Dowsett J
The main issue in this case related to whether evidence could be adduced from a meeting of a native title claim group. The purpose of the meeting in question was to decide whether the descendants of a particular individual, Minnie, were entitled to be included in the claim group. The meeting was conducted in a somewhat unusual way with Justice Dowsett describing it in the following way at [2]:
'Parts of it was said to be a claim group meeting attended only by people already recognised as being members of the claim group. Other parts were conducted as a meeting contemplated by s 136A(1) of the Native Title Act 1993 (Cth) between parties in dispute, namely those espousing the cause of Minnie's descendants and the accepted members of the claim group.'
The parts of the meeting which come under s 136A(1) of the Native Title Act are privileged and evidence of these may not be presented without the agreement of the parties. Further, section 131(2)(G) of the Evidence Act 1995 (Cth) allows evidence of exchanges designed to bring about settlement of litigation,which are usually privileged, to be adduced if other evidence is likely to mislead the court.
Counsel for Minnie's family claimed that there is a possibility of confusion or a misleading effect based on the dual purposes of the meeting that was the subject of cross-examination. Justice Dowsett saw no cogent argument for implying the terms of s 131 of the Evidence Act into s 136A of the Native Title Act. Further, he found that the situation contemplated by s 131(2)(g) simply does not arise as counsel, in cross-examining the witness, made it as clear as was reasonable practicable, that he was asking about the events which occurred in the claim group meeting.