FEDERAL COURT OF AUSTRALIA

Bropho v State of Western Australia [2005] FCA 941

EVIDENCE – affidavits – objections - rulings

Evidence Act 1995 (Cth) ss 59, 72, 78, 78(a), 155, 156, 157, 170, 171, 172, 190(3)

Coroners Act 1996 (WA) ss 26(2), 48(5)

Public Sector Management Act 1994 (WA)

Reserves (Reserve 43131) Act 2003 (WA)

Federal Court Rules O 33 r 5

Gerhardy v Brown (1985) 159 CLR 70 cited

Sportodds Systems Pty Ltd v New South Wales (2003) 202 ALR 98 cited

BELLA BROPHO ON BEHALF OF THE MEMBERS OF THE SWAN VALLEY NYUNGAH COMMUNITY ABORIGINAL CORPORATION AND ABORIGINAL INHABITANTS OF RESERVE 43131 v STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY and BARRY CHARLES JAMESON

WAD 157 of 2003

NICHOLSON J

8 JULY 2005

PERTH

REASONS FOR JUDGMENT

1                     These reasons address matters arising from pars 3 – 12 of the applicant’s re-amended notice of motion filed on 23 February 2005.

2                     Paragraphs 3 – 11 of the motion raise objections to the admission of affidavits tendered by the respondents.  Paragraph 12 raises issues in relation to documents. 

3                     Having considered the written submissions of the parties, I rule as follows in relation to these matters.  The rulings are responsive to the written submissions and use the terms appearing in those submissions.

affidavit of caroline jane brazier

Paragraphs 12 – 14

4                     Objection withdrawn.

Paragraph 15

5                     Admission conceded by the respondents as evidence of the fact that the deponent had serious concerns about the safety of women and children on Reserve 43131 (‘the Reserve’) and about the management of the Reserve before 13 June 2003 and not on any other matter. 

paragraph 20

6                     The exhibits ‘CJB-1’ and ‘CJB-2’ are records of the Department of Community Development (‘DCD’) in the custody of the Director General who was a party at the Coronial Inquiry.  I agree with the respondent that they may be appropriately tendered through Ms Brazier as evidence of information known to the first respondent:  see ss 155, 156, 170, 171 and 172 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), alternatively s 157.

paragraphs 16 – 67

7                     Paragraph 15 states that prior to 13 June 2003, when an administrator was appointed to manage the Reserve, the deponent had serious concerns about the safety of women and children on the Reserve and about the management of the Reserve.  In par 16 Ms Brazier states that ‘those concerns were based on the concerns expressed to me by officers in senior management positions in the Department who were aware of disturbing information such as the following matters:- …’.  Paragraphs 17 – 67 list various information.

8                     The applicant concedes pars 17 – 67 are admissible as evidence of the fact that officers in senior management positions in the DCD told the deponent that those occurrences had happened or were happening.  However, the applicant does not concede they are admissible as evidence as to the truth that those things happened or were happening.  That position is not contested by the respondents.

9                     As to par 16, the applicant concedes it is admissible as evidence of the fact that officers told the deponent they had concerns and were aware of the disturbing information.  The applicant contends the paragraph is not admissible as evidence that officers in senior management positions had concerns or were aware of disturbing information.  The respondents contend the paragraph falls within the exception to the hearsay rule provided in s 72 of the Evidence Act in respect of ‘a representation made by a person that was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind’.  Reliance is also placed, so far as may be necessary, on s 78 where the evidence of someone having a concern may be an opinion.  I agree with the respondents that the exception is applicable and that par 16 is admissible as evidence that the officers had concerns or were aware of disturbing information.

paragraphs 70 – 71

10                  The applicant concedes that these paragraphs are admissible as evidence of the deponent’s opinion of what constituted the opinion of the meeting on 14 March 2003.  As such, it may also be evidence of what the deponent heard persons say at the meeting about Mr Robert Bropho or others. 

paragraph 74

11                  The applicant concedes the paragraph is admissible as evidence of the fact that the deponent agreed with Tara Gupta’s advice ‘that the draft management plan did not in good faith address the conditions in the management order’.  It is not disputed by the respondents that the concession is not a concession of the fact that the draft management plan did not in good faith address the conditions of the management order. 

paragraphs 75 and 76

12                  It is conceded by the applicant the paragraphs are admissible as evidence of the fact that the deponent believed that the statements quoted were inconsistent with cl 3 of the Annexure to the Management Order.  The respondents do not dispute that the paragraphs are not admissible as evidence of any other fact.

