Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2)

Tommy, on behalf of the Yinhawangka Gobawarrah, filed a claim against the State of Western Australia regarding objections to the production of documents under subpoena. The documents in question are pre-existing anthropological reports, which the Yamatji Marlpa Aboriginal Corporation (YMAC) sought to withhold on the basis of legal professional privilege and without prejudice privilege. The case was heard by the Federal Court of Australia, where the court was required to determine the validity of the privilege claims and whether YMAC could maintain these privileges in the documents.

The legal issues the court needed to address involved the identification of the holders of privilege in the pre-existing anthropological reports. The court had to consider whether YMAC, as the subpoenaed party and a relevant representative body, could claim privilege in documents it held but which were created before it existed. Additionally, the court needed to decide if the privilege could be asserted by YMAC or if it resided with the Yinhawangka Aboriginal Corporation (YAC), the prescribed body corporate for the Yinhawangka common law native title holders.

The Federal Court found that YMAC's objections to the production of the Sackett reports could not be upheld. The court determined that YMAC did not hold the privilege, as the corporation had not sought instructions from the claim groups it represented or from the Yinhawangka common law holders. The court also noted that the evidence did not clarify who among the claimants held the privilege or how their collective will could be ascertained. The court ultimately concluded that the privilege, if it existed, would have to be held by the YAC, but there was insufficient evidence to determine the YAC's stance on the production of the reports. Consequently, the objections by YMAC were overruled, and the second and third applicants were granted leave to inspect and copy the Sackett reports.

In summary, the Federal Court ruled against YMAC's objections and allowed the production of the anthropological reports, finding that YMAC could not assert the privileges in question. The court's decision underscored the importance of identifying the actual holders of privilege in pre-existing documents and highlighted the evidentiary gaps that prevented YMAC from proving its claims.