of the documents subject to the subpoenas, if YMAC’s objections to production were not upheld. Senior counsel for the Jurruru applicant submitted it would be expedient for the Court to determine issues of admissibility at the same time as the issues concerning privilege. It was common ground that YMAC’s objections on the basis of privilege were to be determined in accordance with common law principles, and not according to the provisions of the Evidence Act 1995 (Cth): see Mann v Carnell [1999] HCA 66; 201 CLR 1 at [27], [41] and [144] and Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [16], [135] and [199]. Nor is there any derivative modification of common law principles because of the terms and content of the Evidence Act: see Esso at [23], [64], [91] and [144]. See also Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; 93 NSWLR 155 at [4], Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191; 209 FCR 1 at [45]-[49] (Lander and Jagot JJ) and Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236 at [17] (Collier J).
I informed the parties at the hearing that in my opinion it was premature for the Court to determine issues of admissibility. I explain what I presently see as the consequences of the Court’s decision on YMAC’s objections for any subsequent questions about admissibility at [252]-[253] below.
It was also agreed by all parties, and YMAC, that YMAC bore the onus of proving its claims to privilege in resisting production of the documents sought by the subpoena: see Grant v Downs [1976] HCA 63; 135 CLR 674 at 689, Dowling at [20] and Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204 at [71].
In Hancock, Brereton J said at [7]:
To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable”. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.
(Footnotes omitted.)
I respectfully agree with this statement. See also Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [8] (Griffiths J).
YMAC’s onus of proof assumes some importance in my reasoning below.
Who holds the asserted privileges
In the joint judgment in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595 at 614-615 the High Court said the Native Title Act must be “read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title”. This observation was subsequently endorsed by the High Court in Fejo v Northern Territoryof Australia [1998] HCA 58; 195 CLR 96 at [24]. The objections by YMAC to production give rise to some of those novel problems.
Contrary to the position eventually adopted by YMAC and the Yinhawangka Gobawarrah applicant, the first step in addressing YMAC’s objections is to consider the question of who holds the asserted privilege – whether it be legal professional privilege or without prejudice privilege. In the context of the Native Title Act, that question presents some challenges.
Throughout the oral argument, it appeared there was some common ground on the answer to this question. The apparent common ground, which reflects the conclusion I have reached, was that the holder of the privilege would be (relevantly in the present circumstances) the applicant in a native title determination application lodged under s 61; and post-determination, the holder of the privilege would be the prescribed body corporate determined by the Court under ss 56 and 57 to hold the native title on behalf of the common law holders.
However, in oral reply submissions shortly after 4 pm at the interlocutory hearing, the lawyer representing YMAC raised squarely for the first time a contention that the privilege is held by the members of the native title claim group, or the native title holding group, as the case may be. It was unclear whether this was being put on the basis that all claimants as individuals held the asserted privilege, or held it in some collective way, and it was unclear how the “will” of any individuals, or any collective “group”, would be ascertained, or from whom instructions would be sought, and in what fashion. On any view, this was a significant divergence from how YMAC’s objections and arguments had been presented to that point. Accordingly, I gave leave for YMAC to file supplementary written submissions setting out its argument, and for the parties to file written submissions in response. I deal with these supplementary submissions at [69] below.
In considering who, in the context of a claim under s 61 of the Native Title Act, is the relevant “client” or “party”, some basic propositions should be recalled.
The privileges with which this argument was concerned arise in the context of particular relationships and circumstances. The law seeks to protect communications made in the context of those relationships or circumstances, so as to advance policies which are fundamental to the rule of law. Identifying the relationship, the parties to it, and the specific circumstances are all critical to resolving how any privilege is said to arise, whether in fact it does arise, who holds it, and indeed whether it attaches at all to the communications asserted to be protected by it. All these matters are questions of fact, to be determined by evidence, and the primary responsibility for adducing the necessary evidence falls on the person who asserts the privilege as an answer to a coercive process such as a subpoena.
In particular, legal professional privilege is a privilege which exists between lawyer and client. It exists to protect the interests of the client: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 at 570 (Gummow J). It extends in some circumstances to cover communications involving third parties, but where it does so, that is to advance the policy of the law which lies behind legal professional privilege. The policy is, in general terms, to protect the confidential relationship between lawyer and client, so as to encourage and facilitate a free and frank flow of information within that relationship, for the purposes of litigation, or for the giving and receiving of legal advice. Chief Justice Brennan described it in the following terms in Propend Finance (at 508):
The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because “it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers”. Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. In Grant v Downs, Stephen, Mason and Murphy JJ said:
“This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure ... to the solicitor.”
(Footnotes omitted.)
Before turning to explain my reasoning for proceeding on the basis that the holder of the relevant privileges is the applicant in a proceeding for a determination of native title, or, post-determination, the prescribed body corporate holding the native title on trust (or acting as agent for the common law holders), it is necessary to recall a matter which was clarified by Reeves J in QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376.
Bygrave was a judicial review of a decision of a delegate of the Native Title Registrar, who refused to give notice of an indigenous land use agreement (ILUA) under s 24CH of the Native Title Act. The relevant representative body, Queensland South Native Title Services Ltd (Queensland South), applied to be joined as a party to the proceeding, and the questions before Reeves J on this occasion were whether it had a “sufficient interest” to be joined, and whether as a matter of discretion it should be joined. On this second question, Reeves J discussed whether as a matter of discretion there should be no joinder because a conflict of interest might arise if the representative body were to become a party, in circumstances where Queensland South’s counsel informed the Court during oral submissions that Queensland South was the “solicitor on the record” for the native title applicant involved in the proceeding.
As Reeves J noted at [30] and [33], that was not the case, especially since Queensland South was not a “solicitor”, and the “solicitor” recorded on the Court’s file was a natural person, and a person admitted to practice in Western Australia (although not, as the evidence eventually showed, in Queensland). Justice Reeves relevantly said at [30]:
It followed from this, that it must be Mr Rind who owed the relevant fiduciary duties, as solicitor, to the second respondents, and it must be he who may have the conflict of interest that was said to arise if Queensland South were to become a party to these proceedings.
It also turned out, as Reeves J explained at [41], that the evidence showed this person was not, in the relevant sense, the “Principal Legal Officer” of Queensland South, as some documents filed with the Court had suggested. Instead, another individual still held that role and should have been identified as the solicitor on the record for the native title applicant. It was this chain of events, not reflecting altogether happily on those involved, which led Reeves J to make a series of observations about the role of a legal representative in litigation, and to apply those observations to the context of native title litigation.
His Honour stated at [46]-[47]:
The expression “solicitor on the record” is not defined in the Federal Court of Australia Act or the Federal Court Rules. However, it is implicit from the relevant provisions of the Federal Court Rules that the expression refers to the solicitor who is nominated to act for an applicant, in the commencing application, or to act for a respondent, in a notice of appearance: see O 4, r 4(1)(c) and O 9, r 4(1)(b) respectively.
A party to any proceedings in the Federal Court can only appear in one of two ways: in person, or by a solicitor: see O 4, r 14(1), O 9, r 1(1) and O 45, r 1(1). While this proposition is not expressly stated in the Federal Court Rules, it is clearly implicit from the fact that the Rules offer no other option, unless leave is obtained. Furthermore, support for it is provided by the limited circumstances in which leave may be obtained to appear by any other person.
At [49], having referred to the relevant rules concerning corporations and the need for representation by a solicitor unless leave is granted, Reeves J said:
To similar effect, s 85 of the Act allows a party to native title proceedings to appear in person, or by a barrister, or solicitor, or: “with the leave of the Federal Court, another person”. See also the interrelated provisions of O 78, r 42A of the Federal Court Rules. This provision is analogous to the Court’s inherent power to allow a party to appear other than by a solicitor. However, it has been held that such applications are not to be granted as a matter of course: see Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [10].