Paragraph 77

13                  The applicant concedes the paragraph is admissible as evidence that the deponent was told by Ms Lacey that Ms Egan had told Ms Lacey certain things.  It is not disputed that it is not admissible as evidence of any other fact.

paragraph 79

14                  The applicant concedes this paragraph is admissible as evidence of:

(a)                the fact that the deponent believed that what was happening at the Reserve was inappropriate; and

(b)               the fact that the deponent and the other Directors General of the Gordon Implementation Group told the Premier that it was their opinion that the management of the Reserve had no intention of addressing in good faith the requirements of the management order of October 2002 and that strong action was warranted. 

It is not disputed that it is not admissible as evidence of any other fact.

paragraphs 80 – 81

15                  The applicant has withdrawn the objection.

paragraph 84

16                  This paragraph is admissible to the limited extent that it is not admitted to prove the facts in Mr Daube’s letter but only to explain why the respondents acted as they did.

paragraphs 87 – 94

17                  The objection to par 87 is withdrawn by the applicant.  The applicant concedes in relation to par 88 it is admissible as evidence that the deponent advised the Government that action needed to be taken to change the management of the Reserve to better protect the safety of women and children associated with it. 

18                  Paragraph 90 is not sought to be admitted to prove the truth of any asserted fact and is admissible as opinion evidence about a matter or event that the deponent saw, heard or otherwise perceived:  s 78(a) of the Evidence Act. 

19                  Paragraph 91 is admissible as evidence that the deponent believed there was a culture of harassment, intimidation and fear which prevented the victims of violence and abuse from reporting their concerns to Government officers, including DCD and the police.  Likewise, the applicant concedes par 92 is admissible as evidence that the deponent believed the Swan Valley Nyungah Community (‘SVNC’) was firmly controlled by Mr Robert Bropho and close members of his family, including his sons Herbert and Harvey Bropho and that the deponent believed that these were the main people who were the subject of allegations of physical and sexual abuse and intimidation.  Neither par 91 or par 92 is admitted for any other reason. 

20                  Paragraph 93 seeks to address the deponent’s intention and advice that only certain persons would be removed from the Reserve.  Paragraph 94 likewise addresses the nature of the deponent’s advice to Government.  They are not sought to be admitted as evidence of decisions made or not made by Government.  They are admissible as statements of fact about what the deponent did or thought or heard and for no other purpose.

AFfidavit of Graeme john Searle

paragraphs 20 – 26

21                  It is common ground that Annexures GS-10 to GS-16, tendered by these paragraphs, are not admissible as to the truth of their contents but are otherwise admissible. 

paragraphs 30 and 31

22                  The respondents concede these paragraphs are hearsay.  However, they seek an order under s 190(3) of the Evidence Act waiving the application of s 59 on the ground that the evidence is not genuinely in dispute and the calling of further witnesses to establish those matters would cause unnecessary delay.  The objections are taken on the ground of hearsay.  Paragraph 30 addresses a meeting, said to have been held on 27 September 2002 at the Reserve.  Paragraph 31 addresses a telephone conversation of 8 October 2002 in relation to changes of conditions for the proposed Management Order.  As I do not presently have a response from the applicant to the respondents’ submission, I hold this matter over for resolution at a future directions hearing or other hearing.

paragraph 37

23                  This paragraph addresses a release of a media statement by the Minister on 13 October 2002.  The respondents submit the media statement is admissible as a contemporaneous document which evidences the first respondent’s purpose and belief at the time:  see substituted statement of claim at par 21(a).  On the face of the submissions the respondents’ view would appear to be correct but I hold the matter over at the same time as the resolution of the previous paragraph as I have not heard submissions in reply from the applicant. 

