FEDERAL COURT OF AUSTRALIA Clarrie Smith v Western Australia [2000] FCA 526 EVIDENCE – whether notes created in the production of an expert's report are forensically relevant – whether privilege attaching to notes created in the production of an expert's report is waived by the filing of the report – whether public interest immunity applies to Aboriginal beliefs – whether a confidentiality order is adequate in the circumstances of the case Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247, considered Alister v The Queen (1984) 154 CLR 404, cited Attorney-General (NT) v Maurice (1986) 161 CLR 475, distinguished Daniel v State of Western Australia [1999] FCA 1541, not followed Esso v Commissioner of Taxation (1999) 168 ALR 123, applied Sankey v Whitlam (1978) 142 CLR 1, applied CLARRIE SMITH & ORS v THE STATE OF WESTERN AUSTRALIA & ORS WG 72 of 1998 MADGWICK J 20 APRIL 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY WG 72 of 1998 BETWEEN: CLARRIE SMITH & ORS APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: MADGWICK J DATE OF ORDER: 20 APRIL 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's legal advisers are to be granted first access to the materials produced to the Court on Subpoena dated 17 September 1999 to remove, having regard to these reasons, those materials that are not forensically relevant to the proceedings. Those legal advisers are to indicate to the respondent's legal advisers the classes of documents, if any, that they regard as irrelevant. If any dispute arises, I will deal with it, if necessary, by inspection. 2. Access to the remaining materials is to be granted to counsel, instructing solicitors and the expert anthropologist engaged by the first respondent, and counsel and instructing solicitors engaged by the third respondent. These persons may uplift only one copy of the documents, which may not be reproduced, and which will upon conclusion of the trial be returned to the Court and destroyed. No extraneous use may be made of these materials and any necessary gender restrictions will be complied with. 3. The applicants are to pay the respondents' costs of the motion. 4. Liberty is granted to apply on 48 hours notice. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY WG 72 of 1998 BETWEEN: CLARRIE SMITH & ORS APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: MADGWICK J DATE: 20 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: 1 The State of Western Australia, the first respondent in this matter, issued subpoenas directed to Dr Mana Waite, Sally Babidge and Stuart Fisher (respectively the antropologist and his research assistants engaged by the claimants to investigate their claim for native title and to produce an expert anthropological report and genealogies to be tendered as evidence in the proceedings). The subpoena seeks production of two types of documents. Clause 1 of the schedule seeks production of: "All records made of all information and data gathered for the purpose of compiling the applicants' anthropology report ["the report"], including any handwritten or electronically recorded notes, sound recordings, video recordings or any like records made of any observations made by the applicants' researchers and/or interviews or other communications made with any persons, including the applicants, who provided information for the purpose of and incidental to the compilation of the anthropologist's report, whether or not that information was ultimately included in the report". It is convenient to refer to these as "the source materials." Clause 2 of the schedule seeks production of a series of ethnographic site surveys, conducted in and around the claim area and prepared between 1996 and 1998 ("the site surveys"). Amongst these surveys are restricted reports ("the restricted reports") which the applicant claims were prepared at the request of their solicitors in anticipation of litigation under the provisions of the Aboriginal Heritage Act 1972 (WA). 2 The documents sought by the subpoena were produced to the Court on 22 September 1999, however, access has not yet been granted to any party, pending settlement negotiations which ultimately proved fruitless. Written submissions were received from the applicants, solicitors for Dr Waite, and the first respondent (these submissions were also adopted by the third respondent, "the respondents"). The applicants and Dr Waite oppose the subpoena on several grounds. First it is said that the material produced is not relevant. Second, it is claimed that the materials are subject to client legal privilege. And third it is argued that the materials are subject to public interest immunity. The respondents assert two bases for production. First it is said that no privilege or immunity attaches to the documents and, second, that even if some such restriction does apply then it has been waived by the claimants. Relevance 3 The applicants and Dr Waite argue that not all of the documents produced to the Court are relevant. All of the documents listed in the subpoena were brought to Court on the 22 September 1999, the day listed for argument of the notice of motion, and were upon order of the Court taken into the custody of the Western Australian District Registrar. In this context, contrary to the submissions of the respondents, the mere fact that the materials were produced ought not be taken to be an admission that they were all necessarily relevant to the proceedings. 