On the importance of identifying who is the solicitor on the record for a party, and having made a number of observations about that at [52]-[56], Reeves J said at [57]:
All these observations underscore the fact that the role of the solicitor on the record is critical to the Court’s ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. This is particularly so in native title litigation where the costs sanction against the parties has been significantly reduced by the provisions of s 85A of the Act requiring costs orders to be the exception in such litigation. This necessarily means that the Court has to rely even more heavily upon the diligence and integrity of the solicitor on the record, among others, in the case management of native title litigation. These observations also go to demonstrate how important it is that the solicitor on the record is properly identified by name and address and all the required contact information is provided in accordance with the Rules.
I respectfully agree with those observations. They are important in the current context in a different way: it is relevant in the current circumstances for the Court to be able to identify who is said to have been the solicitor on the record, as well as who is said to have been the “client”.
Justice Reeves ultimately found there was no conflict of interest in the Queensland South solicitor acting for the native title applicant also being a principal of Queensland South if it were to become a party to the proceeding. In his reasoning leading to this conclusion, Reeves J made this general statement about the duties of a solicitor (at [67]):
There is no doubt that a solicitor acting for a client has fiduciary obligations to that client which include a duty of undivided loyalty. As Mr O’Gorman correctly observed, a solicitor employed by a legal aid service has the same duty to his or her client: see Re Chapman, Feenstra, Cartwright & Gendall [1977] 2 NZLR 196 at 199 per Mahon J. For present purposes, this duty includes a proscription against the solicitor, at the same time, acting both for and against that client in the same matter or proceedings – this gives rise to an “inescapable conflict of interest”: see Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 234-235 per Millett LJ. This proscription is reflected in O 45, r 2 of the Federal Court Rules, which provides that:
Where a solicitor or his partner acts as solicitor for any party to any proceeding, or is a party to any proceeding, that solicitor shall not, without the leave of the Court, act for any other party to the proceedings not in the same interest.
However, this does not apply in the present circumstances because there is no suggestion that Mr Hardie is proposing to act for another party in the Iman #2 proceedings.
I do not refer to that passage because there is any allegation in the present situation that any solicitor within YMAC has not acted consistently with her or his fiduciary duties in dealing with the Sackett Connection Report or the Sackett Overlap Report. Rather, it is to emphasise that, in examining how a solicitor “on the record” in a proceeding for a party must behave, the focus is on the precise relationship which arises between that solicitor and her or his “client”. That leads to the obvious point that one must be able to identify who is the “client”.
This in turn leads me to explain who, in the present circumstances, I consider must be identified as the “client”, and the “party”, and therefore the holder or holders of the asserted privileges.
In McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [361]-[377] I discussed the nature of the entity which is an “applicant” for the purposes of s 61 of the Native Title Act, and its representative nature. I adhere to and adopt those observations. I also adhere to and adopt the observations I made at [447]-[451] of McGlade about the scope and content of s 62A of the Native Title Act. At [450]-[451] I found that the terms of s 62A empowered the members of an applicant, acting jointly, to deal with an ILUA, while recognising that an ILUA cannot be registered and therefore cannot be made effective unless and until it is authorised by the claim group in accordance with the definition of authorisation in s 251A. This operates as a restraint on the capacity of the members of an applicant to bind the claim group as a whole.
In particular, I reiterate what I said at [448]:
Section 62A recognises that role, and empowers the individuals who constitute the applicant to perform such functions and make such decisions, because they are authorised by the claim group members under s 251B. The authorisation renders the individuals representatives of the group, and s 62A then empowers them to deal with “all matters arising under” the NT Act in relation to the claimant application (or the compensation application, as the case may be).
Added to this should be the obvious point that it is the applicant which is the party, indeed the moving party, in a claim under s 61 for a determination of native title: see s 84(2) and (8) of the Native Title Act. If the Court makes orders, it makes them in respect of, or against, the applicant, not the claim group members.
Likewise, the terms of s 61 make it clear that the moving party for a compensation claim is either the registered native title body corporate (RNTBC), or a person or persons authorised by the compensation claim group. In either case, it is the RNTBC or the “person or persons authorised” who are the moving parties, and if the latter, then as the terms of s 61(2)(b) make clear, the person or persons also becomes “the applicant”.
In a s 61 application, the “applicant” is also the person who must provide the primary evidence of the entitlement of the claim group: see s 62(1)(a), and s 62(3)(a) (in respect of compensation applications).
Section 66B provides the statutory mechanism by which members of the applicant can be replaced, and the presence and purpose of this provision also makes it clear the Native Title Act intends that the applicant is to be considered the relevant party for the purposes of the Act. In Lennon v South Australia [2010] FCA 743; 217 FCR 438 at [22], Mansfield J observed that s 66B may not “cover the field” in terms of how a native title application can be prosecuted where one of the people who constitute the applicant has died. In the circumstances of that case, his Honour held the surviving members of the applicant could continue to prosecute the claim group’s native title application, without the need for any application under s 66B. I respectfully agree. Justice Mansfield’s observations at [34] are relevant:
In my view, in the absence of any evidence to suggest to the contrary, that authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of them. Although it is not express, I consider that the authorisation in its terms is one for them, or so many of them, as continue to be living and able to discharge their representative function to do so. The authorisation contemplated not simply the making of the application, but dealing with matters in relation to it, which (as experience has shown) may extend over a quite lengthy period of time.
In this passage, Mansfield J is recognising the ongoing, collective responsibility of those individuals who constitute the applicant for the conduct of a native title application. His Honour’s approach supports the view I have formed that, subject to any specific factual situation where the evidence suggests to the contrary, it is the applicant, as an entity (and therefore those individuals who constitute the applicant, jointly) which is the “party” and the “client”, and holds any privilege.
Upon a determination of native title, the Native Title Act provides expressly for how the native title that has been recognised to exist in the common law holders is to be held, and by whom it is to be held, by creating the statutory entity of a RNTBC for that purpose. It also provides that in some circumstances the native title rights and interests are to be held by the common law holders themselves, but that then there must at least be a prescribed body corporate which is to act as agent or representative of the common law holders: see generally ss 56 and 57. Either way, the Native Title Act requires a prescribed body corporate to be created post-determination and to act as the RNTBC for the purposes of the Native Title Act.
That being the structure and purpose of the Native Title Act, it seems to me that insofar as any legal professional privilege arises (or like privileges under the uniform legislation), the relationship of lawyer and client for the purposes of the conduct of a proceeding must exist between the members of the applicant, jointly as the entity “the applicant” established by the Act, and any legal representatives. The Native Title Act contemplates that it will be the applicant who will conduct the proceeding on behalf of the claim group members, and therefore from whom the legal representative will take their instructions. Chaos would result if it were otherwise, and legal representatives in a native title claim could be subject to “instructions” of varying content by dozens or indeed hundreds of individuals. The Native Title Act provides no structure for a claim group to act communally in the conduct of a proceeding and indeed prohibits any other way of bringing a proceeding: see s 61(1). Aside from the definitional terms of s 251A and s 251B (as to which see my view of these provisions as definitions in McGlade at [423]-[424]) which pick up other provisions where the word “authorised” is used, the Native Title Act provides no structure or process for a claim group to act independently of its representatives, who are, jointly, “the applicant”. The Native Title Act prescribes when there must be “authorisation” from the whole of the claim group for a step, or a decision, and it is through those provisions, and s 66B, that the whole of the claim group retains control over those claim group members who, jointly, constitute the applicant.
Further, insofar as any without prejudice privilege is said to attach to documents or communications made during the course of a proceeding for a determination of native title, in my opinion the text, context and structure of the Native Title Act suggests that the holder of any such privilege must also be the applicant, as the party to the proceedings. It is the applicant who will, as the applicable party, participate in any mediation referred under s 86B, or conduct a negotiation under s 86F (that function being limited to parties). It is the applicant who will have to bring an application for a consent determination, and it is an applicant who will be able, consistently with s 62A, to agree to orders under s 87 of the Native Title Act (the agreement being one made between the parties: see s 87(1)). Granted that latter function may well be performed by an applicant only after what is commonly called an “authorisation meeting”, but in terms of the way the Native Title Act is intended to operate, that will be necessary because some conditions were originally placed on the scope of an applicant’s authority, which may include not agreeing to any consent determination without the express authorisation of the claim group. If that is the case, and assuming the placing of such conditions on the authority of an applicant is valid, the fact of such a condition being placed on an applicant’s authority to agree under s 87 does not alter the character and function of an applicant for the purposes of the Native Title Act. The same reasoning applies to s 87A.
