FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd (ACN 008 027 085) (No 5) [2000] FCA 1407

CONTEMPT OF COURT – Aboriginal law and custom – whether genuinely held beliefs can relieve a person from complying with an order of the Court – questions of relevance and necessity – whether applicants have satisfied the Court that it was both relevant and necessary to comply with the order of the Court.

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Aboriginal Heritage Act 1983 (SA) s 35

Native Title Act 1993 (Cth) s 82

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Aboriginal Sacred Sites Act 1978 (NT)

Federal Court Rules O 10 r 1(1), O 40 rr 1, 5(1), 6, O 78 rr 31 to 36

Chapman v Tickner (1995) 55 FCR 316 noted

Tickner v Chapman (1995) 57 FCR 451 noted

Witham v Holloway (1995) 183 CLR 525 applied

Attorney-General v Mulholland (1963) 2QB 477 applied

Re Buchanan (1964) 65 SR (NSW) 9 noted

Hancock v Lynch [1988] VR 173 noted

John Fairfax & Sons Pty Ltd v McRae [1954-1955] 93 CLR 351 applied

Sankey v Whitlam (1978) 142 CLR 1 followed

Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104 discussed

Smith v Western Australia (2000) 98 FCR 358 discussed

Chapman v Luminis Pty Ltd [No 2]  2000 FCA 1010 discussed

Champan v Luminis Pty Ltd (No 3) 2000 FCA 1120 discussed

von Doussa v Owens (No 2) (1982) 30 SASR 391 noted

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD (ACN 007 620 439) (in liquidation) v LUMINIS PTY LTD (ACN 008 027 085), DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

NO SG 33 OF 1997

O’LOUGHLIN J

ADELAIDE

6 OCTOBER 2000

THE COURT ORDERS THAT:

1.         The applicants’ notice of motion filed herein on 30 August 2000 be dismissed.

2.         The applicants pay the costs of Sandra Dorothy Saunders which costs are to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

motion for contempt

1                     The applicants in these present proceedings are Thomas Lincoln Chapman, his wife Wendy Jennifer Chapman and their company Binalong Pty Ltd ACN 007 620 439 (Receivers and Managers appointed) (in liquidation).  The respondents in the substantive proceedings are Luminis Pty Ltd ACN 008 027 085 (“Luminis”), a corporate arm of the University of Adelaide, Dr Deane Joanne Fergie (“Dr Fergie”) a consultant anthropologist retained by Luminis, Professor Cheryl Anne Saunders (“Professor Saunders”) a Professor of Law who in May 1994 had been commissioned to prepare a report for the purposes of subs 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), the Hon Robert Edward Tickner (“Mr Tickner”) a one time Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs and, finally, the Commonwealth of Australia.

2                     The applicants have sued the respondents claiming damages under a variety of causes of action but all relating to the difficulties that the applicants have faced with respect to their attempts to carry out their land and marine development at Hindmarsh Island near Goolwa in the State of South Australia.  Intertwined in their developmental project is the building of the Hindmarsh Island bridge (“the bridge”) and the claims that have been made by Aboriginal people that the construction of the bridge impinges on sacred and secret aspects of Aboriginal life and culture.

3                     Ms Sandra Dorothy Saunders (“Ms Saunders”) has been a witness in the substantive proceedings.  She is the subject of an application, by way of motion filed on 30 August 2000 at the suit of the applicants, that (inter alia) she be punished for an alleged contempt in connection with her refusal to produce certain material to the Court in the substantive proceedings.  The notice of motion was accompanied by a statement of charge and was supported by the affidavit of Stephen Michael Palyga, a solicitor and a partner in the firm of Messrs Lynch and Meyer, the solicitors for the applicants.  He is the practitioner who has the conduct of this matter on behalf of the applicants.