4 The report was prepared pursuant to an order made by Lee J on 29 October 1998 and was filed on 1 April 1999. It is not in dispute that the applicants propose to tender it at a later date and to make Mr Waite available for cross-examination upon it. I have been invited to read it and have done so. Given the manifest relevance of the report itself, it is difficult to understand how the preparatory source materials would not also be relevant to the issues to be determined. "Relevant" in this context means relevant to legitimate forensic processes, a wider concept than the inquiry for other purposes of the law of evidence as to whether something is "relevant" to a fact in issue. In this case, I expect that issues will arise as to the reliability, including consistency, of evidence going, among other things, to the applicants' and their forebears' connection with the land in question. The source materials may well, indeed seem likely, to bear upon such matters. It appears to be "on the cards" that the documents will materially assist the defence, to adopt a phrase used by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 414 in a different context but one not lacking a degree of analogical force. It was suggested in the submissions prepared for Dr Waite that any notes that may have been taken in preparing the report can not be attributed any significance (or even meaning) by any person other than the note taker. That is not of legal significance. While considerations of this sort may affect the utility of or the weight to be attributed to a particular note, if it were sought to be introduced into evidence, they cannot deny its relevance, in the sense mentioned. Further, as submitted by the respondents, it is not only those materials that Dr Waite eventually relied upon in writing his report that are relevant. The materials which Dr Waite chose to pass over in writing his report may be of equal, or indeed even greater, forensic relevance, than those that he chose to use. Therefore, the bulk of the source materials appear to be relevant. 5 With respect to the site surveys, Dr Waite deposed that their purpose had been limited to determining whether a proposed land development would interfere with culturally sensitive places in and around the claim area. Given the limited purpose for which the site surveys were undertaken and the confidentiality undertakings made while compiling the surveys, Dr Waite did not refer to any of surveys nor rely upon them in preparing his report for this case. It was argued that therefore the surveys could not be relevant. Yet, notwithstanding the limited role that the site surveys may have played in the preparation of the report they are relevant in at least one other potentially significant way: surveys regarding the ethnographic make-up on or near the claim area are presumably of great relevance in themselves to these proceedings. Further, the reports were the subject of oral evidence by Mr Clarrie Smith, and may also be relevant for this reason. Privilege 6 Since the filing of submissions in this matter the High Court has decided Esso v Commissioner of Taxation (1999) 168 ALR 123. The general test to be applied, is whether the communications or documents in question were brought into existence for the dominant purpose of being submitted to legal advisers for advice or use in legal proceedings. 7 The applicants do not contend that privilege exists over the site surveys and it is unclear from their submissions whether Dr Waite's solicitors do. However, the matter can be dealt with briefly. Dr Waite deposed that the site surveys were produced in accordance with the provisions of the Aboriginal Heritage Act 1972 to assist the Department of Aboriginal Sites of Western Australia to make assessments of Aboriginal heritage. The dominant purpose for the production of these reports, therefore, seems to have been to comply with the Aboriginal Heritage Act, and not to provide legal advice. For this reason privilege does not apply to the site surveys. 8 However, Dr Waite claims that the restricted reports were produced in anticipation of litigation under the provisions of the Aboriginal Heritage Act. The respondent objects to the admission of the affidavit evidence of Dr Waite as to these claims. The objection seems to me to be valid. Therefore, on the evidence before me, the restricted reports do not appear to have been produced for the dominant purpose of use in proceedings and they are therefore not privileged. 9 It is unnecessary to consider whether privilege attaches to any of the source materials, because, for the reasons below, even if such a privilege existed it should be regarded as having been waived by the applicants. Waiver 10 Although the applicants concede that any privilege that may exist over the source materials would be waived when Dr Waite is called to give oral evidence to the Court, they submit that privilege was not waived by merely filing the report. 11 Waiver of privilege is to be imputed by a court when by reason of some conduct on the privilege holder's part it becomes unfair or misleading to maintain the privilege: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487. The applicant relies upon Maurice for the proposition that a mere reference to a statement contained in a disclosed document (especially where those statements are not specifically referred to) does not constitute a waiver. Further, they contend that there is nothing in the content of Dr Waite's report which suggests that it is necessary to view any other document in order to properly understand the report. 12 However, Maurice is to be distinguished from the present case. The High Court did not compel disclosure because in that case the "claim book" was considered to be a pleading and the document was never introduced into evidence. In this case, by contrast, the report constitutes a significant part of the applicant's evidentiary case and will be tendered. Read in this light, comments made in Maurice assists the respondent's case. At 483 Gibbs CJ said: "The 1982 Claim Book was in some respects analogous to a pleading; it served to state the case which the claimants intended to present although it went into much more detail than would be expected of a formal pleading. So long as the Claim Book was not used in any other way, it is impossible to say that it was in any respect unfair or misleading to lodge it with the Commissioner and to distribute it to the parties without making available the sources from which it was derived. The 1982 Claim Book was a document of a kind that would not be admissible in ordinary proceedings, but if it had been admissible in the proceedings before the Aboriginal Land Commissioner, and if it had in fact been admitted as evidence, the appellant would have been entitled to test its accuracy and weight, and since that could hardly be done unless it was known on what sources it