I apply the same reasoning to a prescribed body corporate created after determination, and indeed the argument is all the stronger since such a body is a legal person and the intention of the Act is that the native title recognised in the common law holders will be held by a legal person, either on trust or as agent for the common law holders.
Three points can be made here, by way of analogy with the general law, and not for the purpose of any definitive determination that the circumstances are the same; rather, to illustrate that there is some consistency with general law principles in seeing an applicant, and a prescribed body corporate, as capable of holding legal professional privilege which arises by reason of advice given in respect of a s 61 claim, or in respect of a s 61 proceeding.
First, there is authority to the effect that legal professional privilege can survive the death of the client: see Dunesky v Elder [1992] FCA 311; 35 FCR 429 at 431-432 (Foster J). In Prus Grzybowski v Everingham [1986] NTSC 57; 44 NTR 7, Kearney J noted (at 12), relying on English authority, that the privilege survives the death of a client, and the question is then who can waive it, the answer given by the English authorities being the deceased’s “personal representative”: in that sense, the “successor” in law to the deceased person. That was the approach taken recently by Wheelahan J in Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 164 ALD 214 at [22]-[25], with which I respectfully agree. That common law position has been codified in s 117(1)(e) of the Evidence Act.
There is some sense in principle of applying this reasoning to the role of a prescribed body corporate in the native title context, once there is no longer an applicant and yet there are still communications or documents over which legal professional privilege, or without prejudice privilege, might be asserted. However, these cases also make clear there must still be some person or legal entity who can be identified as the “client” or the “party” for the purposes of waiver, even if that is in some kind of successor capacity.
Second, in Hancock, Brereton J discussed the question of who was the holder of legal professional privilege in a situation of trustee and beneficiary. At [6], his Honour said:
Moreover, Mrs Rinehart is not entitled to maintain against Bianca – as a beneficiary, and a fortiori as replacement trustee - a claim of privilege in respect of trust documents: Bianca as new trustee is as much entitled to them as her predecessor, Mrs Rinehart. Legal advice obtained by a trustee for guidance in the administration of the trust or the proper exercise of trust powers belongs to the trust, not to the trustee personally. On the other hand, advice obtained for the trustee’s personal assistance, such as in resisting litigation brought against the trustee by a beneficiary, belongs to the trustee alone. Thus to make good her claim, Mrs Rinehart must establish not only that the disputed documents were privileged, but that the privilege was hers personally, and not that of the trustee of the trust. The issue for determination is whether Mrs Rinehart has done so.
(Footnotes omitted.)
There are some parallels with the position of an applicant in a s 61 proceeding. Individuals who constitute the applicant do not hold any legal professional privilege personally: they hold it because they are, jointly, members of the applicant and the applicant (as a statutory concept) acts as a representative for the claim group. The privilege belongs to the applicant for the purposes of its statutory function, where the legal advice or litigation concerns the conduct of a s 61 proceeding, in the same way it belong to the trust where the legal advice (or litigation) concerns the administration of the trust.
Third, there may be a range of qualifications, and nuances, to be applied to circumstances where a communication or document is subject to legal professional privilege or without prejudice privilege during the currency of a s 61 proceeding, and to the question of who (if anyone) can assert that privilege (or waive it) after that proceeding has ended. In circumstances dealing with claims of privilege after a company had been subject to a winding up order and placed in liquidation, Sackville J held in Re Dallhold Investments Pty Ltd [1994] FCA 738; 53 FCR 339 at 342 that the directors could not assert legal professional privilege on behalf of the company. His Honour considered whether the appropriate person to do so might be the liquidator, and concluded that may well be the case. However, his Honour qualified this conclusion in several ways: first, he recognised no one might be able to assert the privilege (at 342); and second, he observed that whether or not the liquidators could do so would depend on the identification of a source of power for the liquidator to assert or waive such a privilege, and it would not be correct to see a liquidator as having that power “simply as a matter of course” (at 347).
I am by no means to be taken as finding that there is any necessary analogy with any of these situations: the legislative scheme of the Native Title Act is unique, the entities and concepts for which it provides, and their functions, are also unique. All these questions will no doubt be worked out on a case by case basis. I refer to these cases simply to point out, as I have noted, that depending on the factual circumstances and the necessary statutory analysis within the Native Title Act that accompanies the factual circumstances, there may be a range of legal outcomes, but the conclusions I have reached on the evidence and in the circumstances of this application, are not inconsistent with the approaches in the cases to which I have referred.
What is important is not to assume that in the unique and various circumstances arising in the making of claims under s 61 of the Native Title Act, there is some ongoing, automatic attachment of any particular privilege to documents such as anthropological reports. This case is a good illustration of the dangers of making too many assumptions about that matter, and a good illustration of the law’s focus on the circumstances in which a particular report was created, and on the particular circumstances in which such a report might have, or might not have, formed part of a confidential communication for the purposes of parties to a proceeding resolving their dispute. It is also a good illustration of the need for those who assert a privilege to be able to prove it. On that count, there are no special rules for native title proceedings.
The supplementary submissions of YMAC and the responsive submissions of the parties
As I have noted above, in light of the apparent change in position of YMAC towards the end of the interlocutory hearing regarding the question of who the relevant holder of privilege is in the context of a native title proceeding, I gave the parties leave to file supplementary written submissions on the question of who holds legal professional privilege and without prejudice privilege in the Sackett Connection Report and Sackett Overlap Report.
In terms of their content, the submissions filed went some way beyond the leave which had been granted. They were effectively yet another iteration of each of the parties’ and YMAC’s positions on all issues, and not necessarily a consistent iteration with previous ones.
YMAC filed its further submissions first, on 4 September 2019. In summary, YMAC submitted:
(a)(at least prior to any determination of native title), the holders of legal professional privilege and/or without prejudice privilege are the members of the relevant native title claim groups;
(b)after any determination of native title, the holders of legal professional privilege and/or without prejudice privilege are the determined common law holders;
(c)the applicant (at the claim stage) or a prescribed body corporate (after determination) is not the relevant holder of privilege, for reasons including that:
(i)privilege can attach to a report created prior to the filing of a native title claim and thereby prior to the existence of an “applicant”, such that any privilege must “vest in the people on whose behalf the advice is sought and to whom the advice is to be given, being the members of the potential claim group”;
(ii)an “applicant” is a “statutory construct” with limited functions and decision-making powers, constituting “the vehicle for the creation of, but not the repository of, the reports”, and in that sense the applicant is more akin to an agent;
(iii)there is no right to hold or waive privilege conferred on a prescribed body corporate under the Native Title Act or the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth);
(iv)a person (presumably YMAC here meaning an individual who is a member of an applicant) can be an applicant in multiple proceedings, such that “the privilege is held for and on behalf of the group which they represent”; and
(v)if the “applicant” is the relevant holder of any privilege, this would create a “void” in circumstances where a claim is dismissed and a lack of continuity following the “combination, replacement or abandonment of claims”.
(d)whilst YMAC’s submissions included two summary tables setting out its position on who are the relevant holders of privilege depending on whether the holder is considered to be the “applicant” or the “common law holders”, ultimately YMAC submitted (at [19]):
For the reasons set out in these submissions, YMAC submits that:
(a) the Court should find that the holder of:
i. legal professional privilege in the Sackett Reports are the members of the former Innawonga, GMY claim groups and Yinhawangka members of the former Innawonga Bunjima claim group (who are now determined Yinhawangka common law holders); and
ii. without prejudice privilege in the Sackett Reports are the members of the former Yinhawangka A and B claim groups (who are now the determined Yinhawangka common law holders) and the State in respect of the Sackett Connection Report and, at least the members of the former GMY claim group) in respect of both reports; but
(b)inspection should not be granted as none of the former claim group members, Applicants or common law holders have consented to any waiver of privilege and at least the former GMY members/Applicant will not consent to any waiver of privilege.