4                     There is a long litigious history to this matter going back to 1994 when Mr Tickner, made first, an interim order under s 9 and later, a permanent order under s 10 of the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) prohibiting the construction of the bridge for a period of twenty-five years.  Companies controlled by the Chapmans had intended to build the bridge at Goolwa which would have connected the mainland to Hindmarsh Island and the orders that were made by Mr Tickner prevented that construction.  Before making his final order, Mr Tickner retained Professor Saunders to investigate and report to him on the issues that had been raised on behalf of the Aboriginal people.  In her report, Professor Saunders concluded that the area of land that was involved in the proposed construction of the bridge was a significant Aboriginal area.  She reported that it was open to the Minister to conclude that the construction of the bridge threatened injury or desecration to the area.  There was attached to Professor Saunders’ report to the Minister an anthropological report from Dr Fergie.  That last mentioned report had been prepared for the benefit of the Aboriginal people who were opposed to the construction of the bridge.  Attached to Dr Fergie’s report were two sealed envelopes.  The contents of those envelopes were said to contain information that the proposed site of the bridge covered an area of great cultural and spiritual significance to Ngarrindjeri women, the precise terms of which could not be disclosed to men.  That information has come to be known as the “secret women’s business” or the “restricted women’s knowledge”.  Mr and Mrs Chapman and their son successfully challenged the decisions of Mr Tickner in this Court: Chapman v Tickner (1995) 55 FCR 316.  An appeal was subsequently dismissed, leaving the Chapmans free to proceed with their development: Tickner v Chapman (1995) 57 FCR 451.

5                     Mr Palyga has deposed that, on 26 July 2000, he caused to be issued in the substantive proceedings a subpoena returnable on Wednesday 2 August 2000.  That subpoena was directed to Ms Saunders and called upon her to produce the material that was referred to in the schedule to the subpoena.  A copy of the subpoena was exhibited to Mr Palyga’s affidavit.  Its schedule contained demands for the production of:

“1.      Field notebooks of Dr Deane Fergie relating to the carrying out of a consultancy by her (through Luminis Pty Ltd) for Aboriginal Legal Rights Movement Incorporated in and about June and July 1994 and relating to certain Aboriginal heritage said to be affected by the construction of the Hindmarsh Island bridge.

2.       Confidential appendices 2 and 3 to a report prepared by Dr Deane Fergie (through Luminis Pty Ltd) for Aboriginal Legal Rights Movement Incorporated and dated the 4^th July 1994 being a report relating to certain Aboriginal heritage said to be affected by the construction of the Hindmarsh Island bridge.

3.       computer disks or diskettes containing or including item 2 above in electronic form.”

6                     A transcript of the proceedings before von Doussa J (who is presiding over the trial) on 2 August 2000, when the subpoena was called on, was also exhibited to Mr Palyga’s affidavit.  According to that transcript Mr Bourne, a solicitor, appeared on behalf of Ms Saunders.  He is recorded as informing the Court that:

·                 Ms Saunders is an Aboriginal woman of the Ngarrindjeri Tribe;

·                 For about seven years until May 1997, Ms Saunders was the Director of the Aboriginal Legal Rights Movement (“the Movement”) in South Australia.  (I interpolate however that she does not have legal qualifications);

·                 Since her resignation and until recently, she has worked as an artist and has held no position in the Movement, but on 16 June she was reappointed as Director in an acting capacity to the end of August 2000;

·                 She acknowledged receipt of the subpoena;

·                 Ms Saunders had the field books of Dr Fergie that were the subject of par 1 of the schedule to the subpoena in her custody or control and in a safe place;

·                 She received the notebooks in her personal capacity and not in any official capacity;

·                 She received the notebooks as a Ngarrindjeri woman and on the basis that the information contained in the notebooks belonged to Ngarrindjeri women;

·                 Ms Saunders was not a custodian of the information, but she physically holds the books as a custodian “in white fella’s terms” for the Ngarrindjeri women;

·                 The confidential appendices two and three that were the subject of par 2 of the schedule to the subpoena have been destroyed;

7                     According to the transcript at p 5203 line 24-25 Mr Bourne is then recorded as saying:

“Ms Saunders will not produce the notebooks to the court.”

