McKerracher J
In this matter, McKerracher J considered whether subpoenas filed by the Yindjibarndi people were oppressive, whether non-parties to the native title proceedings could access subpoenaed material, and whether the subpoenaed material attracted legal professional privilege.
In February 2016, the Yindjibarndi people sought materials from Dr Edward McDonald, the consultant anthropologist engaged by the East Guruma people. The Yindjibarndi people sought the materials in relation to the application brought by the East Guruma people to join the native title proceedings brought by the Yindjibarndi people to be heard on 8-9 March 2016.
The first of the subpoenas was served on 12 February 2016 and the revised subpoena narrowing the materials requested was brought on 24 February 2016. By interlocutory application, filed on 29 February 2016, Dr Edward McDonald sought orders that the subpoenas be set aside because they were oppressive in their scope. The subpoenas required Dr McDonald to produce in a short amount of time, a large amount of material spanning 17 years. Given the breadth of the material requested, the short timeframe and a failure by the applicants to adequately particularise the material requested in the subpoena, McKerracher J held that the subpoenas were oppressive and they were set aside.
The East Guruma people sought to access the documents produced pursuant to the remaining subpoenas issued against other sources by the Yindjibarndi people in relation to their application to strike out the joinder application brought by the East Guruma. McKerracher J considered that despite the East Guruma not yet being a party to the proceeding, they should have access to the documents in order to ensure that the joinder application be resolved as efficiently as possible in the interests of the Court, the parties and the public. His Honour rejected the Yindjibarndi’s argument that access to the materials may give a benefit to the witnesses to be cross-examined at the hearing of the two applications to be held four days after the hearing of the present matter. It was considered that any benefit to be gained in that short timeframe would be limited. McKerracher J ordered for all parties to have access to the subpoenaed materials.
The East Guruma people claimed legal professional privilege over some of the documents they produced under subpoena. The Yindjibarndi people asked the Court to examine the documents in order to form a view as to the privilege claims. Applying the established legal principles on this issue, his Honour required that a small number of documents be produced as they did not fall under legal professional privilege.