Roe v State of Western Australia [2010] FCA 1436

FEDERAL COURT OF AUSTRALIA

Roe v State of Western Australia [2010] FCA 1436 Citation: Roe v State of Western Australia [2010] FCA 1436

Parties: JOSEPH ROE AND CYRIL SHAW ON BEHALF OF THE GOOLARABOOLOO AND JABIRR JABIRR PEOPLES v THE STATE OF WESTERN AUSTRALIA & ORS

File number: WAD 6002 of 1998

Judge: GILMOUR J

Date of judgment: 17 December 2010

Legislation: Native Title Act 1993 (Cth) s 66B

Cases cited: Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438

Date of hearing: 29 & 30 November, 1 & 2 December, 14 December 2010

Place: Perth

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 21

Counsel for the Applicant on the motion: Mr V Hughston SC and Ms T Jowett

Solicitor for the Applicant on the motion: HWL Ebsworth Lawyers

Counsel for the Respondent on the motion: Mr M Orlov

Solicitor for the Respondent on the motion: Chalk & Fitzgerald

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 6002 of 1998

BETWEEN: JOSEPH ROE AND CYRIL SHAW ON BEHALF OF THE GOOLARABOOLOO AND JABIRR JABIRR PEOPLES

Applicant

AND: THE STATE OF WESTERN AUSTRALIA & ORS

Respondent

JUDGE: GILMOUR J DATE: 17 DECEMBER 2010 PLACE: PERTH

REASONS FOR JUDGMENT 1 On 2 December 2010 in the course of hearing a motion dated 13 August 2010 (the motion) brought under s 66B of the Native Title Act 1993 (Cth) I upheld a claim of legal professional privilege asserted by the Kimberley Land Council (KLC) but as a matter of convenience intimated through counsel for the applicants on the motion 2 The claim was made in relation to a draft Connection Report (Report) prepared by Ms Ophelia Rubinich, a consultant anthropologist, for the KLC for use in litigation. Mr Joseph Roe, the respondent on the motion, had made a call for its production. 3 It is not contended by Mr Roe that the Report was not subject to legal professional privilege but that privilege has been waived or in any event is producible because it has at least, in part, been used by Ms Rubinich in the formulation of her opinions expressed in her affidavit evidence. 4 Ms Rubinich has affirmed a number of affidavits which have been read in support of the motion. The relevant affidavits for present purposes were affirmed by Ms Rubinich on 10 September and 12 October 2010. 5 The challenge to these affidavits according to counsel for Mr Roe concerns issues as to the ancestral descent of Sophie McKenzie, Patricia Torres and Frank Dixon (under that name or an alias). 6 The affidavit of 10 September at [2] provides: I have been asked by HWL Ebsworth Lawyers, the solicitors for the applicant on the notice of motion to provide my expert opinion on whether the following people are members of the native title claim group for the Goolarabooloo and Jabirr Jabirr Peoples ("GJJ") native title determination application, being Federal Court proceeding WAD6002/98 ("GJJ claim"): (a) Cecilia (Cissy) Djiagween; (b) Patricia Torres; (c) William McKenzie; (d) Ignatius Paddy; and (e) Anthony Watson. 7 These are 5 of the 6 applicants on the motion who Mr Roe, through his counsel, had earlier informed the Court were under challenge on the motion. 8 The position has changed however in that, in respect of those 6 persons, only William McKenzie and Patricia Torres are now challenged. 9 The 10 September affidavit deposes to materials used in obtaining genealogical information on members of the GJJ native title claim group. These are referred to at [26]-[29]. It also expresses opinions by Ms Rubinich as to whether those 5 persons originally challenged are in each case a descendant of apical ancestors listed in the GJJ Peoples Form 1 in that Native Title Claim. Each was opined by her to be a member of the GJJ claim group. 10 The affidavit of 12 October at [3] provides: I have been asked by HWL Ebsworth Lawyers, the solicitors for the applicant on the notice of motion to provide my expert opinion on whether the following people are members of the native title claim group for the Goolarabooloo and Jabirr Jabirr Peoples ("GJJ") native title determination application, being Federal Court proceeding WAD6002/98 ("GJJ claim"): (a) … (b) members of the McKenzie family; (c) … (d) … (e) members of the Barker family. 11 During this hearing counsel for Mr Roe withdrew challenges in respect to members of the Augustine family, Sebastian family and Greatorex Family. However the challenges to the McKenzie family and Barker family remain. A belated challenge was raised at the hearing in respect to descendants of Frank Dixon. 12 Ms Rubinich expressed opinions in this affidavit based on interviews with GJJ native title claim group members and the same secondary sources relied upon for her 10 September affidavit. 13 Ms Rubinich does not refer to the Report as a source in the formulation of her opinions in either of these affidavits. 14 The question is whether there was relevant use by Ms Rubinich of the Report in the preparation of her affidavits such as to require that it be produced to Mr Roe in whole or in part. 15 The privilege claimed, as I mentioned, is not that of the applicants on the motion and I do not know whether the KLC's clients for whom the Report was commissioned, knew that Ms Rubinich would make any use, in the relevant sense or otherwise, of the Report for the purposes of her affidavits in relation to the motion. 16 Counsel for Mr Roe referred to Australian Securities & Investments Commission v Southcorp Ltd (2003) 46 ACSR 438 at [21]. There Lindgren J collected a number of principles which include, relevantly the following: 1. Ordinarily the confidential briefing or instructing by a prospective litigant's lawyers of an expert to provide a report of his or her opinion to be used in the anticipated litigation attracts client legal privilege: cf Wheeler v Le Marchant (1881) 17 ChD 675; Trade Practices Commission v Sterling (1979) 36 FLR 244 at 246; Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141 (Interchase) at 151 per Pincus JA, at 160 per Thomas J. 2. . . . 3. Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase at 161-2 per Thomas J. 4. . . . 5. Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148-50 per Pincus JA, at 161 per Thomas J. 6. . . . 17 Ms Rubinich said that she 'used' the Report to find secondary sources and that some things in the Report are a one-line opinion based on the secondary source and these opinions have been repeated in her affidavits. 18 In my opinion, the use by Ms Rubinich of the draft Connection Report does not constitute relevant use in the sense employed by Lindgren J in ASIC v Southcorp. It seems to me that the Report was used by the witness as a convenient reference to enable her to locate the relevant and important secondary sources. Her opinions in the Report were based in part on those secondary sources. The same secondary sources were relied upon by her for the purpose of making her affidavits for the purposes of this hearing. 19 Ms Rubinich, I am persuaded on the evidence she gave on this issue, did not use the Report to formulate opinions expressed in her affidavits. Those opinions were based on materials in both affidavits which she quite properly has identified. 20 I reject the submission that Ms Rubinich disregarded or contravened this Court's guidelines for expert witnesses when preparing her affidavits by not mentioning the Report in those affidavits. 21 For these reasons I uphold the claim for client privilege asserted by the KLC. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.