8                     The transcript of proceedings then recorded Mr Bourne addressing the Court with respect to item 3 of the schedule to the subpoena.  As to that, he said that his client Ms Saunders “came across a disk” accidentally.  According to Mr Bourne’s instructions Ms Saunders had not “checked but assumes that the disk contains copies of the appendices”.  I take that to be the appendices referred to in par 2 of the schedule to the subpoena.  Mr Bourne then continued at p 5203 lines 40-41:

“… but in any event, whether it does or it doesn’t, she is not prepared to produce that disk to the Court.”

Most, if not all of that information was later verified by Ms Saunders.  As well as filing an affidavit in the proceedings, she gave evidence and made herself available for cross-examination during the hearing of this present application.

9                     On 2 August 2000 von Doussa J made the following orders:

“1.      That Sandra Saunders take all reasonable steps available to her to take into her immediate possession and control the documents described in items 1 and 3 in the subpoena addressed to her and returnable before this Court this day and that she neither directly nor indirectly alter, destroy or damage the same until further order of the Court.

2.       That 10.15 am on Monday the 7^th August 2000 be fixed as the time to argue the objection as to compliance with the subpoena already served.

3.       That the Applicants have leave to file and serve another subpoena addressed to Sandra Saunders requiring her attendance to give evidence at 10.15 am on Monday the 7^th August 2000.”

10                  Mr Palyga deposed that a sealed copy of the order of 2 August 2000 was served on Ms Saunders on Wednesday 2 August 2000 at about 4.00 pm.  That has not been disputed.  A further subpoena was served on Ms Saunders on 2 August 2000.  It called for the production of the same material as was described in the schedule to the first subpoena and it also required Ms Saunders to attend and give evidence.  Both subpoenas were returnable at 10.15 am on Monday 7 August 2000.

11                  Mr Bourne once again appeared on behalf of Ms Saunders on 7 August informing the Court that his client’s position remained the same as that previously stated to the Court; in particular Mr Bourne said:

·                 Production of the documents would cause his client to offend the customs and observances of the Ngarrindjeri women;

·                 It would breach s 35 of the Aboriginal Heritage Act 1983 (SA) (“the Aboriginal Heritage Act”); and

·                 It would cause her to breach the relationship of trust and confidence which she has with the Ngarrindjeri Women who have asked her to be the custodian of the material.

12                  Ms Saunders subsequently entered the witness box in answer to the second subpoena and was affirmed.  She was thereafter questioned by Ms Shaw QC, counsel for the applicants.  During the course of her evidence Ms Saunders confirmed that:

·                 She had the material in her possession;

·                 She had not brought the material to court that day;

·                 She believed that the Aboriginal Heritage Act protected the interests of Aboriginal people and that she should not have to produce the material to the court;

·                 She had a responsibility to the Aboriginal people and, in particular, the Aboriginal women, to keep their information safe.

13                  On 7 August 2000 von Doussa J made the following order:

“1.      Sandra Saunders within seven days produce into the custody of the Court to abide the further order of the Court the two field notebooks prepared by Dr Deane Fergie and the computer disk identified by Sandra Saunders in her evidence today.

2.       A decision on the question of costs in connection with the subpoenas addressed to Sandra Saunders reserved.

3.       The injunction for preservation of the said field notebooks and computer disk made on 2^nd August 2000 to continue until further order.

4.       Adjourn to a date to be fixed for further examination of Sandra Saunders.”

It is an accepted fact that Ms Saunders did not, within the period of seven days, and has not since, produced to the Court the two field notebooks and the computer disk that are referred to in his Honour’s order.  I will, from time to time, refer to the two notebooks and the computer disk as “the material”.

14                  Messrs Bourne Lawyers, the solicitors for Ms Saunders wrote Mr Palyga on 9 August 2000.  They confirmed that their client would not comply with the order for production of the documents.  They then said:

“In our view, the judge’s decision with respect to the application of s 35 of the Aboriginal Heritage Act 1983 (SA) is wrong.  In deciding whether or not to appeal, it is obviously relevant for Ms Saunders to know whether your clients will take any, and what, action against her for non compliance with the judge’s orders.  Please let us know by 5.00 pm on Thursday 10 August your client’s intentions in that respect.”

