DONNELLY & ANOR v TENTERFIELD SHIRE COUNCIL & ANOR [1998] NSWLEC 29 (4 March 1998) [1998] NSWLEC 74

Land and Environment Court of New South Wales

CITATION : DONNELLY & ANOR v TENTERFIELD SHIRE COUNCIL & ANOR [1998] NSWLEC 29 (4 March 1998) [1998] NSWLEC 74 PARTIES : DONNELLY & ANOR v TENTERFIELD SHIRE COUNCIL & ANOR [1998] NSWLEC 29 (4 March 1998) FILE NUMBER(S) : 4029 of 1997 CORAM: Lloyd J KEY ISSUES: :- Subpoena to produce documents - document containing confidentiality clause - public policy in respecting confidential provisions in agreements made under Native Title Act 1993 (Cth) - access denied - access granted to part of the document to which confidentiality has been waived. LEGISLATION CITED: Native Title Act 1993 (Cth), ss 23(6), 34, 41(1) Evidence Act 1995, s 131 CASES CITED: Waind v Hill & Anor (1978) 1 NSWLR 372 DATES OF HEARING: 27 February 1998 DATE OF JUDGMENT: 03/04/1998

Taylor Kelso LEGAL REPRESENTATIVES: Blake Dawson Waldron

JUDGMENT: HIS HONOUR: 1 The second respondent seeks an order that the applicant be denied access to a document produced by the National Native Title Tribunal in answer to a subpoena to produce documents. The document is an agreement made pursuant to s 34 of the Native Title Act 1993 (Cth), between the second respondent and Mr Eric Walker on behalf of the Tabulam Bundjalung and the State of New South Wales. The State of New South Wales also opposes the granting of access to the document to the applicants.

2 The applicants claim an interest in the land the subject of these proceedings. They claim to hold native title to the land. Accordingly they claim, pursuant to s 23(6) of the Native Title Act the same procedural rights in relation to the activity the subject of these proceedings as if they held ordinary title to the land. The status of the applicants and the nature of their interest in the land appears to be one of the relevant issues in the proceedings. Nevertheless, the respondents object to the disclosure of the agreement upon a number of bases. Firstly , it is submitted by Mr C R Ireland, who appears for the second respondent, that the document is not relevant to any issue in the case. It is said to be a document of a private nature concerning a party to the litigation and other parties being strangers to the litigation. Moreover, he submits that the agreement is not relevant because it expressly provides that the parties make no admissions as to whether native title rights or interests exist or have been extinguished and they have further agreed that nothing in the agreement can be used in the prosecution of any native title claim by the Tabulam Bunjalung or by any person on their behalf.