AFFIDAVIT OF BARRY CHARLES JAMESON

paragraph 9

24                  The objection in relation to par 9 is based on hearsay and opinion.  The evidence is not sought to be of use to prove that certain persons were preventing Government officers from having full and free access to the Swan Valley Nyungah Community.  It is admissible as evidence of what the third respondent was told and therefore why he acted as pleaded in par 10 and par 11 of the amended defence filed on 2 November 2004.  It is also relevant and admissible generally as to the first respondent’s purposes in enacting the Reserves (Reserve 43131) Act 2003 (WA) (‘the Reserves Act’). 

paragraph 11

25                  Here the deponent seeks to state that he was told by Mr Richard Curry and Ms Carolyn Petroboni that part of his role as administrator would be to consult with the Aboriginal community and relevant non-Aboriginal persons about possible future uses of the Reserve.  He seeks to state that he was told that the Government wanted the Reserve to continue to be used exclusively for the benefit of Aboriginal people. 

26                  The applicant concedes that the paragraph is admissible as evidence of the fact that the deponent was told that part of his role as administrator was to be as stated and that someone told him the Government’s wishes in relation to future use of the Reserve.  However, it is said that they are not issues so that the paragraph is not relevant.  The respondents state the evidence is relevant and admissible because the applicant does not own any relevant property; if the applicant does own any relevant property, there was no discriminatory infringement; the tenure and general history of the Reserve gave no right to freedom of movement and residence on it; and the Reserves Act is a special measure.  I agree that the evidence is made relevant by those issues in the proceeding and is therefore admissible to the extent conceded by the applicant apart from the issue of relevance.

affidavit of Irene mary thomas

paragraphs 6 – 8

27                  On the basis that the evidence will be used only to prove the information known to and believed by the respondents and not as proof that persons referred to in the paragraphs were resident on the Reserve, the objection is not allowed. 

paragraph 18

28                  The objection on the ground of opinion is not allowed on the basis that the evidence is to be used to go to the deponent’s understanding at the time, being a fact relevant to explain the deponent’s actions referred to in the affidavit.

paragraph 23

29                  To the extent conceded by the applicant that the evidence is admissible; that is, it is admissible as evidence that Danny and Robert Kickett told the deponent that Bella Bropho, Philomena Bropho, Denise Sambo and Charlotte Bropho were staying at the Saunder Street Community.

paragraph 29

30                  The objection on the ground of hearsay is not allowed on the basis that the evidence is used to go only to the deponent’s state of knowledge.

paragraph 30

31                  The hearsay objection is not allowed on the basis that the evidence is admissible for the purposes conceded by the applicant and not of any other fact. 

paragraph 31

32                  In this paragraph the deponent seeks to state that certain persons and four children were given temporary accommodation by DCD between certain dates because of concerns for their safety due to threats from a named person.  The objection is on the ground that it expresses the deponent’s opinion.  However, the evidence is advanced by the deponent as the manager of the relevant DCD office and the person with responsibility for arranging the temporary accommodation and hence states the reason she did so.  I agree with the respondents that in the event the evidence is opinion it is admissible as a consequence of s 78 of the Evidence Act.  It is not therefore admissible as evidence that in fact threats had been made by the named person. 

paragraph 34

33                  The applicant concedes that the words to which a hearsay objection is taken are admissible as evidence of what was said to the deponent and it is not contested they are not admissible as evidence of any other fact. 

paragraph 35

34                  The respondents concede this is not admissible. 

paragraph 38

35                  The applicant has withdrawn the objection.

Paragraphs 39 and 40

36                  The respondents will not be relying upon these paragraphs at trial. 

affidavit of david john pedler

paragraph 7

37                  This evidence is admissible so far as it states the deponent’s stated knowledge and belief at the time but it is not admissible to prove the truth of the asserted facts.

paragraph 15

38                  The applicant has withdrawn the objection.

paragraph 26

39                  This paragraph is admissible to prove what was expressed in the briefing note to which it refers and as to the deponent’s opinion but not to prove the truth of any particular facts about which the opinion was expressed.

paragraph 34

40                  The applicant concedes its admissibility as evidence of what Ms Rebbeck told the deponent but not otherwise. 

paragraph 35

41                  The applicant concedes that the relevant portion the subject of the objection is admissible as evidence that the deponent made the comments referred to in that portion to Helen Phelan but not otherwise.

paragraph 37

42                  The first sentence is admissible as evidence of what the deponent was told and therefore why he acted as he did and the admissibility of the remainder is conceded so far as it goes to what Robert Kickett told the deponent but not otherwise. 