I was not informed that any such appeal has been instituted.

15                  The contents of the statement of charge relating to the alleged contempt were not contested by Ms Saunders save for its concluding paragraph which contained the accusation that she was in contempt.  She admitted receipt of the subpoena; she acknowledged that he had the material in her possession and she agreed that she had not produced it to the Court as required by the Order of the Court.  However, it was her claim that, by virtue of Aboriginal law and custom and her beliefs, she was compelled under Aboriginal law not to produce the material:  her conduct did not therefore amount to contempt.  She felt unable to comply with the Order of the Court because of her fundamental Aboriginal culture which made production of the material impermissible.  She submitted that her non compliance did not amount to contempt of court because she did not intend to be in contempt of the Court.

16                  In a separate line of defence, she also submitted that the applicants had failed to prove that production of the material was relevant and necessary to the conduct of the litigation in the substantive trial.  In the alternative, she claimed that if there had been a contempt, it was a technical one and that the Court had a discretionary power which should be exercised in her favour so that she might be excused from producing the material.

17                  Ms Saunders has told the Court that she has in her custody and under her control, at her home, Dr Fergie’s notebooks and the computer disk.  The notebooks had been given to her by Ngarrindjeri women so that she might hold them in safe custody.  The disk had been given to her, for the same purpose, by Dr Kartinyeri.  Dr Kartinyeri is a Ngarrindjeri woman who has been entrusted with all details of the restricted women’s business.  She was a prime source of the information that was used by Dr Fergie in the preparation of her report and the appendices to her report.  On the other hand, Ms Saunders said in evidence before me that she does not know the details of the secret women’s business; that information has not been passed on to her.  She also said that even though she has not checked the contents of the computer disk, she is prepared, to assume that the disk may contain, in electronic form, copies of the appendices.  She regards herself only as the custodian of the physical objects – that is the notebooks and the disk – but she is not a custodian of the information that has been called “the secret women’s business”.  As Ms Saunders’ evidence on this subject was not challenged in cross-examination, I am prepared to accept that although she has custody of the material, she is not a person who has knowledge of the details of the secret women’s business.

18                  The relevant provision in the Rules of Court dealing with contempt is O 40, subr 5(1) of which states:

“Where it is alleged that a contempt has been committed in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by motion on notice in the proceeding …”

Rule 6 then states that:

“A statement of charge, that is, a statement specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application.”

19                  A charge of contempt of Court must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 532.  Mr Meyer, counsel for the applicants, submitted that where the contempt that is alleged is said to be the failure to comply with a clear and unambiguous order of which the respondent party has had proper notice, the contempt is established upon proof of the failure without more.  I do not agree.  In my opinion, the decision of the United Kingdom Court of Appeal in Attorney-General v Mulholland (1963) 2QB 477 is persuasive authority for holding that more is required than mere proof of failure to comply with the order of the court.  Mulholland’s case concerned two journalists who refused to disclose their sources of information.  Lord Denning MR referred to the additional factors of relevance and necessity.  He said at 489:

“Take the clergyman, the banker or the medical man.  None of these is entitled to refuse to answer when directed to by a judge.  Let me not be mistaken.  The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered.”

20                  Danckwerts LJ agreed with Lord Denning.  Donovan LJ also agreed but preferred to express himself somewhat differently.  He said:

“In the first place the question has to be relevant to be admissible at all:  in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand – I prefer that expression to the term ‘necessary’.  Both these matters are for the consideration and, if need be, the decision of the judge.  And over and above these two requirements, there may be other considerations, impossible to define in advance, but arising out of the infinite variety of fact and circumstance which a court encounters, which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer.” (492)

21                  These passages from the judgments in Mulholland’s case were quoted and adopted by the Full Court of the New South Wales Supreme Court in Re Buchanan (1964) 65 SR (NSW) 9 and by Kaye J in Hancock v Lynch [1988] VR 173 at 177-178.

