Mansfield J
This matter was a decision about whether certain documents could be inspected. Mansfield J decided that the documents in question would be made available for inspection by the parties to the proceeding, subject to any restrictions due to cultural considerations.
The issue involved two competing applications for recognition of native title over Lake Torrens in South Australia. The native title claimants were the Kokatha People (native title holders over land to the west of Lake Torrens) and the Adnyamathanha People (native title holders over land to the east of Lake Torrens). The respondents in this matter were the State of South Australia, two mining companies, Kelaray Pty Ltd and Straits Exploration (Australia) Pty Ltd (Kelaray and Straits). The other respondents did not play any active part in the current proceeding.
The South Australia Native Title Service (SANTS), a native title representative body in South Australia, provided a range of services to the competing claimants under the Native Title Act 1993 (Cth) NTA.
Background
In December 2014 and February 2015, the Court ordered the filing and service of historical, anthropological and other expert reports held by each of the parties to the proceeding, and by SANTS. Where there was an objection to any of the listed documents being examined, the order required the relevant party to give notice of that objection.
Claim of privilege from inspection
SANTS claimed two documents should not be available for inspection at all:
the Cane Report (a report from July 2008 on Aboriginal associations with an area between Lake Torrens and Lake Gairdner) and
the Habner Report (a confidential report to the Kokatha Native Title Claim on aspects of the overlap between the Kokatha and the Barngarla Native Title Claims, produced in February 2006 for the purposes of mediation).
The Cane Report was also listed by the State and the Adnyamathanha claimants.The Habner Report was also listed by the State and SANTS. The State was willing to make these reports available for inspection if the Commonwealth and relevant claimants released restrictions on them and related reports. In practical terms, SANTS wanted to prevent access by Kelaray and Straits.
SANTS’ contentions included:
both reports are the property of SANTS and only SANTS has authority to permit the inspection of those two reports.
the reports were produced for the furtherance of settlement negotiations and therefore:
excluded from being adduced as evidence under s 131 of the Evidence Act 1995 (Cth) and
privileged and immune from discovery.
the Cane Report was immune from discovery because it was legally privileged material because it was created for the dominant purpose of providing legal advice and was commissioned while performing its dispute resolution function under s 203BF of the NTA;
the Habner Report was protected from discovery and/or inspection because it was subject to “without prejudice” privilege, having been commissioned by SANTS for the purposes of assisting settlement negotiations under s 203BF of the NTA. SANTS could not waive the privilege as it lies with its clients; and
both reports were produced to aid court ordered mediation of other matters, were confidential and had only been made available on a 'without prejudice' basis and could not be used for any other purpose.
Considerations/Decision
The Court’s considerations were varied and included a discussion of SANTS’ functions, including its function to support dispute resolution between competing claimants under the NTA. Mansfield J noted, at [25], that no provisions of the NTA dictate the status of information assembled by SANTS and that it was a matter to be determined in the particular circumstances, and on the particular facts. His Honour did not regard the Cane Report or the Habner Report as being subject to some sort of separate confidentiality entitlement because of the role that SANTS took in their preparation. Mansfield J explains at [46] that this is because the reports were provided to the State, the Commonwealth and apparently the Kuyani people, the opposing parties to the litigation. Therefore, whatever terms may have been imposed upon the usage of that material, it was not claimed that there was some condition restricting the State and/or the Commonwealth, and/or any other person who received the material from using it for the purpose of the proceeding.
As to the argument of client legal privilege, Mansfield J at [47] was of the opinion that the privilege was waived when the Cane Report was made available to each of the overlapping claim groups and their representatives and, at [50], there were no circumstances shown as to why the Habner Report, being in the possession of the State, should not now be both discoverable (as it has been) by the other parties to the Lake Torrens Overlap Proceeding.
His Honour also considered whether the Habner Report is protected from inspection by "without prejudice" privilege.
His Honour noted the foundation for this privilege is the public policy that parties should be encouraged, as far as possible, to settle their disputes without resort litigation, and should not be discouraged by the concern that anything said in the course of negotiations may be used to their detriment in the course of proceedings.
Mansfield J was of the view that the Habner Report and Cane Report were not shown to have come into existence, nor to have been provided under any express or tacit arrangement that – at the conclusion of negotiations – they should not be available for use to the benefit (or detriment) of one or other parties if the matter were not resolved by negotiation.
Consequently, his Honour found at [67] that copies of the Cane Report and the Habner Report as now "discovered" are not protected from inspection by “without prejudice” privilege.
And concluded at [71]:
In my view, those matters point strongly in favour of the Court directing (subject to the conditions referred to) that the Habner Report and the Cane Report, and consequently the other reports which allude to the contents of the Cane Report, should be available for inspection.