paragraph 39

43                  The applicant’s objection is withdrawn.

Paragraph 44

44                  This is admissible so far as it goes to what was known to the deponent but not as to proof of the circumstances referred to in the statement.

paragraph 45

45                  The applicant concedes that apart from the last sentence this evidence is admissible as evidence that the deponent believed the matters referred to in it.  The last sentence reads ‘I have also been told that by numerous members of the broader Aboriginal community’.  I agree with the respondents it is admissible as evidence of what the deponent had been told but not as evidence of the truth of the facts referred to in it. 

paragraph 46

46                  The applicant concedes this is admissible as evidence of what the deponent believed but not as evidence of any other fact.

paragraph 47

47                  The applicant concedes this is admissible as evidence of what the deponent believed but not as evidence of any other fact.

affidavit of roland james bayman

Paragraph 7

48                  To the extent the applicant concedes admissibility as evidence of fact, the evidence is admitted. 

paragraph 10

49                  The objection to relevance is not allowed on the basis that there is other evidence in the affidavit of David Pedler, sworn 5 December 2003 at par 11 going to the facts which the paragraph addresses.

paragraph 19

50                  The applicant has withdrawn this objection.

paragraph 24

51                  The paragraph is admissible as evidence of what the deponent was told but not as evidence about whether in fact the girl’s needs were being adequately met.

paragraph 25

52                  The applicant has withdrawn this objection.

paragraph 27

53                  The reference to past experiences said to be when Mr Robert Bropho had sought to deny DCD officers access to the Reserve and had threatened them, are admissible as information known to and believed by the deponent but not as truth of the circumstances where referred to.

paragraph 31

54                  This paragraph is admissible as evidence to the extent conceded by the applicant. 

paragraph 34

55                  The applicant has withdrawn this objection.

paragraph 35

56                  The applicant has withdrawn this objection.

paragraph 36

57                  The objection to this paragraph is likewise withdrawn.

paragraph 39

58                  I agree with the respondents that evidence of the contents of a letter is evidence of fact and is not hearsay provided it is not sought to be adduced to prove the facts asserted in the letter.  The paragraph is admissible on that basis.

paragraph 41

59                  This evidence is admissible on the basis that it proves what the deponent was told and is explanatory of the actions in going to the Reserve, but not beyond that.

paragraph 42

60                  This objection has been withdrawn by the applicant.

paragraph 43

61                  The evidence is admissible to the extent conceded by the applicant.

paragraph 44

62                  The paragraph is admissible to prove what the deponent was told and therefore why Ms Parfit was placed in emergency care but not otherwise. 

paragraph 45

63                  This paragraph is admissible to prove that the first respondent was aware of an allegation that Mr Robert Bropho sexually assaulted Ms Parfit at the Reserve but not as evidence of any such alleged offence. 

paragraph 46

64                  The paragraph is admissible for the purpose conceded by the applicant, namely, going to what the deponent believed. 

paragraph 47

65                  This paragraph is admissible as evidence of what the deponent believed. 

supplementary affidavit of terrence joseph daly sworn 19 February 2004

66                  The basis of the deponent’s knowledge appears from par 2 of the affidavit and from the affidavit sworn by him on 5 December 2003.  Understood in that light, the objection on the ground of hearsay is not allowed.  So far as the affidavit is based on summarising public documents, it receives support from ss 156, 170, 171 and 172 of the Evidence Act.  It is not necessary for any order presently to be made under s 190(3) of the Evidence Act. 

affidavit of lynsey sarah warbEy

Paragraph 6

67                  The applicant objects to this paragraph on the ground it expresses the deponent’s opinion.  The paragraph refers to the Gordon Inquiry being triggered by the Government’s consideration of the Report of the Coroner into the death of a 15-year-old Aboriginal girl on the Reserve.  The respondents say that the deponent is an officer of the Department of the Premier and Cabinet with extensive personal involvement in the Gordon Inquiry (as deposed to in her affidavit) and can give ‘first-hand’ evidence as to why the first respondent (the State) acted to establish the Gordon Inquiry.  Section 78 provides the opinion rule does apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event.  So long as the paragraph is admitted only on the basis it states the deponent’s perception it would be within the requirements of s 78.  It is admitted on that basis only.