was based, consideration of fairness might have required those sources to have been produced." (emphasis added). At 489 – 490 Mason and Brennan JJ said: "A Claim Book's closest analogy is with a pleading. There is a requirement that the Claim Book be filed. It specifies the claimants and the claimed land, and sets forth the basis of the claim… It is well settled that a litigant of course does not waive his legal professional privilege to research materials, directly or by implication, by merely submitting a pleading… More importantly, the appellant has not been prejudiced by a partial disclosure – ie a disclosure of the 1982 Claim Book and non-disclosure of the source materials. Although the Central land Council tendered the 1982 Claim Book in the first proceeding the book never found its way into evidence. The respondents have not sought to reveal beneficial parts while keeping injurious parts hidden". (emphasis added). 13 In this case, in my opinion, it would be unfair to allow the report to stand without disclosing the documents upon which it was based. This would in effect amount to a partial disclosure of the available material. To the extent, if any, to which this conclusion may differ from that reached in Daniel v State of Western Australia [1999] FCA 1541 I respectfully find it necessary to give effect to my conclusion, however unfortunate disparate approaches to such a question may be. 14 The applicants also submitted that any question of unfairness relevant to determining waiver is to be determined at trial (see Daniel at paras 55, 57 and 58). They refer to the adversary nature of the proceedings to support their submission that there has been no implied waiver until Dr Waite is called to give evidence and his report is formally tendered. However, this submission lacks substance given that the trial commenced in October 1999 and that it is conceded that Dr Waite will be giving evidence in June 2000. If this submission were to succeed, it may result in the respondents seeking an adjournment, during the cross-examination of Dr Waite, to consider the materials. To draw such a technical distinction would, in the circumstances of this case, be an inconvenience to the parties and the Court, and may increase the costs involved in what has already proven to be long and expensive litigation. Public interest immunity 15 The applicants further submitted that any confidential material supplied to Dr Waite on the basis of his professional undertakings ought not be released on public interest grounds. The test to determine whether a public interest immunity applies was that stated by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 38: "The court must decide … whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence." 16 Confidentiality is not in itself considered to be sufficient to ground a claim for public interest immunity (although it may be relevant to the exercise of the Court's discretion whether to permit access to the materials: Science Research Council v Nasse [1980] AC 1028 at 1065 – 1066, per Lord Wilberforce). However, the applicants asserted that the materials covered by the subpoena were protected from disclosure by a public interest in protecting Aboriginal rights and beliefs. In Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 at 256 Bowen CJ said: "The proper protection of minority rights is very much in the public interest, as is respect of deeply held spiritual beliefs. In particular, the rights and beliefs of the Aboriginal people of Australia should be accorded a special degree of protection and respect in Australian courts … Such an approach would extend to cover both Aboriginal guardians of the secret and other persons to whom they have extended their confidence". (emphasis added). 17 The protection of and respect for aboriginal rights and beliefs are manifestly matters in the public interest, however the concept of public interest immunity does not exist merely to enable tactical advantages or disadvantages in litigation. Where the interests of the Court doing justice and the public interest in the protection of confidential material concerning Aboriginal spiritual beliefs can both be reasonably accommodated by an appropriately framed order, this should be done. Where questions of the balance of competing interests are involved, their reconciliation should not be discouraged. This may be achieved in this case by restricting access to the materials collected or prepared by Dr Waite to counsel, instructing solicitors and the expert anthropologist engaged by the first respondent, and counsel and instructing solicitors for the third respondent. Further, these parties may uplift only one copy of the documents, which may not be reproduced, and will upon conclusion of the trial be returned to the Court and destroyed. Obviously no extraneous use of these materials may be made and any necessary gender restrictions will be complied with. Disposition 18 For these reasons the applicant is to be granted first access to the materials produced to the Court on subpoena dated 17 September 1999 to remove, having regard to these reasons, those materials that are not forensically relevant to the proceedings. Access is to be granted to the remaining materials to counsel, instructing solicitors and the expert anthropologist engaged by the first respondent, and counsel and instructing solicitors engaged by the third respondent. These persons may uplift only one copy of the documents, which may not be reproduced, and which will upon conclusion of the trial be returned to the Court and destroyed. No extraneous use may be made of these materials and any necessary gender restrictions will be complied with. 19 The applicants and Dr Waite are to pay the respondents' costs of the motion. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 20 April 2000 Counsel for the Applicants: A Sheehan Solicitor for the Applicants: Aboriginal Legal Service of Western Australia Counsel for Dr Waite: G McIntyre Solicitor for Dr Waite: Dwyer Durak Counsel for the First Respondent: V Hughston Solicitor for the First Respondent: Crown Solicitors Officer of Western Australia Date of Judgment: 20 April 2000