The Yinhawangka Gobawarrah applicant, Jurruru applicant and the State filed supplementary written submissions on 9 September 2019, which also responded to YMAC’s supplementary written submissions.
The Yinhawangka Gobawarrah applicant submitted, in summary:
(a)that it agrees and adopts YMAC’s supplementary submissions at [8], [10] and [12]-[19] (which includes YMAC’s contentions on who should be found to hold legal professional privilege and without prejudice privilege in the Sackett reports);
(b)it is unlikely a native title applicant can hold privilege, unless it is holding it on behalf of a claim group;
(c)when briefing Dr Sackett to prepare the Sackett Connection Report and Sackett Overlap Report, YMAC was doing so “on behalf of those persons ‘who may hold native title’ as part of its ‘facilitation and assistance functions’ as defined in ss 203BB(1) and 203BJ(b)” of the Native Title Act;
(d)alternatively, YMAC itself may hold privilege in the documents (“in its own right as principal and not as agent”), pursuant to its powers under s 203BJ(b); and
(e)common interest privilege may also apply, should the Court consider “the three Yinhawangka claim groups together hold the privilege, or with YMAC”.
The Jurruru applicant submitted, in summary:
(a)that the analysis in YMAC’s supplementary written submissions, which focuses on whether the claim groups, applicants or common law holders may assert privilege in the Sackett reports, should not be accepted;
(b)the question of who can assert privilege in the documents does not arise in the present circumstances because there is no subsisting privilege in the documents; however, if privilege can now be asserted (and waived), the relevant holder of privilege in both of the Sackett reports is the Yinhawangka prescribed body corporate (Yinhawangka PBC);
(c)privilege, if it subsists, can no longer be held by the applicants in the Innawonga, Gobawarrah Minduarra Yinhawanga (GMY) or Innawonga Bunjima (IB) claims because “they no longer exist in that capacity”;
(d)privilege cannot be held by a native title applicant, nor by claim group members or common law holders (post-determination) because all of these are natural persons and eventually all will pass away, so it cannot be appropriate for any privilege to be held by them in such circumstances; and
(e)if there is no legal professional privilege or without prejudice privilege in the Sackett reports, it is “unnecessary and undesirable” to “articulate a general principle as to who holds [the relevant privilege] in this case”.
The State submitted, in summary:
(a)similarly to the Jurruru applicant, that to the extent legal professional privilege and without prejudice privilege subsist in the Sackett reports, “the most logical entity now able to assert, rely upon and waive any privilege” is the Yinhawangka PBC;
(b)it does not agree with the analysis in YMAC’s supplementary submissions at [3]-[17]; and
(c)even if the Innawonga, GMY or IB claim groups (or some of their members) were the relevant holders of privilege, “those applicants and their respective claim groups no longer exist, so none of them can assert or rely upon LPP or WPP now, certainly at least in any useful, practical sense”.
Before concluding this section of my reasons, it is appropriate to note that, despite the way YMAC put its supplementary written submissions, the lawyer representing YMAC made it clear at the hearing that YMAC had not sought, or attempted to seek, instructions from the claim groups it asserts hold the privilege, or from the Yinhawangka common law holders. YMAC’s lawyer contended such a process would be a “massive undertaking”, and to the extent that members of the Yinhawangka Gobawarrah claim group are also common law holders on the Yinhawangka determination, their attitude (and opposition to production) is known to the Court. I note also that YMAC’s supplementary submissions neither addressed nor clarified any of the crucial matters to which I have referred at [35] above: namely, whether all claimants as individuals would hold the asserted privilege, or would hold it in some collective way, and how the “will” of any individuals, or any collective “group”, would be ascertained, or from whom instructions would be sought, and in what fashion.
Conclusion on who holds the privilege
The parties were reluctant, in their supplementary written submissions, to acknowledge the Court needs to decide the question of who holds, or held, either of the privileges asserted by YMAC as answers to the production of the Sackett reports. YMAC in particular positively submitted the Court should not decide the question, all the while continuing to assert both privileges.
I do not consider it is possible to determine YMAC’s objection to production of the Sackett reports without identifying who holds, or held, the privilege it contends attached, and continues to attach, to both reports. Contrary to some of the suggestions in the supplementary written submissions about another course that could have been taken, YMAC does not and never has asserted it is itself, in the performance of one or other of its functions under Div 3 of Pt 11 of the Native Title Act, the holder of the privilege it asserts in the two documents.
Since YMAC continues to assert that two privileges exist in each report, they must be held by somebody. Identifying who that “somebody” is, on the evidence, and as a matter of fact, will assist in resolving whether either asserted privilege exists at all. It will obviously assist in resolving any issue of waiver. While, as I explain below, I have ultimately reached conclusions which align best with the Jurruru applicant’s submissions, I do not accept it would be appropriate to take a “short cut” to those conclusions by ignoring the debate over who holds the privilege.
However, contrary to the supplementary written submissions of the Jurruru applicant at [8], the determination of this question is not for the purpose of articulating any “general principle”, but rather for identifying what is necessary to resolve the particular objections of YMAC to the production of the two Sackett reports. It may well be, as the Jurruru applicant’s supplementary written submissions contend at [10], that there are a number of circumstances under which an expert anthropological report might come into existence, and each distinct factual circumstance will inform (and perhaps determine) who holds, and can assert, any privilege. As the decision in Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817 makes clear, a representative body may itself hold an asserted privilege. Despite the Yinhawangka Gobawarrah applicant seeking belatedly to add this as another basis for resisting production, a Pappin-like argument is not YMAC’s contention here, and it is the subpoenaed entity.
My conclusion is that where, at the time of the creation of both Sackett reports, there was an undetermined claim to native title under s 61 of the Native Title Act, and an expert anthropological report is contended to have been created for the dominant purpose of use in the proceeding constituting that claim, the holder of any privilege that is proven to exist is likely to be the relevant applicant, as identified for the purposes of s 61. Those persons constituting the applicant can give instructions to their legal representatives, jointly and in accordance with their authorisation by the claim group (but also taking into account the terms of s 62A about the extent of their authority), about the maintenance or waiver of the privilege in the same way they give any other instructions to their legal representatives about the conduct of a proceeding under s 61.
Where it is contended that an expert anthropological report was, or formed part of, a confidential communication between parties for the purposes of settling a native title proceeding made under s 61 of the Native Title Act, if the communication was on behalf of the s 61 applicant, then the holder of any without prejudice privilege must again, in my opinion, be that applicant, as the party identified for the purposes of a s 61 application.
Where a claim has been determined, and a prescribed body corporate established (as here with the Yinhawangka claims), it seems to me that the only rational and workable way to approach the operation of the law of privilege in anthropological reports, in the context of the Native Title Act, is to see any asserted legal professional privilege and any asserted without prejudice privilege, in a communication or document created during a s 61 proceeding, as passing from the relevant applicant to the relevant prescribed body corporate, subject to any arguments about loss or waiver. The relevant prescribed body corporate, in this situation, would hold any privilege asserted to still exist in a communication or a document created during the s 61 proceeding. The maintenance or waiver of any asserted privilege would then be subject to the usual decision-making processes of that prescribed body corporate, in accordance with its constitution and rule book, in the same way other decisions about giving instructions to legal representatives might be given. I emphasise, however, that each case will turn very much on its own facts in terms of what communications or documents might still be subject to a claim of some kind of privilege post-determination. Each assertion of any such privilege would need to be proven in the usual way, and the rules about waiver would still apply, and might well encompass an examination of the conduct of a s 61 applicant prior to any determination.