paragraph 8

68                  The applicant takes objection to Annexure LSW-2 being a copy of Part 5 of the Gordon Inquiry Report.  The objection is on the basis related to the applicant’s submissions on the admissibility of disputed documents.  The respondents are not seeking to have extracts from it admitted into evidence as proof of particular facts pursuant to O 33 r 5 of the Federal Court Rules (‘FCR’).  It is sought that the document be evidence of information which was known to the first respondent, and which would be evidence going to the public interest and reasonable concern on the part of the first respondent.  The documents, it is submitted, are highly relevant to the Court in assessing whether the Reserves Act is a special measure.  It is admitted on that basis. 

paragraphs 13 – 20

69                  Here, again, various annexures are objected to on the ground of hearsay.  The respondent does not seek to adduce them as evidence of any asserted facts in the documents.  As with the document in par 8, they are admissible through an officer of the Department of the Premier and Cabinet as a person with custody of and in position of responsibility in relation to the documents:  ss 155, 156, 170, 171 and 172 of the Evidence Act.  If any further objection is taken to the documents being tendered through Ms Warbey’s proof of the correspondence, the respondents may seek an order pursuant to s 190(3) of the Evidence Act. 

paragraph 23

70                  In this paragraph the deponent sets out reasons why a particular meeting was called.  As the meeting was convened by her, the subject matter of the meeting is evidence of fact, not opinion as the objection would have it. 

paragraph 24

71                  This paragraph deals with discussion at the meeting.  The applicant concedes it is admissible as evidence of the deponent’s opinion of what was said and the respondents agree it is not admissible to prove the truth of facts asserted by those at the meeting.  It is admitted to the extent conceded by the applicant.

paragraph 25

72                  The applicant has withdrawn this objection. 

paragraph 26

73                  The applicant concedes this paragraph is admissible as evidence of the deponent’s opinion of the outcome of the meeting.  However, as the meeting was convened by the deponent the evidence is of fact, not opinion. 

paragraph 27

74                  The evidence in this paragraph is at least admissible on the basis conceded by the applicant, namely, that relating to the deponent’s belief.  The respondents seek to have it additionally admitted as evidence to prove as a fact the Government’s intention in relation to the Reserve at the time.  In my view, it can do no more than establish the deponent’s understanding of that position.

paragraph 29

75                  The applicant accepts this is admissible as evidence of the fact of what was agreed at the meeting on 29 November 2002 by agency representatives. 

paragraph 30

76                  The applicant concedes this is admissible as evidence of the deponent’s opinion of the outcomes of the meeting which it addresses.

paragraph 31

77                  This paragraph states the deponent’s understanding Mr Pedler from the Department of Indigenous Affairs contacted the SVNC management on 2 December 2002, but could not meet with them as planned.  Objection is taken on the ground of hearsay.  The respondents say that this is admissible as evidence of the deponent’s understanding as it is part of the chronology of events from Ms Warbey’s perspective.  It is not sought to be admitted to prove the truth of the fact asserted.  Admission on the limited basis proposed is therefore allowed.

paragraph 33

78                  Again, this paragraph is admissible only on the basis that it is evidence of the deponent’s understanding.

paragraph 34

79                  This paragraph is admissible on the basis conceded by the applicant.

paragraph 35

80                  The applicant concedes this paragraph is admissible as evidence of what the deponent heard was the Government’s response to the Gordon Inquiry Report.  I do not agree with the respondents that it is evidence of the fact of the Government’s published response to the Gordon Inquiry Report.  The nature of the Government’s response is open to proof in other ways and is not dependent upon what the deponent says it stated. 

paragraph 41

81                  The applicant concedes this is admissible as evidence of the fact that the participants in the meeting in question said that their departments were undertaking efforts to improve the conditions within the SVNC.  The applicant also concedes the paragraph is admissible as evidence of the deponent’s opinion on the consensus of the meeting.  The respondents submit that evidence of what was agreed by those present at the meeting is evidence of fact.  While the deponent was not the convenor of the meeting, under s 78 her evidence in this respect can be admitted as to what she saw, heard or otherwise perceived about the meeting. 

