FEDERAL COURT OF AUSTRALIA Allison v State of Western Australia [2007] FCA 1969 REYNOLD ALLISON & ORS v STATE OF WESTERN AUSTRALIA & ORS WAD 6059 OF 1998 SACKVILLE J 12 DECEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6059/1998 BETWEEN: REYNOLD ALLISON & ORS APPLICANT AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: SACKVILLE J DATE OF ORDER: 12 DECEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: Upon an undertaking by each of Shayne Daley of Shayne Daley & Associates and Peter Willis of counsel severally (counsel for the Movers), to the Opponents in this proceeding and to this Court that they will: (a) maintain full confidentiality of all documents and other communications to which they obtain access under this order; and (b) not disclose to anyone, including their clients (that is, the Movers), any such documents and other communications, or any part thereof, to which they obtain access under this order, EXCEPT: (c) anything that is expressly agreed in writing with the Opponents; (d) anything the subject of further order of this Court; (e) material which comes into the public domain otherwise than in breach of this undertaking; (f) material which is filed with any court or tribunal in connection with an application in respect of native title rights and interests; or (g) as required under compulsion of law. 1. The Opponents: (a) provide to the Movers at their address for service in the amended notice of motion filed on 31 August 2007 (Shayne Daley & Associates) a list of; and (b) make available to the Movers for inspection and, upon request, copying, all information that is contained within documents in the Opponents' possession, custody or control, relating to: (i) this proceeding (also known as the 'Sir Samuel No 2 claim'); (ii) the original application lodged in the National Native Title Tribunal numbered WC 95/82; (iii) any reports commissioned in contemplation of any new application for the determination of Native Title which includes or overlaps the boundaries of the Sir Samuel No 2 claim, including the proposed claim known as 'Yingkatala'; and (iv) all communications with the Central Desert Native Title Services, or its predecessor (Ngaanyatjarra Council), relating to any proposed application for the determination of Native Title which includes or overlaps the boundaries of the Sir Samuel No 2 claim, including the proposed claim known as 'Tarlpa'. 2. The Opponents provide to the Movers by email within three working days of the date of these orders a copy of the report prepared by Dr Lee Sackett (referred to in the letter of 6 December 2007 from the Goldfields Land and Sea Council to Sackville J's associate) 3. The parties have liberty to apply on three days notice. 4. There be no order as to the costs of the Motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA REGISTRY WAD 6059 OF 1998 BETWEEN: REYNOLD ALLISON & ORS APPLICANT AND: STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: SACKVILLE J DATE: 12 DECEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By an amended notice of motion filed on 31 August 2007, five named persons ('the Movers') seek orders for access to certain documents. The motion has been filed in native title proceedings known as the Wanmulla / Sir Samuel claim ('Sir Samuel 2 Claim'). The Sir Samuel 2 claim relates to an area in the north-west Goldfields region of Western Australia, located between Wiluna and Leinster. 2 The Movers are members of a claimant group in the Sir Samuel 2 claim, originally consisting of 29 named persons. The same 29 persons originally comprised the claimant group in proceedings known as the Tjupan Ngalia / Sir Samuel claim ('Sir Samuel 1 Claim'), although some members of the claimant group have died since the proceedings were instituted in 1998, nearly ten years ago. 3 The Sir Samuel 1 claim relates to a larger area adjacent to and south of the land subject to the Sir Samuel 2 claim. There is no overlap between the two claim areas, although both claims overlap with other claims in the north-west Goldfields region. 4 The Goldfields Land and Sea Council ('GLSC') acts for the claimant group in the Sir Samuel 2 claim. Until the filing of the present motion, the GLSC refused to provide the Movers with access to the documents they sought, at least on terms satisfactory to the Movers. 5 The Movers seek orders requiring the applicants in the Sir Samuel 2 proceedings (other than the Movers themselves) ('the Opponents') to provide for inspection and copying, inter alia, all documents in their possession, custody or control relating to: · the Sir Samuel 2 claim; · any native title proceeding lodged after 1 September 1995 which has previously been consolidated into the Sir Samuel 2 claim; and · any proposed new application which includes or overlaps the boundaries of the Sir Samuel 2 claim. 6 Two of the Movers, Mr Keith Sceghi and Mr Reynold Allison, swore affidavits which were read in evidence. Mr Allison's evidence indicates that he filed a claimant application in December 1995 on behalf of the Wanmulla people. In general terms, the Wanmulla claim covered the areas the subject of the Sir Samuel 1 and Sir Samuel 2 claims. At some time not identified in the evidence, the GLSC was retained as the legal representative for the Wanmulla claim. 7 As the result of mediation, proposals were made to consolidate and revise various native title claims that had been lodged in the north-west Goldfields region. This led to the filing of the Sir Samuel 1 and Sir Samuel 2 claims. 8 While these two claims do not seem to have progressed very far, there have been some developments which affect them. In October 2005, a land summit was held which resulted in an 'in principle agreement' to reformulate the Sir Samuel claims. It appears, however, that no progress has been made in implementing this agreement, in part because of disagreements within the claimant group. 9 On 5 February 2007, Lindgren J delivered judgment dismissing a native title claim in relation to the Wongatha claim area in the Western Australian Goldfields: Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. Although the Wongatha claim area (comprising approximately 159,000 square kilometres) does not overlap with the Sir Samuel 1 and Sir Samuel 2 claims, the findings made and conclusions reached by Lindgren J might be relevant to these claims. 10 In consequence of these developments, the Movers seek access to the documents identified in the motion. Their reason for seeking access is to enable them to obtain independent legal advice as to how they and the claimants in the original Wanmulla claimant group should proceed. The documents are said to be necessary for that advice to be given. 