Bromberg J
This proceeding related to a native title determination application over lands and waters in Western Australia. In this case, the applicant’s legal representatives (Blackshield lawyers) applied to inspect and copy a number of anthropological reports previously submitted in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455 (the Ngadju proceeding). The application to review the documents was opposed by the Ngadju Native Title Aboriginal Corporation (Ngadju NTAC) on the basis that they provided the relevant information on the understanding that it was confidential and would only be used in that proceeding.
Background
The relevant documents, filed by the applicants in the Ngadju proceeding and prepared by Dr Kingsley Palmer, were:
Anthropologists Report (2003)
Report (2009)
Anthropologist’s Responsive Report (March 2012)
The State had consented to an order providing access to two reports of Professor Basil Sansom it had filed in the Ngadju proceeding in 2004 and 2012.
Access to the reports
Anthropology Report (2003)
With regard to the Anthropology Report (2003), His Honour noted that because it was merely marked for identification and was never part of the evidence in the Ngadju proceeding, open justice principles did not support access being granted. Citing Oldham v Capgemini Australia Pty Ltd (2015) 241 FCR 397, His Honour noted that access could be granted in the exercise of the court’s discretion. However neither of the reasons provided by the applicant established a sufficient forensic purpose or utility. As a result, His Honour did not grant leave to inspect the report.
The 2009 and 2012 Reports
With regard to the other two reports (2009 and 2012), each were received into evidence and therefore formed part of the court record. His Honour accepted that because Dr Palmer had been called to give oral evidence, the content of his reports were the subject of open discussion in Court. Citing Australian Securities Investments Commission v Cassimatis (No 4) [2015] FCA 465, His Honour also noted that an announcement in Court that a report is 'read' is usually taken as deeming all of the words in the document to be treated as they had been read aloud. This is to be understood in relation to Rule 20.03 of the Federal Court Rules 2011 (Cth), which provides that once a document is 'read', any express or implied undertaking not to use the document in relation to a particular proceeding no longer applies. His Honour held ‘that the applicant had a legitimate forensic purpose, the pursuance of which is likely to be of utility to the potential disposition of the proceeding.’ That forensic purpose is set out at [7] and [8] of his judgment.
Redactions
Finally, at [43] His Honour rejected the contention made by the Ngadju NTAC that should their submissions not be accepted, an opportunity should be provided to identify and redact from Dr Palmer’s reports, information considered to be confidential. However, he ordered that insofar as the report proposed to be made by the applicant’s anthropologist contained information which referred to or reproduced information from Dr Palmer’s reports, a short opportunity would be granted to the Ngadju NTAC to seek relief with respect to potentially harmful or damaging confidential information.
Conclusion
The Court ordered that the applicant’s legal representatives be given leave to inspect and copy each of the documents listed.