paragraph 42

82                  The respondents do not seek to tender document ALW-12 as evidence of any asserted facts in it.  The document is contained in the evidence of an officer of the Department of the Premier and Cabinet and is admissible through her as a person with the appropriate custody.  Any consequent hearsay objection can be addressed later under s 190(3) of the Evidence Act.

paragraph 45

83                  The paragraph is admissible on the basis conceded by the applicant.

paragraph 46

84                  The paragraph is admissible on the basis conceded by the applicant.

paragraph 47

85                  The paragraph is admissible on the basis conceded by the applicant.

paragraph 49

86                  Objection is taken on the ground of opinion to the words ‘as being a realistic option to be actively investigated’ in relation to the option of removing the control of the Reserve from Mr Robert Bropho.  The way the evidence is cast, I consider that the words are an expression of opinion and not of fact agreed by those present at the meeting.  The objection is allowed.

paragraph 51

87                  The applicant has withdrawn this objection.

paragraph 52

88                  This paragraph addresses issues of fact being the understanding at the time of the meeting in question.  It is admissible on that basis. 

paragraph 53

89                  This paragraph is admissible on the same basis as par 52.

paragraph 54

90                  This paragraph is admissible only on the limited basis conceded by the applicant.  It is not in its terms evidence of a fact at the meeting.

paragraph 55

91                  This evidence of what officers of the first respondent said and did at various meetings is evidence of fact, admissible to prove the state of the first respondent’s knowledge and belief and purposes at the time.  To the extent it may involve opinion, it is admissible by reason of s 78 of the Evidence Act.

paragraph 57

92                  This paragraph is admissible on the same basis as par 55.

paragraph 58

93                  This paragraph is admissible on the same basis as par 55.

paragraph 59

94                  The objection on the ground of relevance is not allowed given that it is evidence relevant to establish the first respondent’s intention and purpose.

paragraph 62

95                  The applicant objects on grounds of hearsay to the admission of Annexure LSW-13 being an Aboriginal and Torres Strait Islander Commission (‘ATSIC’) press release of 14 May 2003.  The respondents assert relevant to the defence of ‘special measure’.  However, relevance is not the ground of the objection.  Certainly, the deponent could give evidence that she observed the press release being issued but that is not what the objection is directed to.  The ATSIC press release is an official document admissible in other ways.  I would allow the objection. 

paragraph 64

96                  Likewise, the objection is allowed to the admission of Annexure LSW-14 (Parliamentary Debates) by means of the evidence of this deponent. 

paragraph 65

97                  Objection is taken to Annexure LSW-15 (a letter to the Premier from the Swan Valley Nyungah Community Aboriginal Corporation) being admitted.  However, this is a document in the deponent’s custody admissible through her evidence:  ss 155, 156, 170, 171 and 172 of the Evidence Act.

paragraph 68

98                  This paragraph is objected to on the ground that it states the deponent’s opinion of the Government’s opinion.  That shows the basis of its admissibility: understood in the context of the deponent’s qualifications and the total affidavit, it is evidence of what the deponent saw, heard or otherwise perceived about the Government’s policies.  I would not allow the objection. 

paragraph 69

99                  The evidence is admitted on the basis conceded by the applicant. 

paragraph 70

100               This paragraph is objected to on the ground it consists only of the opinion of the deponent about what has happened since the Reserves Act was passed and that opinion is not relevant to a fact in issue in the proceedings.  The respondents contend the evidence is admissible because it goes to the first respondent’s purpose in passing the Reserves Act.  It is admitted on the limited basis that it goes to that purpose.

affidavit of terrence joseph daly sworn December 2003

paragraph 6

101               The objection is to words relating to the Kicketts and what they said.  The evidence is admitted for the limited purpose of proving what the deponent was told.

paragraph 10

102               This is opinion evidence admissible by reason of s 78 of the Evidence Act and evidence of fact observed by the deponent. 

paragraphs 11 and 12

103               Admission is not sought to prove the truth of facts asserted in it and it is admitted on the limited basis of relevance in relation to proof that the first respondent offered housing assistance.

