In this matter Griffiths J set aside the order to produce served by the applicant on NTSCORP Limited (NTSCORP), who is the second respondent in the proceeding. The notice to produce sought production of historical and anthropological material or research, which is identified in paragraphs 9 and 10 of a progress report relating to an earlier Muthi Muthi native title claim (NG6079/98).
The issue for determination was whether or not in retaining the research services of research consultants Mr Graham and Ms Eagle in 2004, NTSCORP was acting as principal or as agent of the applicant. Griffiths J considered the terms of an agreement dated 4 July 2004 between NTSCORP and Mr Graham (the agreement). His Honour considered that the two recitals to the agreement which refer to NTSCORP’s representative body functions under s 203FE and 203BB(2) of the Native Title Act 1993 (Cth) do not necessarily mean it was acting as agent for the native title claim group. Griffiths J considered that the organisation has the capacity in its own right and independently of a native title claim group to be a party in proceedings.
His Honour considered at [8] that except for clause 13, the balance of the agreement indicates that NSWNTS was acting in its own right as principal and not as agent: ‘That being the case, any legal professional privilege resting in the report is the privilege of NTSCORP and not some other body, including the native title claim group under the earlier native title claim.’
Clause 13 provides:
The Research Consultant shall not at any time, during the life of this agreement or thereafter, waive such privilege without the prior written consent of NSWNTS and/or the Native Title claim ground unless required to do so by law.
Griffiths J accepted the applicant’s submission that the clause should be viewed as representing a degree of overreach on the part of the draftsperson. It may be the case that the interests of the claim group and NTSCORP are disparate and it is for that reason that that any privileged communication in the report is the privilege of NTSCORP.
His Honour rejected the submissions of Mr Pappin, holding that the report is plainly a communication for the purposes of legal professional privilege and that the Muthi Muthi people are the claim group, not the applicant for both the current and previous claim.