FEDERAL COURT OF AUSTRALIA Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817 File number: NSD 1248 of 2014 Judge: GRIFFITHS J Date of judgment: 18 July 2017 Catchwords: PRACTICE AND PROCEDURE – application to set aside notice to produce relating to report prepared by research consultants for second respondent – whether second respondent, in retaining the research services of a consultant, was acting as principal or agent of applicant – whether any legal professional privilege in the report would be the privilege of the second respondent Held: notice to produce set aside Legislation: Native Title Act 1993 (Cth) ss 203BB, 203FE, 203FEA Cases cited: Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3; 188 CLR 501 Date of hearing: 18 July 2017 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr Pappin appeared in person on behalf of the applicant Counsel for the First Respondent: Mr M Hill Solicitor for the First Respondent: Crown Solicitors Office Counsel for the Second Respondent: Mr J Waters ORDERS NSD 1248 of 2014 BETWEEN: GARY PAPPIN AND JEAN CHARLES ON BEHALF OF THE MUTHI MUTHI PEOPLE Applicant AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 18 JULY 2017 THE COURT ORDERS THAT: 1. The notice to produce dated 14 June 2017 is set aside. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 The applicant in the proceeding has served a notice to produce dated 14 June 2017 on NTSCORP Limited (NTSCORP), who is the second respondent in the proceeding. The notice to produce sought production of historical and anthropological material or research, which is identified in paragraphs 9 and 10 of a progress report dated 30 August 2005. The report relates to an earlier claim under the Native Title Act 1993 (Cth) (the Act) brought in respect of the claimed native title rights and interests of the Muthi Muthi People. Paragraph 9 of that document referred to NSWNTS (which I interpolate is a reference to the New South Wales Native Title Services Limited, which is now known as NTSCORP). 2 NTSCORP has, by an interlocutory application dated 28 June 2017, sought to have the notice to produce set aside insofar as it requires the production of a report dated 5 April 2017 by Mr Robert Graham and Ms Stephanie Eagle. NTSCORP say that there are no other documents that fall within the notice to produce. 3 I have had the benefit of reading helpful outlines of written submissions filed on behalf of NTSCORP and also by Mr Gary Pappin, who is one of two people who make up the applicant in the substantive proceedings. The issue on which the matter turns, it seems to me, is whether or not in retaining the research services of Mr Graham and Ms Eagle back in 2004, NTSCORP was acting as principal or as agent of the applicant. 4 Critical to this question are the terms of an agreement dated 4 July 2004 between NTSCORP and Mr Graham (the agreement), who is described therein as the research consultant. Two of the recitals to the agreement, on their face, might suggest that NTSCORP was acting as agent for the native title claim group in the context of the earlier native title claim in this Court, which is known as Muthi Muthi NC00/03 and which has the Federal Court file number NG6079/98. The two recitals are Recitals A and B. Recital A states that "NSWNTS is performing the functions of a representative body under section 203FE of the Native Title Act 1993 (Cth)", and Recital B states that "NSWNTS has been requested by the Native Title Claim Group to facilitate and assist it in the research and preparation of its Native Title Claim". 5 Mr Waters, who appeared on behalf of NTSCORP in support of its interlocutory application to have the notice to produce set aside, drew the Court's attention to the statutory meaning of the term "representative body" under ss 203FE and 203FEA of the Act. In brief, the effect of 203FEA is to make a body such as NTSCORP, who receives funding, a representative body for the purposes of the Act. That does not mean, however, that the representative body is acting as an agent. The role of NTSCORP is more complex and nuanced than that. It has the capacity in its own right and independently of a native title claim group to be a party in proceedings. Indeed, that is the case in the existing proceeding in this Court, and I also understood that that was the case with the earlier native title claim to which I have made reference at [4] above. 6 Insofar as Recital B is concerned, there is a reference to NSWNTS having been requested by the native title claim group to facilitate and assist it in the research and preparation of its native title claim. That would appear to be a reference to s 203BB(2) of the Act, the terms of which are: (2) A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so. 7 The term "facilitation and assistance functions" is defined in 203BB(1). Accordingly, the request described in [6] above seems to be the initiation of facilitation and assistance functions for the purposes of s203BB(2). 8 With one exception, to which I will come to in a moment, the balance of the agreement for the provision of research services, which was the source of the legal relationship between NSWNTS, and the consultant, Mr Graham, which gave rise to the report which is the subject of this current dispute, indicates that NSWNTS was acting in its own right as principal and not as agent. That being the case, any legal professional privilege resting in the report is the privilege of NTSCORP and not some other body, including the native title claim group under the earlier native title claim. 9 The exception to which I have referred is clause 13 of the agreement. Clause 13 provides: 13 The Research Consultant shall not at any time, during the life of this agreement or thereafter, waive such privilege without the prior written consent of NSWNTS and/or the Native Title claim ground unless required to do so by law. 10 As I raised with Mr Waters, the final words of that clause would appear to indicate that the draftsperson contemplated the possibility of the native title claim group having some right to waive such privilege as might otherwise exist in any document produced by the research consultant under the terms of this agreement. It should also be emphasised that clause 13 makes clear that NSWNTS saw itself as being in a position to determine, presumably in its own right, whether or not any privilege should be waived. 11 Although I find the words of clause 13 a little puzzling, I accept the submission that they ought to be viewed as representing a degree of overreach on the part of the draftsperson. It may well be that the words were included to cover a situation where there was complete consensus between the views of NSWNTS and the native title claim group, such that any claim for privilege was common to them both. However as Mr Waters has pointed out, and as an examination of relevant provisions in the Act confirm, that is not always necessarily going to be the case. NTSCORP and the native title claim group which is involved in a particular native title application may in some cases have interests which are symmetrical and coincide. Nevertheless, it may be the case that those interests and views are disparate. It is for that reason that I believe that clause 13 needs to be read with some care. And when that clause is read in the context of the agreement as a whole, it seems to me relatively clear that any privileged communication in the report is the privilege of NTSCORP. 12 I have given careful consideration to the written and oral submissions made by Mr Pappin. Mr Pappin contends that the report is not a communication within the meaning of the High Court's decision in Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3; 188 CLR 501. I respectfully disagree. A copy of the report has been provided in a sealed envelope to the Court. I have not opened that envelope and viewed the report myself. I accept, however that the report is one which has been provided in response to the agreement and that the report is of an anthropological research nature, in the fashion that is described within the agreement itself. The document, in my respectful opinion, is plainly a communication for the purposes of legal professional privilege. It was commissioned by NTSCORP with litigation in mind. 13 Mr Pappin also submitted in paragraph 7 of his written submissions that the Muthi Muthi People are the applicant to the current native title claim. Also, as I understood it, he submitted that they should also be viewed as the applicant in the previous claim. With great respect, it may be that the Muthi Muthi People are the native title claim group in the current claim and it would appear that, although there is not a copy of the previous native title application for determination before the Court at this time, the Muthi Muthi People were most probably also the native title claim group in that earlier proceeding. The fact remains, however, that the current applicant in the current proceeding is not the Muthi Muthi People, but is rather Mrs Jean Charles and Mr Gary Pappin. 14 I have already given my reasons why I do not accept the submission that NTSCORP should be viewed as the agent and not as the principal. I have also explained my view of the effect of Recitals A and B and indicated how clause 13 should be read. 15 For these reasons, the interlocutory application should be upheld and the notice to produce set aside. There is no request for costs in this interlocutory application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 18 July 2017