22                  Over and above these twin issues of relevance and necessity is the need to proceed in matters such as this with “great caution”.  In John Fairfax & Sons Pty Ltd v McRae [1954-1955] 93 CLR 351 at 370 Dixon CJ and Fullagar, Kitto and Taylor JJ discussed the scope of the summary jurisdiction to punish for contempt.  They said that the scope was “wide” but they also said:

“On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case.  A penalty will not be imposed in its exercise ‘unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference’ – per Cotton LJ in Hunt v Clarke (1889) 58 LJ (QB) 490 at 493, quoted by Lord Russell CJ in Reg v Payne (1896) 1 QB 577 at 581.  Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction.”

23                  I regard it as incumbent on me, therefore, to proceed in this matter with great caution.  Even though there is a clear case of a failure on the part of Ms Saunders to comply with a specific order of the court, I consider that I must additionally examine these two issues of relevance and necessity.  Before I do that, however, I wish to consider the submission that has been advanced on Ms Saunders’ behalf to the effect that her spiritual beliefs and her adherence to Aboriginal law and custom would either relieve her from complying with the order of the Court or, at least, classify her conduct as no more than a technical contempt.

24                  Mr White QC, counsel for Ms Saunders, submitted that the position in which Ms Saunders found herself was stronger than that of the journalist who is bound by a professional code of ethics not to reveal his or her source of information.  He submitted that Ms Saunders was acting out of a very high and very significant spiritual belief:  her traditions and her customs forbade her to produce this material.  Mr White said that the position in which Ms Saunders found herself was more closely associated with that of the priest and the penitent.  Her circumstances were so unique that, at the least, the Court should regard her conduct as no more than a technical contempt, if indeed her conduct could properly be regarded as a contempt.

25                  I respect Ms Saunders beliefs; there has been no suggestion, either in evidence or by submissions, that they are not genuinely held; but I cannot find any comfort in aligning her predicament either with a journalist or with a priest.  Although the role of the latter has been ameliorated through statutory intervention in some – but not all – of the States, it remains a fact that at common law, neither the journalist nor the priest enjoys any measure of privilege.  I mention – only for the sake of completeness – that no argument was advanced on Ms Saunders’ behalf that some form of public interest immunity may have been available to her.  The test to determine whether such an immunity applies in a given case is 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.”

26                  It is recognised that Aboriginal law insists on certain subjects being kept secret.  Section 27 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 goes some way towards preserving that secrecy by giving to the Court power to conduct proceedings in camera.  Although von Doussa J did not consider that the provisions of s 35 of the Aboriginal Heritage Act 1983 (SA) were relevant to the issues that he had to consider when dealing with Ms Saunders, it is, nevertheless another example of the special consideration that a legislature has afforded to Aboriginal tradition.  It provides as follows:

“Except as authorised or required by this Act, a person must not, in contravention of Aboriginal tradition, divulge information relating to –

(a)     an Aboriginal site, object or remains; or

(b)     Aboriginal tradition.

Penalty:  $10,000 or imprisonment for 6 months.

(2)     Such information may be divulged with the authority of the Minister.”

Section 82 of the Native Title Act 1993 (Cth) also endeavours to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.  It provides:

“Rules of Evidence

(1)     The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2)     In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.”

The Rules of this Court additionally contain provisions that are designed to alleviate the difficulties that Aboriginal persons might feel about giving evidence on confidential matters:  see O 78 rr 31 to 36.

27                  The protection of the beliefs of Aboriginal people was considered in Aboriginal Sacred Sites Protection Authority v Maurice (1986) 10 FCR 104.  In the course of a land claim hearing under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the Commissioner (Maurice J) ordered the production of documents that referred to sacred sites.  The Sacred Sites Authority resisted production, claiming that the information in question had been gathered under a promise that it would be kept confidential, that the Aboriginal custodians were bound under Aboriginal law and custom to keep the information confidential and that disclosure would cause dismay, restrict the future flow of information  to the Authority and prejudice the standing of the Authority.  Maurice J held that there was an insufficient basis for a claim of public interest immunity, but that if he were wrong he would, on balance, favour disclosure of the material while he was sitting in camera.  The Authority’s appeal to the Full Court was unsuccessful.  In the course of his judgment however, Bowen CJ, nevertheless acknowledged that the Authority had been entitled to take objection to the production on the ground of public interest immunity in the sense that it was entitled to have the detriment to the public interest that would be involved in disclosure weighed in the balance against the detriment to the public interest involved in non-disclosure (at 110).  Woodward J went so far as to say at 114:

“In my opinion, the proper protection of minority rights is very much in the public interest, as is respect for 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.  Thus I can well imagine a court finding on balance, for example, that the outrage in an Aboriginal community caused by a forced disclosure of information about a sacred site, would outweigh the importance in that particular criminal or civil trial of precisely identifying the place or explaining why it was sacred.”

28                  Maurice J had adopted the approach that if Aboriginal people wanted the protection of the legislation then they must be prepared to reveal sufficient about their sites to bring themselves within its umbrella.  Toohey J, the remaining member of the Full Court, did not think that was the way in which the Aboriginal Sacred Sites Act 1978 (NT) worked.  His conclusion was expressed in these terms at 130:

“While the Authority understandably treats as confidential information gathered by it relating to sites, the time must necessarily come when information will have to be disclosed in order to establish the existence of a sacred site, whether it be for the purpose of a prosecution or as a step towards declaration under the Act.”

29                  The combined effect of these judgments was to establish that claims of Aboriginal confidentiality can be made and that they may, in appropriate circumstances, be upheld.  But, as the law presently stands, a time will necessarily come when there must be some disclosure so that the claim can be tested.

30                  This recurring difficulty has most recently been discussed in Smith v Western Australia (2000) 98 FCR 358.  In that case Aboriginal claimants for a determination of Native Title opposed the application by the State of Western Australia that it have access to certain primary source anthropological documents.  Madgwick J acknowledged (at 363) that the protection of and respect for Aboriginal rights and beliefs are manifestly matters in the public interest.  Nevertheless, he went on to hold:

“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.”

31                  Although Ms Saunders’ bona fides were not challenged by the applicants and although I do not doubt the genuineness of her subjectively held beliefs, there are grounds for thinking that Ms Saunders has placed an unnecessarily heavy burden on herself.  She does not know the secret women’s business – nor does she have the restricted women’s knowledge as does Dr Kartinyeri.  Yet, as von Doussa J explained in Chapman v Luminis Pty Ltd [No 2]  2000 FCA 1010, Dr Kartinyeri found herself able to disclose these details to Dr Fergie in the knowledge that Dr Fergie might subsequently disclose them to the Minister.  That this did not happen is not the point.  The point is that, apparently, there is not, in Aboriginal law and custom, the total ban on disclosure that Ms Saunders is presently imposing upon herself.

32                  Mr White stressed that it was a matter that was intensely personal to Ms Saunders.  It was her conscience that should be considered.  He claimed that it was not to the point that Dr Kartinyeri may have seen fit, on another occasion, in different circumstances, to disclose details of the secret women’s business to Dr Fergie.  I do not agree with that submission – I do not believe that it has been established that there are or may be areas of selectivity among different persons.  Ms Saunders was not suggesting that it was in order for some women (of whom Dr Kartinyeri may be one) to make disclosure but that she (Ms Saunders) was not one of them.  She was claiming, notwithstanding Dr Kartinyeri’s conduct, that her culture did not permit her to make any disclosure.  I find that this puts her in conflict with the actions of Dr Kartinyeri.