In reaching these conclusions, it should not be assumed I am making a positive finding that individual claim group members are not, for any purpose, the “client” of a lawyer who represents the native title applicant for the purposes of a claim brought under s 61 of the Native Title Act. There are a range of ethical and professional duties owed by a lawyer to her or his “client” which may well attach and extend to those duties being owed to individual claim group members, as much as they are owed to the people who, jointly, constitute the applicant. Once again, the circumstances presented by the Native Title Act are unique, and call for careful consideration of how existing legal principle applies to those circumstances. I make no exhaustive findings on these matters: the only findings I make are those which I consider necessary, as a matter of fact, to determine the claims to legal professional privilege and without prejudice privilege made by YMAC. To determine those, it is necessary to determine who, in relation to the Sackett Connection Report and the Sackett Overlap Report, was the “client” of the lawyer or lawyers within YMAC who were acting at the time the Sackett reports were created, and where (as is the case here, at least on some of the submissions) that “client” may no longer exist, what has happened to any privilege asserted to exist.
I do note, however, that irrespective of whoever YMAC asserts is the “client” of the solicitor or solicitors within YMAC who were acting as the legal representatives at the relevant time, neither YMAC nor any individual solicitor appears on the evidence to have approached any “client” to seek instructions about the position YMAC should take in answer to the subpoena, or on whether any asserted existing privilege should be waived. As the evidence in this case reveals, there may indeed have been express waivers, one assumes, on instructions.
When what is in issue are documents created almost a decade ago, in very different legal circumstances, I doubt any notion of “implied” instructions, or ostensible authority, can operate: cf the Jurruru applicant’s supplementary written submissions at [13]. To adopt such a broad approach to “implied instructions” also appears to deny the autonomy and role of the individual claim group members, or common law holders, that I had apprehended YMAC’s submissions on who holds any privilege were in part designed to support. Adopting the approach I prefer (to focus on a s 61 applicant and any prescribed body corporate), it may also deny the autonomy of the applicant, and its members acting jointly, and the autonomy of any prescribed body corporate.
It is also not apparent from the evidence what role has been played by YMAC (as a representative body and “custodian” of the Sackett reports) in relation to the other pre-existing anthropological reports which have now been freely exchanged as between the Jurruru applicant and the Yinhawangka Gobawarrah applicant. Obviously individual lawyer(s) within YMAC, who act for the Jurruru applicant, have been closely involved in decisions about this exchange, and have produced some of the pre-existing anthropological reports now handed over to the Yinhawangka Gobawarrah applicant’s lawyers. From whose custody within YMAC those reports were produced is unclear, although the email correspondence in Mr Young’s affidavit at Annexure “GY5” says the reports were exchanged “via YMAC”. It appears that during this exchange in November 2018, all concerned (including YMAC) appeared to accept that whatever privilege existed in the earlier reports of Dr Palmer, and the earlier reports of Dr Kenny, could be waived without anyone having to convene a claim group meeting, or a meeting of common law holders. It is unclear on the evidence whether any instructions from any s 61 applicant (or the Yinhawangka PBC) were sought.
Accordingly, I proceed on the basis that, at the time the Sackett Connection Report and the Sackett Overlap Report were created, or at the time relevant events occurred (such as any communication attaching or including the Sackett Connection report or the Sackett Overlap Report which could give rise to without prejudice privilege), the holder of the asserted privilege was likely to be the relevant s 61 applicant for a determination of native title.
Can the GMY and the Yinhawangka Gobawarrah be treated as “the same”
Various submissions were made by the parties and YMAC on this topic. Mr Meegan’s evidence (at [17] and [35]) is sparse, but it suggests that the members of the GMY claim group (when it existed and was represented by the GMY applicant) and the members of the Yinhawangka Gobawarrah claim group (since 2016, as represented by the Yinhawangka Gobawarrah applicant) are also Yinhawangka common law holders, and were members of the Yinhawangka claim groups. Indeed, as Mr Roy Tommy deposes, he is a director of the Yinhawangka PBC.
Counsel for the Yinhawangka Gobawarrah applicant clarified during oral submissions that the members of the applicant for the GMY claim, and the members of the applicant for the Yinhawangka Gobawarrah claim, had some commonalities, but were not identical. In part that may be because some key GMY elders passed away before the GMY claim was dismissed and therefore before the Yinhawangka Gobawarrah claim was filed. It is also apparent that the claim group membership was differently described as between the GMY claim and the Yinhawangka Gobawarrah claim. The GMY claim described the claim group by reference to named individuals. The Yinhawangka Gobawarrah claim describes the claim group by reference to two sets of Yinhawangka apical ancestors. I accept Mr Meegan’s evidence may well be correct when it characterises this as a “significant if not perfect overlap” in claim group members.
In the separate question, it is an agreed fact (at [30] of the amended agreed statement of facts) that the Yinhawangka Gobawarrah claim follows the boundary of the GMY claim.
Accordingly, I accept there is a sufficient evidentiary basis to conclude, as YMAC and the parties submitted, that the GMY claim group and the Yinhawangka Gobawarrah claim group can be treated as composed of essentially the same people, and the GMY applicant and the Yinhawangka Gobawarrah applicant can be treated as representing essentially the same claim group.
Sackett Connection Report
Factual findings
The evidence is that Dr Sackett was retained to prepare a connection report in late 2007. Mr Meegan deposed that it was September, but I note the retainer is signed by YMAC’s Executive Director on 2 October 2007. The retainer was annexed to Mr Meegan’s affidavit. Clause 2.2 provided that Dr Sackett’s task was set out in Schedule 3 to the retainer. It is clear that should be a reference to Schedule 2. Clause 2.8 was a confidentiality clause which, amongst other things, purported to require Dr Sackett to keep confidential “all material, information and communications obtained from and pertaining to the Consultancy”. Clause 4 purported to vest all intellectual property in material and information, and any report produced, in YMAC. YMAC did not rely on any of these clauses in argument, or to resist production of the report.
Schedule 2 described Dr Sackett’s task by first identifying the native title claims which had, by this stage in late 2007, been filed with the Court, and went on to describe what his principal focus was to be:
This schedule to your contract provides you with a formal brief detailing the work you are required to perform in relation to the Pilbara Connection Project. This primarily concerns the native title claims entitled: Innawonga native title claim, with Federal Court designation WAD 6285/98; Gobawarrah Minduarra Yinhawanga native title claim, with Federal Court designation WAD 6173/98; and Innawonga Bunjima native title claim, with Federal Court Designation WAD 6096/89 (“the Claims”). The latter claim is brought jointly between persons who identify as Banyjima and persons who identify as Yinhawangka. The assessment of the native title rights and interests of those members of the Innawonga Bunjima native title claim group who identify as Banyjima will be the subject of a separate brief to another researcher.
…
The consultancy work sought from you in relation to Yinhawangka (including Innawonga and Gobawarrah Minduarra Yinhawanga) is part of this larger project, which will include expert anthropological research concerning the contemporary system(s) of Law in the region as a whole.
…
Your report then may not relate solely to the area the subject of an existing claim, but provides an opinion as to an area or areas which, in accordance with the ethnographic data, appear to be the subject of one or more native titles held by one or more groupings of Yinhawangka.
…
The researcher should bear in mind that the report is intended to provide an expert opinion which will assist in providing advice to applicants for native title and perhaps ultimately a court in determining (with the consent of other parties or following a trial) in accordance with section 225 of the Native Title Act 1993 (Cth) (NTA) whether or not native title exists in relation to a particular area…
(Emphasis added.)
The Jurruru applicant placed some emphasis on passages in the retainer such as the final passage in the above extract, submitting it was clear from when he was retained that Dr Sackett might eventually become an expert witness in a trial on connection. I accept the Jurruru applicant’s submission that there were several passages in Schedule 2 which made it clear this was one eventuality clearly contemplated as within the terms of the retainer. I find it is likely that this additional purpose remained in contemplation when Dr Sackett created the version of his report which he provided to YMAC in October 2010.
The chronology filed by YMAC reveals that the IB claim was filed in June 1996, the GMY claim in June 1997 and the Innawonga claim in September 1998. These dates do not appear to be disputed.
