Mortimer J
In this matter the Court considered objections by the Yamatji Marlpa Aboriginal Corporation (YMAC) to the production, and inspection, of documents under two subpoenas in relation to three proceedings, which were part heard before the Court, on a separate question.
Background
The separate question concerned an area of land and waters in the Pilbara, Western Australia, located between an area determined in favour of the Jurruru people, and an area determined in favour of the Yinhawangka People. YMAC is the representative body for the Pilbara and therefore the relevant representative body for the claims by the Jurruru People and the Yinghawangka Gobawarrah People.
The history of the proceedings can be found in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671 at [5]- [12]. See Related Content below.
Mortimer J noted that the process of hearing of the separate question had ‘been somewhat fraught, largely due to the inability of the Yinhawangka Gobawarrah (YG) applicant to secure funding for legal representation’. This frustrated the ability of the YG applicant to provide expert anthropological evidence. During preparation for the hearing of the separate question it became apparent that there were some pre-existing anthropological reports that were potentially relevant; however not all of these were made available to both parties and it was on this basis that the Jurruru applicant sought to obtain them by way of subpoena.
YMAC did not press its claim in relation to 1 subpoenaed document (Dr Kenny's 2011 report) as the Jurruru applicant is the holder of the privilege in the report. The remaining documents in question are known as the ‘Sackett Connection Report’ and the Sackett Overlap Report’.
YMAC objections to production of the Sackett reports
As "custodian", YMAC objected to the production of the reports on the basis of legal professional privilege or without prejudice privilege. Towards the end of the interlocutory hearing YMAC changed its position and alleged that the claim group (pre-determination) and common law native title holders (post-determination) held the privileges.
Her Honour noted that the general position is that a court may inspect documents over which a claim of privilege is made, if it considers it appropriate to do so. Her Honour decided not to inspect the documents as she was also presiding over the determination of a separate question in which the expert evidence in the reports was claimed to be relevant, and in seeing such evidence, it was possible that a party or the public might entertain a reasonable apprehension that the judge might not bring an unprejudiced mind to the hearing of the case.
Who holds the asserted privileges
The first step in addressing YMAC’s objections was to consider who holds the asserted legal professional or without prejudice privilege in the context of native title proceedings. Her Honour concluded, at [81-83], that:
Mortimer J concluded at [80]-[83] that:
where the anthropological reports were created for the dominant purpose of use in an undetermined claim, the holder of such privileges would be the applicant in a native title determination application lodged under s 61 of the Native Title Act 1993 (Cth) (NTA); and
where the anthropological reports formed part of confidential communication between parties in settling a native title proceeding, then if the communication was on behalf of the s 61 applicant, it is they who hold any without prejudice privilege; and
where the claim has been determined, the legal professional privilege or without prejudice privilege is be held by the prescribed body corporate determined by the Court under ss 56 and 57 of the NTA.
The Jurruru applicant submitted that the Sackett Connection Report was never subject to legal professional privilege. The Court agreed that this report had been crated for submission to the State as part of negotiations towards a consent determination and was not created to be kept from State and its dominant purpose was not to be used in adversarial proceedings in a contested claim for native title.
Conclusion
Mortimer J found that in relation to the Sackett Connection Report:
it was not, and is not, subject to legal professional privilege and even if it had been subject to legal professional privilege, it would have been waived by submission of the report to the State.
no without prejudice privilege exists in the report as the purpose of the creation and submission of the report was wider than a negotiations purpose and the parties did not contemplate the report would necessarily remain undisclosed , including to the Court and other respondents.
Mortimer J also found that in relation to the Sackett Overlap Report:
no legal professional privilege exists in the report, and , if it did, it was held by a predecessor applicant (now YG) and remained with that applicant after YMAC ceased to act for that party.
no without prejudice privilege exists in the report and, if it did attach to the report, it should be treated as impliedly waived given the privilege was waived in the principal report (Dr Kenny's 2011 report) and it would be inconsistent to seek to maintain the privilege in relation to the Sackett Overlap Report, which Dr Kenny consulted and other pre-existing anthropological reports relating to the overlap area exchanged between the parities.
The parties claim of common interest privilege in relation to the report was rejected as no legal professional privilege or without prejudice privilege was found.
Orders
The objections by the Yamatji Marlpa Aboriginal Corporation to the production, and the inspection, of the documents set out in order 2 of these orders are overruled.
the second and third applicants are granted leave forthwiith to inspect and copy the following documents:
(a) Report prepared by Dr Lee Sackett entitled “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010; and
(b) Report prepared by Dr Lee Sackett entitled “Yinhawangka Connection Report, Confidential Report to YMAC, Perth” dated 2010.
Subject to any application to be heard on the question of costs, no order as to the costs of the interlocutory hearing.