33                  In my opinion, it would not be appropriate to excuse Ms Saunders from producing the material because of her personal beliefs.  As is evident from the decisions in Aboriginal Sacred Sites Protection Authority v Maurice and Smith v Western Australia and from theRules of Court, protective orders could be fashioned by the Court so that the use to which the material was put was heavily controlled.  von Doussa J has already done this in the substantive trial; the effect of his particular order was that changes to counsel had to be made so that only female counsel and Court staff were present in Court during a particular stage of the hearing.  That, of course, is merely an example of the steps that the Court will take, but it serves as tangible evidence of its willingness to assist Aboriginal people in these very important areas.  The Court would have been greatly assisted if Ms Saunders had adopted a more conciliatory approach.  Rather than a blanket refusal to hand over the material – after all the notebooks were not her property and the contents of the disk were unknown to her – she might have considered some request to the Court in the hope of achieving a compromise position.  Were it not for my findings on the question of necessity, which are discussed later in my reasons, I would have been compelled to conclude that Ms Saunders’ actions amounted to a contempt of Court and I would not classify it as a “technical contempt”.

34                  I turn then to the questions of relevance and necessity.

35                  The applicants have submitted, correctly in my opinion, that they have established, to the required degree of satisfaction, that production of the material would be relevant to the conduct of the substantive proceedings.  I am content to rely on what von Doussa J said on this subject in Chapman v Luminis Pty Ltd [No 2] 2000 FCA 1010 at par 25:

“The applicants contend that information as to the contents of the secret envelopes and information regarding restricted women’s knowledge of Ngarrindjeri tradition is relevant to issues raised by their pleadings.  In my opinion that submission is correct.  The allegations of misleading and deceptive conduct pleaded against Luminis and Dr Fergie inevitably involve an assessment of whether the conclusions expressed by Dr Fergie were justified having regard to the information that was available to her.  Her conclusions were, according to her report and her evidence, substantially based upon information recorded in Appendix 2 to her report.  Knowledge of the contents of the secret envelopes is also relevant in the assessment of whether that information was recently fabricated, or whether it finds support from, and has some relationship with, other aspects of Ngarrindjeri history, culture and tradition about which evidence has been given.”

36                  Even though I am prepared to accept that the material is relevant, the applicants have not informed me how they would use it with respect to the evidence of any witness in the trial.  It is not for me to speculate on either its value to the applicants or its importance to the trial.  The obligation to supply that information rests on the applicants.  Mr White submitted that neither the statement of charge nor Mr Palyga’s affidavit addressed the question of necessity.  The applicants have made no attempt, so he said, to explain the manner in which the material would or might be used in the trial.  If the applicants have closed their case, would it be necessary to apply for leave to reopen it?  Would it be necessary to apply for leave to have witnesses recalled for further examination or cross-examination?  Indeed, what forensic importance makes the production of the material necessary?  These are all justifiable questions in my opinion.

37                  It is a matter of record, in respect of which I can take judicial knowledge, that the substantive trial began on 13 December 1999.  No explanation was advanced that would explain why the applicants waited until 2 August 2000 to serve the subpoena on Ms Saunders.  Perhaps the answer was that they did not know earlier of her involvement.  But I cannot assume that such an innocent explanation exists.  The applicants should have explained why it was that, so late in the case, they took this action against Ms Saunders.

38                  In Champan v Luminis Pty Ltd (No 3) 2000 FCA 1120, von Doussa J discussed the likely ramifications of Ms Saunders refusing to produce the material.  At par 27 of his reasons his Honour said:

“I indicated to the parties on 7 August 2000 that in the event that Ms Saunders maintained her refusal to produce the documents, and did not comply with the order, I would take no action on my own motion in respect of that failure.  It would be for the applicants to decide what if any action would be taken.  I indicated that if compliance did not occur and were the applicants to commence proceedings against Ms Saunders in respect of that non-compliance, I would not interrupt the trial of these proceedings to hear that application.  In my opinion this long running trial should proceed without further delay, and if collateral proceedings arise against Ms Saunders, they should be heard by another judge.”

39                  The approach adopted by his Honour was in marked contrast to his action when he, as an Inspector appointed under the Securities Industry (South Australia) Code, applied to the South Australian Supreme Court for an order that Peter John Owens “be punished in like manner as if he had been guilty of contempt of Court”.  On that occasion his Honour had been appointed to inquire into certain dealings involving Elder Smith Goldsborough Mort Ltd.  Mr Owens refused to answer certain questions that the Inspector had directed him to answer.  The questions related to the identity of two overseas corporations on whose behalf Mr Owens had claimed, in evidence before the Inspector, that he had acted in the purchase of shares in Elder Smith Goldsborough Mort Ltd.  Although it was the order of the Supreme Court that led to Mr Owens’ imprisonment, the order was made by originating summons at the instigation of the Inspector who, like the trial judge in these substantive proceedings was presiding over the fact finding exercise:  see von Doussa v Owens (No 2) (1982) 30 SASR 391.

