Daniel v State of Western Australia [1999] FCA 1541

FEDERAL COURT OF AUSTRALIA

Daniel v State of Western Australia [1999] FCA 1541 EVIDENCE – client legal privilege – communications by applicants for native title to their expert anthropologist – subpoena for production – whether communications sought to be adduced at trial – whether communications made for sole purpose of legal advice or litigation – whether communications made for such sole purpose were confidential – whether privilege waived or to be imputed - whether unfairness in maintenance of privilege. EVIDENCE – public interest immunity – communications by applicants for native title to their expert anthropologist – whether subject to such immunity. Native Title Act 1993 (Cth) Evidence Act 1995 (Cth) s 126 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 159 ALR 664 applied Towney v Minister for Land and Water Conservation for NSW (1997) 147 ALR 402 applied Grant v Downs (1976)135 CLR 674 applied Trade Practices Commission v Sterling (1979) 36 FLR 244 cited Interchase -v- Grosvenor Hall [1999] 1 QdR 141 distinguished Attorney-General (Northern Territory) -v- Maurice (1986) 161 CLR 475 applied Commonwealth Federal Police v Propend Finance [1997] 188 CLR 501 considered Hoad v Nationwide News (1998) 19 WAR 468 considered Aboriginal Sites Protection Authority v Maurice (1986) 65 ALR 247 followed Sankey v Whitlam [1978] 142 CLR 1 applied Baker v Campbell (1983) 133 CLR 52 cited

R D NICHOLSON J 25 OCTOBER 1999 YIGAGUDARA/PYRAMID STATION WESTERN AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6017 OF 1996

BETWEEN: DANIEL & ORS.

Applicants

AND: STATE OF WESTERN AUSTRALIA & ORS.

Respondents

JUDGE: R D NICHOLSON J

DATE: 25 OCTOBER 1999

PLACE: YIGAGUDARA/PYRAMID STATION WESTERN AUSTRALIA

REASONS FOR JUDGMENT 1 I propose to give my ruling and reasons for the ruling in relation to the claim of privilege arising in relation to the subpoena for production.