McKerracher J
In this matter, McKerracher J considered whether subpoenas issued on behalf of the Yindjibarndi applicant were oppressive, whether parties to the native title proceedings could access subpoenaed materials and whether certain documents were protected from disclosure under legal professional privilege.
Subpoena
Dr Edward McDonald sought orders that a subpoena addressed to him on 12 February 2016 and an updated subpoena addressed to him on 24 February 2016 be set aside on the ground of oppression.
The Yindjibarndi applicant 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 subpoenas required Dr McDonald to materials spanning 17 years in less than 3 weeks and he would potentially be required to review several thousand hard copy and digital documents in order to comply with the subpoenas. All of this would be required within a matter of days of the hearing.
The Yindjibarndi applicant also complained that the main issue in its strike out application before the Court, and in its opposition to the joinder application at an interlocutory hearing scheduled for 8 and 9 March 2016, is that the filing of the proceeding by Eastern Guruma (the joinder applicant) is oppressive and an abuse of process due to the extreme delay in commencing the proceeding.
Given the amount of material sought and time available to produce it McKerracher J considered the subpoenas were oppressive and set them aside.
Access to subpoenaed documents
Eastern Guruma sought access to documents produced in response to subpoenas issued by the Yindjibarndi applicant. Access was opposed by the applicant on the basis that Eastern Guruma was not (yet) a party to the proceeding.
McKerracher J noted the custom, in the absence of good reason, for all parties to a proceeding to have access to documents subpoenaed by any of the parties.
The Court rejected the Yindjibarndi applicant's argument that access to the materials may give a benefit to the people who are to be cross-examined. Noting that, having regard to the very limited time between now and when cross-examination (if any) would occur, it was not apparent that such benefit is likely to be significant and the primary objective is to ensure that the fiercely fought application for joinder can be resolved as efficiently as possible in the interests of the Court, the parties and the public.
McKerracher J therefore made orders for all parties to have access to the subpoenaed documents.
Privilege
Eastern Guruma claimed legal professional privilege over some documents produced under subpoena. The Yindjibarndi applicant asked the Court to examine the documents in order to form a view as to the privilege claims.
Applying the established legal principles concerning claims of privilege McKerracher J examined all of the documents and required a small number of documents be produced as they did not fall within the conventional concepts of legal professional privilege.
Orders
Under rule 24.15 of the Federal Court Rules 2011(Cth) the Court ordered that:
2 subpoenas issued to Dr McDonald be set aside;
the Applicant is to pay Dr McDonald's costs of the application to set aside a subpoena; and
all parties and Eastern Guruma be granted access to all documents produced by subpoenas issued by the Applicant in connection with the interlocutory hearing before Rares J on 8 and 9 March 2016.