40                  It was open to his Honour to deal with Ms Saunders under O 40 r 1 and issue a warrant for his arrest; in my opinion, it would have also been open to his Honour, under ordinary case management principles, (as to which see O 10 subr 1(1)) to direct the applicants to instigate the proceedings that they elected to instigate.  But his Honour chose not to follow either of those options

41                  I find it curious that the applicants have chosen to institute these proceedings against Ms Saunders when they could have instituted – but for unspecified reasons have chosen not to institute – like proceedings against Dr Kartinyeri.  This subject was discussed by von Doussa J in his judgment in Chapman v Luminis Pty Ltd [No 2] 2000 FCA 1010 at par 12 where his Honour said:

“The contents of the secret envelopes have never been publicly disclosed, and are not known to any of the parties involved in this litigation apart from Dr Fergie and Professor Saunders.  Dr Kartinyeri refused to reveal the restricted knowledge when giving evidence in this Court and no steps were taken to compel her to do so by the applicants.  Counsel for the applicants sensibly chose not to force the issue with Dr Kartinyeri, but is now concerned to pursue the issue with Dr Fergie.”

Later, in par 39 of his judgment, his Honour commented:

“Dr Kartinyeri’s evidence indicates that she was a custodian of the particular knowledge, and the evidence does not suggest that anyone else in the Ngarrindjeri community would be able to offer better evidence than she has done about restrictions imposed on its disclosure.”

42                  This then leads me to the position of Dr Fergie.  On 31 August 2000 his Honour issued detailed directions for the conduct of a restricted hearing of Dr Fergie’s evidence concerning the restricted women’s knowledge.  However, I do not know whether Dr Fergie has completed her evidence.  If she has, did she disclose the detail of the restricted women’s knowledge and if she did, does it remove the utility of this application?  If Dr Fergie has completed her evidence and Ms Saunders, for one reason or another, changes her mind and produces the material, could Dr Fergie be recalled?  After all von Doussa J made it clear that he would not hold up the trial to await the outcome of this application.

43                  Mr Meyer, counsel for the applicants submitted that one particular matter of importance and necessity, that warranted the production to the Court of the material, centred upon the evidence of Mr Tickner.  When the time comes for him to give evidence it would be important, said Mr Meyer, to have the contents of the notebooks and the disk put to him so that he might be asked whether he would have made the orders under ss 9 and 10 of the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) if he had known their contents.  There is, of course, force in this submission even though there is no evidence before me upon which I could proceed with confidence to assume that Mr Tickner will give evidence in the trial.

44                  Bearing in mind the heavy onus that the applicants carry, I find myself not satisfied that they have led the evidence that would be needed to satisfy me beyond reasonable doubt, that it would be necessary for Ms Saunders to produce the notebooks and the disk.  In coming to this conclusion, I have found that the totality of the following factors have influenced my decision:

·                 the failure of the applicants to address the subject of necessity in the statement of charge and Mr Palyga’s affidavit;

·                 the failure of the applicants to explain how they would or might make use of the material if it were produced and the extent to which (if at all) its late production would affect or interrupt the progress of the trial;

·                 the failure of the applicants to explain why the subject of Ms Saunders and her custody of the material was not addressed until August 2000, some eight months after the start of the trial;

·                 the failure of the applicant to explain why this action had been taken against Ms Saunders and not against Dr Kartinyeri;

·                 the decision of von Doussa J not to take action against Ms Saunders on his own motion.

45                  The weight of these factors had led to conclude that the applicants’ notice of motion must be dismissed with costs.

Associate:

Dated:              6 October 2000