Although Mr Meegan deposed that “[t]he Innawonga people in the IB claim were mostly the same as those in the Innawonga claim and mostly met as part of the Innawonga claim group in relation to Innawonga connection research matters”, it is apparent they had their own claim filed under s 61 of the Native Title Act, identifying with Bunjima/Banjima People. It is unclear whether when Mr Meegan uses the term “Innawonga”, he is describing the same group of people as those he means when he uses the term “Yinhawangka”.
Mr Meegan’s evidence, and the chronology produced by YMAC, reveal that Dr Sackett “provided preliminary reports and drafts of Sackett Connection Report to YMAC and presented to the GMY and Innawonga native title claim groups” between 2008 and 2010. That much appears tolerably clearly established on the evidence.
Thereafter, the evidence becomes less clear.
The YMAC chronology states that on 1 May 2010, the combined Innawonga and GMY claim groups “authorised YMAC to provide the Sackett Connection Report to the State”. However, on Mr Meegan’s evidence, the report was not by this time a finalised document and therefore it is rather unclear which “Sackett Connection Report” is being referred to in this chronology entry.
Mr Meegan’s evidence at [14] of his affidavit is that Dr Sackett “finalised the Sackett Connection Report in late 2011”. That evidence is also difficult to reconcile with the chronology and other evidence.
Whatever version was authorised by the claim groups in May 2010 may not have been identical to the version provided to the State over a year later. There is also no evidence from Mr Meegan about what work the adjective “finalised” does in this sentence, especially when considered in light of the other evidence to which I refer at [104] below.
It would appear that at least in part due to the work Dr Sackett had been doing, from mid- to late 2010, the members of the various claim groups decided to reformulate their claims to native title. Mr Meegan deposes that:
In 2010, members of the Innawonga, the Innawonga of IB and the GMY claim groups resolved to combine their claims and re-apply for a native title determination as the Yinhawangka claim group. Their claim was brought in two parts because it involved amendments and combinations of different claims.
On 12 August 2010, the Yinhawangka Part B application was filed with the Federal Court (WAD216/2014).
On 11 November 2010, the Yinhawangka Part A application was filed with the Federal Court (WAD 340/2010).
By an order of the Court dated 12 August 2010, the GMY Application was amended to reduce the claim to the part that would not be covered by the Yinhawangka Part B Application.
Reference must then be made to a communication from Dr Sackett himself to Judicial Registrar McGregor on 1 March 2019, annexed to Mr Cummins’ affidavit. That communication from Dr Sackett states:
a.On 13 September 2007, I was briefed (by then) Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (subsequently Yamatji Marlpa Aboriginal Corporation) to prepare a report in support of the Yinhawangka claim group.
b.On 20 February 2010, I was asked (by now) Yamatji Marlpa Aboriginal Corporation to prepare a report on the Gobawarrah Minduarra Yinhawangka and Jurruru Overlap.
c.On 20 October 2010, I provided my Yinhawangka Native Title Claim: Connection Report to Yamatji Marlpa Aboriginal Corporation.
d.On 20 October 2010, I also provided my report on the Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area to Yamatji Marlpa Aboriginal Corporation.
e.On 18 July 2017 the Yinhawangka Native Title Claim was determined by consent (see Bromberg J Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801).
These dates and descriptions in (c) and (d) above align with the titles of the two documents in issue.
Yet Mr Meegan deposes (at [16] of his affidavit) that the Sackett Connection Report was “provided” to the State in support of the Yinhawangka native title claims on 15 November 2011, more than a year after Dr Sackett provided it to YMAC.
Mr Meegan also deposes that:
(a)the Sackett Connection Report has never been tendered in a proceeding; and
(b)solicitors within YMAC ceased acting for the GMY applicant in March 2011.
Taking into account Dr Sackett’s communication set out at [104] above, the titles of the documents sought by the subpoena, the correlation between those titles and Dr Sackett’s communication and the fact that YMAC has never submitted to the Court that there is a version of Dr Sackett’s Connection Report bearing a later date than 2010, it is difficult to know what to make of Mr Meegan’s evidence that Dr Sackett “finalised” his report in late 2011. This seems incongruous, and inconsistent with the rest of the evidence. The Court would have expected YMAC to make a clear disclosure to the Court and the parties if there was a later, 2011, version of Dr Sackett’s report. Dr Sackett himself does not mention one.
All parties, and YMAC, submit that if, contrary to the findings I have made, without prejudice privilege did exist in the Sackett Overlap Report, then it has not been waived. That is, the parties and YMAC contend, there has been no conduct by the GMY or the Yinhawangka Gobawarrah which could constitute an express or implied waiver of the privilege, unlike the situation with the alleged legal professional privilege in the Sackett Connection Report and the provision of the report to the State. The assumption by the parties (including the Jurruru applicant) and YMAC appears to be that since Dr Sackett’s work, from the start of his retainer, had a focus on the Innawonga/Yinhawangka Peoples, neither the Jurruru applicant nor the Jurruru People could be considered the “client” or the “party” for the purposes of any assertion of privilege: see, for example, the Jurruru applicant’s supplementary written submissions at [16].
If, contrary to my opinion, without prejudice privilege could and did attach to the Sackett Overlap Report, I would have found it should be treated as impliedly waived. As I have noted above, and again at [234]-[249] below, there were exchanges of a number of pre-existing anthropological reports between the Yinhawangka Gobawarrah and the Jurruru in November 2018, for the purposes of those reports being used in the separate question proceedings. What was exchanged included the Yinhawangka Gobawarrah’s and Jurruru’s different versions of Dr Kenny’s 2010 report, and her accompanying field notes. Those exchanges occurred on the basis of express waivers by all concerned of any privilege in those pre-existing reports.
Thus, the parties have all agreed to waive whatever privilege there was in Dr Kenny’s 2010 report, which is – of course – the report that YMAC contends was the actual early neutral evaluation, for which the Sackett Overlap Report was a source (in some unspecified way). If without prejudice privilege – assuming for current purposes against my own findings that it existed – was waived in the principal, lead expert report of Dr Kenny, then it would be inconsistent for any party to seek to maintain the same privilege in one of the sources said to have been consulted by Dr Kenny. It is inconsistent for YMAC to do so (as “custodian”, having agreed to send the Yinhawangka Gobawarrah and the Jurruru all the other pre-existing reports in November 2018) and it would be equally inconsistent for the Yinhawangka Gobawarrah to maintain any privilege (as they apparently wish to).
The Yinhawangka Gobawarrah reply submission about common interest privilege
Independently of YMAC, the Yinhawangka Gobawarrah applicant raised a contention about what counsel described as “common interest privilege”, submitting this privilege existed in relation to the Sackett Overlap Report. Counsel relied on Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; 39 NSWLR 601 at 607-610. YMAC did not rely on such an argument.
Farrow was a decision concerning legal professional privilege, in the context of an underlying cause of action about a loan agreement made prior to the winding up of a company said to be the debtor. The appellant Farrow commenced proceedings aimed at establishing the directors of the company were jointly and severally liable for the whole of the debt. There were eight documents in the custody of the liquidator of the company which had been created by the company’s solicitors. The documents were made available by the liquidator to Farrow for use in the procurement of an expert accountancy report relevant to the liability of the individual directors. The question was whether Farrow could be restrained by the individual directors from using any information in the documents on the grounds they attracted legal professional privilege, held by the directors. At trial, it was held that the privilege would be available “not only to the person who retained the solicitor but also to those who had a common interest with that person or believed on reasonable grounds that the person giving the advice was his or her solicitor”, but the trial judge concluded that there was no evidence the directors ever thought or had reasonable grounds to believe the company’s solicitors were their solicitors. However, the trial judge held they did have “joint privilege” in the documents, which had not been waived. The Court of Appeal decision discusses, amongst other matters, the difference at common law between legal professional privilege held jointly, and legal professional privilege held by those with a common interest.