Paragraph 13

104               This paragraph is admitted on the same basis as par 11 and par 12.

paragraph 14

105               This paragraph is admitted on the same basis as par 11 and par 12.

paragraph 15

106               This paragraph is admitted on the same basis as par 11 and par 12.

paragraph 17

107               The first reference to words in the paragraph is admitted on the same basis as par 11 and par 12.

108               As to the second set of words relating to Mr Robert Bropho’s ‘staying there’, it is apparent from the words ‘it also appeared to me’ that the basis of the deponent’s belief is personal observation.  It is therefore admissible as opinion evidence pursuant to s 78 of the Evidence Act.

paragraph 18

109               This paragraph is admitted on the same basis as par 11 and par 12.

paragraph 20

110               This paragraph is admitted on the same basis as par 11 and par 12 so far as the words attracting objection are concerned.

objections to documents

document 14:  extracts from evidence to coronial inquiry

111               The applicant’s objection is that evidence taken in other proceedings cannot be introduced into evidence in this Court without leave pursuant to FCR O 33 r 5 and no application for such leave has been made.  The applicant would oppose it if it were brought.  Further, the applicant contends the respondents are prohibited from relying on the extracts by the Coroners Act 1996 (WA) (‘the Coroners Act’), s 26(2) and s 48(5) in particular having application.  In view of that prohibition it is said that it is not open to the Court to grant leave.  If an application for leave is nevertheless brought, the applicant sets out grounds on which it would oppose a grant of leave. 

112               The respondents are not seeking to have extracts from the evidence of the Coronial Inquiry and the Coroners Report admitted into evidence in these proceedings as proof of particular facts.  Hence, no application for leave is made pursuant to FCR O 33 r 5.  The respondents intend that the documents be evidence of information of what was known to the first respondent, evidence it is said that goes to the public interest and reasonable concern on the part of the first respondent.  In this respect, the respondents say they have deliberately pleaded ‘reasonable concerns’ rather than actual facts and it is not their intention at trial to prove actual facts.  Their case will be that they were justified in acting on the basis of a credible body of allegations and other concerns.  Additionally, the respondents submit that the documents highly relevant to the Court assessing whether the Reserves Act is a special measure and are admissible for that purpose. 

113               In my opinion, the documents are not being admitted for any hearsay or opinion purposes and only for the purposes delineated by the respondents’ submissions, thus they are admissible on that limited basis.  The provisions of the Coroners Act are no barrier in that respect.  The prohibition of the use of coroners records as evidence in any court of law imposed by the above provisions of the Coroners Act is one which is applicable where it is used in respect of ‘any fact asserted in it’.  That is not the basis on which the admission is sought so there is no inconsistency with that provision.

document 15:  report of coroner

114               The same reasoning applies to this as to document 14. 

document 17:  direction establishing gordon inquiry

115               The applicant objects to the introduction of this because it is said to be subject to Parliamentary privilege.  However, the respondents state that the Inquiry was established under the Public Sector Management Act 1994 (WA) so that no question of such privilege arises.  It is relevant to prove the existence in terms of reference of the Inquiry.  On the basis that it was established in the way the respondents assert, it is admissible. 

document 18:  extracts from gordon inquiry transcripts and evidence

116               Again objection is taken by the applicant on the basis that no leave has been granted pursuant to FCR O 33 r 5 and that it would oppose the grant of any such leave.  However, the respondents are not seeking to have the extracts admitted as proof of particular facts.  What is sought is that the documents be used as evidence of information which was known to the first respondent, that evidence going to the public interest and reasonable concern on the part of the first respondent relevant to the special measure issue.  None of the evidence in the document is being admitted for hearsay or opinion purposes.  The objection does not succeed. 

document 83:  parliamentary debates

117               The applicant objects to the introduction of this document because it is said to be subject to Parliamentary privilege.  The respondents assert Parliamentary debates are admissible for the purposes of determining whether the Reserves Act is a ‘special measure’.  Reliance is placed on Gerhardy v Brown (1985) 159 CLR 70 at 104, 113 and 142 and Sportodds Systems Pty Ltd v New South Wales (2003) 202 ALR 98 at [39] – [41]. 

118               As the respondents explain, this evidence is not sought to be admitted so that proceedings in Parliament can be tested or examined, as the applicant relies upon in its submissions.  It can be admitted as evidence of what the first respondent thought at the time.  The basis of admission is not such as would raise the issue of Parliamentary privilege.  Reference to the authorities relied on by the respondents show the accepted manner in which Parliamentary debates may be referred to.  I do not allow this objection.

Associate:

Dated:              8 July 2005