11 The Movers acknowledge that much of the material sought by them has been created from confidential information supplied to or collected by the GLSC from indigenous sources. To address this difficulty the Movers have offered undertakings to limit the persons entitled to access and to ensure that confidentiality is maintained. 12 The Movers filed written submissions in support of the relief sought in the motion. They accepted that some of the communications contained in the documents to which they seek access are subject to client legal privilege. However, the Movers submitted that the since they had jointly instructed the GLSC they had the benefit of joint client legal privilege. Moreover, so the Movers argued, there is no privilege between the members of the applicant group. Consequently, each member is entitled to copies of communications to and from, and advice given by, their jointly instructed legal advisers in their capacity as such. 13 The Opponents contended in their written submissions that, although the Movers were entitled to access to documents for 'purposes consistent with the maintenance of' the Sir Samuel claims, the Movers' new solicitor was not entitled to inspect or make copies of the Opponents' documents. The Opponents argued that the Movers were seeking the documents for a purpose 'collateral to the interests' of the applicant group. 14 The motion came on for hearing on 4 October 2007. In view of certain concessions that appeared to have been made by the Opponents, I expressed some doubts as to the utility of the proceedings. I invited the parties to discuss the matter to determine whether agreement could be reached. The impression I gained at the time was that the parties had agreed in principle and that short minutes of order would be forwarded to me in due course by the legal representatives. 15 I was later informed that the parties could not reach agreement on the terms of the orders and that the matter would have to be relisted for further argument. The adjourned hearing was set down for 7 December 2007. 16 Shortly before the adjourned hearing, I received a letter from the GLSC. The letter indicated that, with one exception, there was no dispute that the short minutes of order attached to the letter should be made. With some minor amendments discussed at the hearing and some editorial changes made by me, the agreed short minutes of order are as follows: 'UPON AN UNDERTAKING by each of Shayne Daley of Shayne Daley & Associates and Peter Willis of counsel severally (counsel for the Movers), to the Opponents in this proceeding and to this Court that they will: (a) maintain full confidentiality of all documents and other communications to which they obtain access under this order; and (b) not disclose to anyone, including their clients (that is, the Movers), any such documents and other communications, or any part thereof, to which they obtain access under this order, EXCEPT: (c) anything that is expressly agreed in writing with the Opponents; (d) anything the subject of further order of this Court; (e) material which comes into the public domain otherwise than in breach of this undertaking; (f) material which is filed with any court or tribunal in connection with an application in respect of native title rights and interests; or (g) as required under compulsion of law. THE COURT ORDERS: 1. The Opponents: (a) provide to the Movers at their address for service in the notice of motion (Shayne Daley & Associates) a list of; and (b) make available to the Movers for inspection and, upon request, copying all information that is contained within documents in the Opponents' possession, custody or control, relating to: (i) this proceeding (also known as the 'Sir Samuel No 2 claim'); (ii) the original application lodged in the National Native Title Tribunal numbered WC 95/82; (iii) any reports commissioned in contemplation of any new application for the determination of Native Title which includes or overlaps the boundaries of the Sir Samuel No 2 claim, including the proposed claim known as 'Yingkatala'; and (iv) all communications with the Central Desert Native Title Services, or its predecessor (Ngaanyatjarra Council), relating to any proposed application for the determination of Native Title which includes or overlaps the boundaries of the Sir Samuel No 2 claim, including the proposed claim known as 'Tarlpa'. 2. The parties have liberty to apply on three days notice.' 17 The exception to which I have referred is that Mr Hooker, who appeared for the Opponents, said that his instructions were to include in Order 1 of the short minutes of order, after the word 'information', the following: 'so far as that information pertains to the Movers and only to the Movers'. Mr Hooker also stated that his instructions did not permit him to consent to an additional order proposed by the Movers, as follows: 'The Opponents provide to the Movers by email within three working days of the date of these orders a copy of the report prepared by Dr Lee Sackett (referred to in the letter of 6 December 2007 from the GLSC to Sackville J's associate)'. 18 Dr Sackett's report had been commissioned in 2006 by the GLSC in order to compile ethnographic material in support of the native title claims made in the Sir Samuel claims. The Opponents supplied information to Dr Sackett for that purpose. The reason given by the Opponents for qualifying their consent to the proposed short minutes of order was that they did not wish the Movers to have access to the information supplied to Dr Sackett by them and their families. 19 Although communicating his instructions to the Court, Mr Hooker informed me that he would not make any submissions opposing the orders sought by the Movers. In these circumstances, and bearing in mind the undertakings given by the legal representatives of the Movers, I think that it is appropriate to make orders in the terms sought by the Movers. I therefore intend to do so. 20 Since the Movers do not seek any costs, there will be no order for the costs of the motion. I certify that the preceding twenty (20) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 12 December 2007 Counsel for the applicants: Mr Daley Solicitor for the applicants: Shayne Daley & Associates Counsel for the respondent: Mr Hooker Solicitor for the respondent: Goldfields Land and Sea Council Date of hearing: 7 December 2007 Date of judgment: 12 December 2007