In oral submissions, counsel for the Yinhawangka Gobawarrah appeared to contend that communications made with Dr Sackett regarding his brief to prepare the Sackett Overlap Report, and the report itself, are subject to “common interest privilege” held at least by YMAC, the GMY applicant and the current Yinhawangka Gobawarrah applicant. Recalling this is dealing with the Overlap Report, the Jurruru applicant or claim group appear to be excluded from this common interest, although at least on one rendition of the position of YMAC, the Sackett Overlap Report was prepared to resolve a dispute between the Jurruru and the GMY, later the Yinhawangka Gobawarrah. Counsel relied on the commonality of membership between the Yinhawangka Gobawarrah and GMY applicants, and referred to three of the members of the current Yinhawangka Gobawarrah applicant having been members of the former GMY applicant. Counsel submitted that in such circumstances:
… my clients, as applicants, they also have that common interest in the proceedings in the GMY case. And that report in relation to the overlap, we submit, is our privilege. And if it’s shared with YMAC, it’s shared, but it can’t be waived by one party alone.
In its supplementary written submissions, the Yinhawangka Gobawarrah applicant continued to press its contentions regarding common interest privilege (at [12]-[13]):
If the Court is minded that the three Yinhawangka claim groups together hold the privilege, or with YMAC, then common interest privilege may apply in the circumstances. Common interest privilege arises where parties have a shared or similar interest in the subject of the communication. In this case the communication is the Sackett reports.
Further, joint privilege arises in circumstances where two or more persons join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. In native title the legal adviser is often solicitors employed by representative bodies. The privilege that protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one in severable right. Common interest privilege is not limited to litigation or anticipated litigation and it is not necessary that parties have a common solicitor; Lane v Admedus Regen Pty Limited [2016] FCA 864 at [27]-[30]. A waiver of privilege must be by both or all of the persons in whose benefit the joint or common interest privilege resides: Farrow 608 - 612. It is submitted that unless the privilege is waived by all those who holds it then it remains privileged.
(Footnotes omitted.)
Common interest may exist in a species of privilege known to the law, but it is not in itself a separate privilege, as at times the Yinhawangka Gobawarrah applicant’s submissions appeared to suggest. The way a claim of a common interest in a privilege might arise was explained by Giles J in Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279-280, having already referred to a number of authorities:
If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege. Some remarks in the earlier English cases suggested that the parties must have a common solicitor, but I do not think that is necessary (apart from my view expressed in Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd; see also Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (“The Good Luck”) and Rank Film Distributors Ltd v ENT Ltd). If Capital Television Holdings Ltd and ANZ had the requisite common interest, then (subject only to any significance in ANZ’s failure to claim legal professional privilege) the copy of the letter of advice in the hands of ANZ B would be privileged and, as already indicated, there would be no waiver of the privilege attached to the letter of advice in the hands of Capital Television Holdings Ltd.
This argument could only assist if I had found there to be, relevantly, legal professional privilege or without prejudice privilege in the Sackett Overlap Report. I have found neither privilege was attached to the Sackett Overlap Report.
Further, the cases which discuss this concept, including Farrow, pertain to circumstances where those with a common interest in the privilege are involved at the time the document containing legal advice is created, or at the time the communications giving rise to without prejudice privilege are made. That is not the case here: Yinhawangka Gobawarrah is a successor claim group to GMY. The Yinhawangka Gobawarrah applicant was not involved in the creation of the Sackett Overlap Report. Neither was the GMY applicant. Neither were the individual claim group members of either claim. There is no factual basis for this argument, even assuming in favour of the Yinhawangka Gobawarrah they can make an argument resisting a subpoena where the resisting party does not object on the basis of common interest privilege, although it could have.
In its supplementary written submissions, the Yinhawangka Gobawarrah applicant also advanced a submission, based on Griffiths J’s decision in Pappin, that YMAC itself, as a representative body, held privilege in the Sackett reports. As I have noted, YMAC did not advance any such submission, and Mr Meegan’s evidence did not seek to address or support any such contention. It is YMAC which has possession of the reports and is answering the subpoena: it is a matter for it to prove the basis on which it resists production. It has done so by relying on two privileges which it contends reside not with itself, but as between its lawyers and various “clients”. That is the basis on which its objection will be determined. Aside from YMAC not raising this as an argument, there is no evidentiary basis for it in any event.
The position of the Yinhawangka Aboriginal Corporation
In his affidavit at [11], Mr Cummins deposes:
On 1 March 2019 I became aware, via an email from Judicial Registrar McGregor, that the legal representative of the Yinhawangka Aboriginal Corporation (the Prescribed Body Corporate for the Yinhawangka common law native title holders) had raised objections to the provision of the reports of Dr Sackett that are now subject to subpoena (Sackett Reports). Annexed and marked “AC47” is a true copy of this email.
(Original emphasis.)
Mr Roy Tommy also deposes to his position, as a director of the YAC:
YMAC has never provided either the Sackett Overlap Report or the Yinhawangka Connection Report (together, the Sackett Reports) to the Yinhawangka Part and Part B applicants / claim group, the GMY applicant / claim group, YAC, the Yinhawangka common law native title holders or the YG applicant. I have never seen the Sackett Reports.
(Original emphasis.)
However, there is no direct evidence about the position of the YAC. The Court cannot speculate or assume whether its directors, as a group, or voting as a majority (or whatever process the Corporation’s rules prescribe) have adopted a firm position on the production of the Sackett reports, in the context of their production for use in the separate question proceedings. YMAC rejects (at least in its supplementary written submissions) the proposition that a prescribed body corporate can be a privilege holder, although the Jurruru applicant and the State accept that if privilege exists in either Sackett report, it resides with the YAC.
Accordingly, there is no evidentiary basis on which the Court can take into account any asserted fact about the position of the YAC as a whole, as opposed to Mr Tommy’s view as an individual director. Mr Tommy’s view as an individual director is not probative of the Corporation’s position. There was also no appearance for the YAC at the interlocutory hearing. There is an evidentiary gap. That does not assist YMAC’s task of proof.
OTHER EXPRESS WAIVERS AND THEIR EFFECTS ON THE SACKETT OVERLAP REPORT
What I say in this section of my reasons applies principally to the Sackett Overlap Report. That is because on the evidence (and really one need go no further than its title) this report is likely to be of material importance to the Court in understanding the various expert opinions about who, if anyone, holds native title rights and interests in the overlap area. The importance of the Sackett Connection Report is less clear. However, I do not discount that what I say below could be applied to the Sackett Connection Report as well.
One of the curious features of the parties’ arguments on this application, and of YMAC’s position, relates to the fate of other pre-existing anthropological reports relevant to the overlap area. The affidavit of Mr Young at [6]-[16] sets out the circumstances leading up to, and concerning, the exchange of that material, and annexes the relevant correspondence between the parties. I note that Mr Cummins also refers to this exchange of material at [6] of his affidavit.
Mr Young deposes that a notice to produce was served by the Yinhawangka Gobawarrah applicant on the Jurruru applicant on 12 November 2018, seeking production of “various reports produced by Dr Kingsley Palmer”. I pause here to note, and find, that this exchange began with the Yinhawangka Gobawarrah applicant – or claim group, it matters not for this purpose – seeking pre-existing anthropological reports relevant to the dispute about the overlap area, and it appeared to recognise those reports could be the subject of a claim for privilege by the Jurruru. That is, for its own forensic purposes in advancing the Yinhawangka Gobawarrah claim to the overlap area, the Yinhawangka Gobawarrah applicant/claim group initiated and actively pursued access to pre-existing anthropological reports held by the opposing party, so that the Yinhawangka Gobawarrah could make use of those reports.
Mr Young’s evidence is that, in order to avoid litigation, and as a result of a “mutual waiver of without prejudice privilege” by the Yinhawangka Gobawarrah applicant, the Jurruru applicant and the State, the parties agreed to the exchange of the following material on 21-22 November 2018 (at [13], [15] and [16]):
On 21 November 2018, I emailed Mr Cummins, attaching copies of the following documents:
(a)notes of Dr Kenny’s field research with Jurruru between 31 October and 6 November 2010;
(b)a redacted joint report for Jurruru and GMY, dated 9 December 2010;
(c)a subsequent brief for Dr Kenny to prepare a report for Jurruru, undated but appearing to have been prepared on or about 28 April 2011; and
(d)Dr Kenny’s separate report for Jurruru, dated 27 May 2011.
Attached to this affidavit and marked ‘GY9’ is a true copy of my email of 21 November 2018.
…
On 21 November 2018, Mr Cummins emailed me, attaching three Dr Kenny documents and requesting that I email the Palmer reports. Attached to this affidavit and marked ‘GY11’ is a true and correct copy of Mr Cummins’ email of 21 November 2018.
On 22 November 2018, I emailed Mr Cummins, attaching the following Dr Palmer materials:
(a) Palmer 2007 connection report, with appendices;
(b) Palmer 2008 overlap report; and
(c) Palmer consolidated field notes.
Attached to this affidavit and marked ‘GY12’ is a true and correct copy of my email dated 22 November 2018.
The “three Dr Kenny documents” provided by Mr Cummins to Mr Young on 21 November 2018, and contained in the attachments to the email correspondence in Annexure “GY11”, were identified in the list of attachments as:
(a) 101209 Kenny overlap Report Jur-GMY for GMY lawyer;
(b) Kenny field report Nov 2010; and
(c) YMAC brief to Kenny.
The document in (a) above must be the 2010 Kenny report, as redacted for the GMY applicant. It should be made clear that the Court accepts this evidence at face value: that is, that each of the Jurruru applicant, the Yinhawangka Gobawarrah applicant and the State asserted without prejudice privilege in these “connection materials” (as Mr Young described them), and mutually agreed to waive it. The Court does not, by accepting that evidence, accept that any of the documents exchanged were as a matter of law and fact subject to without prejudice privilege.
Critically, Mr Young’s correspondence to Mr Cummins on 19 November 2018 (at Annexure “GY4”) states:
However in order to avoid the time and cost of litigation in relation to your client’s notice, and to ensure Dr. McGrath and Dr. Vachon have access to all relevant information, the Second and Third Applicants propose that the First, Second and Third Applicants and the State jointly consent to both experts being provided with all the connection material in relation to the Jurruru, GMY and Yinhawangka claims, and that without prejudice privilege be waived by all parties in relation to all that material.
(Emphasis added.)
In his affidavit, Mr Cummins does not directly dispute that these were the purposes and the terms of the agreement. He does depose that he was not aware of the 2011 Kenny report when this agreement was made. In my opinion, that is irrelevant. As is now common ground, privilege in that report (if it existed) was held by the Jurruru applicant.
Obviously, Mr Cummins also did not physically have a copy of the Sackett Overlap Report to exchange, nor did the Jurruru.
Nevertheless, I accept the Jurruru applicant’s submission that the intention was to waive privilege in all relevant connection materials.
If it had been necessary to do so to resolve YMAC’s objections, I would have been prepared to find that any privilege which did exist in the Sackett Overlap Report had been impliedly waived by the conduct of the Yinhawangka Gobawarrah applicant and the Jurruru applicant, with the assistance of the State, in exchanging and permitting access to these other pre-existing anthropological reports, at least two of which are of the same character as the Sackett Overlap Report: namely Dr Palmer’s 2008 overlap report, and Dr Kenny’s 2010 overlap report. Both reports deal with the area of land and waters that is the subject of the separate question. Both were prepared, as far as I can tell, in circumstances that were not substantively different from those under which the Sackett Overlap Report was prepared, and both were prepared under retainer arrangements from YMAC.
It would be inconsistent, and unfair, to allow YMAC (and more critically whichever client it purports to represent in making this objection) to maintain an objection based on legal professional privilege or without prejudice privilege to production of the Sackett Overlap Report in these circumstances, where it has not opposed, and indeed appears to have facilitated and agreed to, the exchange and use of two other materially similar anthropological reports.
If, contrary to the findings I have made in these reasons to this point, it was the case that the Yinhawangka Gobawarrah applicant/claim group (it matters not for this point) are able to assert some kind of privilege in the Sackett Overlap Report (whether legal professional privilege or without prejudice privilege), then in my opinion it would also be inconsistent, and unfair, in the context of the issues in dispute in this proceeding, to allow the Yinhawangka Gobawarrah applicant/claim group (given that YMAC says it is only the “custodian”) to maintain a claim to privilege. This would have the effect of handing to the Yinhawangka Gobawarrah applicant/claim group the ability to select which of the pre-existing anthropological reports it wishes the Court to see. The inconsistency is even more apparent when the bases for the agreement between the legal representatives is understood: see [240] above.
A slightly different point is made by Byrne J in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restraurants & Bars Pty Ltd [1999] QCA 276; [2001] 1 Qd R 276 at 291. There, in considering a claim for without prejudice privilege, his Honour said there must be:
…justification for contributing to the “possibility of distorting the truth determination process” through denial to tribunals of knowledge of material information.
(Footnote omitted.)
Given the parties’ conduct, there is no such justification in these circumstances, especially when the Court is called upon in this proceeding to answer separate questions that are likely to lead, if answered in favour of either party, to a determination of native title rights and interests held in rem in the overlap area. The Court is dealing with the recognition of proprietary rights and interests which have consequences beyond the Jurruru and the Yinhawangka Gobawarrah applicants.
In my opinion the conclusion that the Yinhawangka Gobawarrah applicant/claim group could not maintain any privilege in the circumstances of this case (if it existed) is also consistent with the approach taken by Mansfield J in Lake Torrens Overlap Proceedings. In this situation, parties and those asserting privilege cannot pick and choose which relevant, pre-existing, expert anthropological opinions they would like withheld, and which they would like disclosed.
CONCLUSION
Privilege
In summary, in relation to the Sackett Connection Report, I have found:
(a)no legal professional privilege exists in the report;
(b)if it did, it was waived by submission of the report to the State;
(c)no without prejudice privilege exists in the report, despite its submission to the State as part of the materials on which the State was asked to rely for the purpose of considering to agree to a consent determination;
(d)if without prejudice privilege did exist, it has not been waived expressly or impliedly by its holder, the YAC; and
(e)YMAC’s objection to production of the Sackett Connection Report should be overruled, and the Sackett Connection Report will be released by the Court to the Jurruru applicant for inspection and copying forthwith.
In relation to the Sackett Overlap Report, I have found:
(a)no legal professional privilege exists in the report;
(b)if it did, it was held by the GMY applicant, but ceased to exist when the YMAC solicitor ceased to act for the GMY and the lawyer client relationship consequently ceased, in circumstances where the report does not appear to have been provided to the GMY claim group’s new lawyer so that the purpose of keeping the document confidential as between lawyer and client could continue;
(c)no without prejudice privilege exists in the report;
(d)if it had attached, the privilege would have been waived by the conduct of the parties, including the Yinhawangka Gobawarrah applicant, with the assistance of YMAC, agreeing to the disclosure of all connection materials relating to the overlap area, and in exchanging and disclosing other pre-existing expert anthropological reports relating to the overlap area;
(e)there is no privilege held in the report by parties with a “common interest”; and
(f)YMAC’s objections to production of the Sackett Overlap Report should be overruled and the Sackett Overlap Report will be released by the Court to the Jurruru applicant for inspection and copying forthwith.
Admissibility
As I have noted, I declined to extend the subject-matter of the interlocutory hearing to a debate over the admissibility of any of (relevantly) the Sackett reports, should YMAC’s objections be overruled. I considered that to be premature, given neither the Jurruru applicant nor the Yinhawangka Gobawarrah applicant had seen the contents of the two Sackett reports.
If one or both parties to the separate question proceedings seek to adduce the Sackett reports in evidence, whether through Dr Sackett, or by asking another expert anthropologist who is called to give evidence to comment upon them, then the parties can assume I will take the same approach to any claims of privilege that are sought to be made as objections to the admissibility of either report. At present, I do not see any basis for reaching different conclusions on admissibility under the Evidence Act; however, the parties will of course be given an opportunity to be heard on any contended differences or other matters going to the admissibility of the reports, and further rulings will be made if need be.
I certify that the preceding two hundred and fifty-three (253) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 23 September 2019
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