FEDERAL COURT OF AUSTRALIA

Lake Torrens Overlap Proceedings [2015] FCA 519

REASONS FOR RULING

1    On 1 May 2015, I gave a ruling on the status of certain documents which had been listed by one or other of the parties to this proceeding, or by South Australian Native Title Services Ltd (SANTS) as the native title representative body for South Australia under the Native Title Act 1993 (Cth) (the Act). That order was that the documents in dispute should be made available for inspection by the parties to this proceeding, subject to accommodating any particular restrictions on the extent of their inspection having regard to cultural considerations.

2    I indicated at the time that I would publish reasons for that ruling. These are my reasons for that ruling.

the context

3    The context for the ruling can be shortly stated.

4    The Lake Torrens Overlap Proceeding (as it is called by order made on 5 April 2013) involves two competing applications for the recognition of native title under s 61 of the Act over Lake Torrens in South Australia. One applicant represents the Kokatha people, as defined in the Kokatha native title determination: Starkey v State of South Australia [2014] FCA 924 (Starkey) and the other represents the Adnyamathanha No 5 Native Title Claim (SAD 277 of 2012). There has been a determination in the Kokatha claim in favour of the applicant on behalf of the Kokatha people in respect of land to the west of Lake Torrens, and in earlier claims on behalf of the Adnyamathanha people (not described in precisely the same way) in respect of the land to the east of Lake Torrens.

5    In the Lake Torrens Overlap Proceeding, apart from the Kokatha claimants and the Adnyamathanha claimants as the first and second applicants, the relevant parties for the present ruling are the State of South Australia, and Kelaray Pty Ltd (Kelaray) and Straits Exploration (Australia) Pty Ltd (Straits), two mining companies. Other respondents to the Lake Torrens Overlap Proceeding did not play any active part in the current issue.

6    To progress the matter to hearing, the Court initially made an order directing the filing and service of lists of the historical, anthropological and other expert reports held by each of the parties to the proceeding, and by SANTS. The directions given on 10 December 2014 and revised on 2 February 2015 required the provision of lists of documents, and where there was an objection to the document so listed being examined, to give a notice of that objection. It is that process which has led to the present dispute. Those orders contained directions to protect the proper cultural or other confidentiality of documents so listed and then produced for inspection: Orders 9 and 10. The inspection was confined to persons taking an active role in the Lake Torrens Overlap Proceeding, and any documents were not to be copied except for the purpose of that proceeding or to be used for any purpose other than that proceeding. Order 10 provided a structure for cultural confidentiality to be protected, including where the contents of certain parts of documents, might be restricted to male or female gender restrictions, either generally or in a more specific way.

7    The intention was to ensure that all parties have access to the appropriate documentary and expert material so that the further preparation of the Lake Torrens Overlap Proceeding for hearing could be progressed in an efficient way.

8    Those lists were duly filed in October and November 2014. The Deputy Registrar then prepared a consolidated list of the lists, eliminating duplication. The present issue concerns 6 of the 79 documents in the consolidated list of expert and anthropological reports provided by the parties and by SANTS. The question is whether the documents in that list numbered 21 and 40, and consequently documents 56, 55A, 46 and 59 should be available for inspection. The two primary documents are described in the consolidated list more fully as follows:

(21)    Cane, Scott, Wati & Wilyaru: Aboriginal associations with an area between Lake Torrens and Lake Gairdner, 5 July 2008 (the Cane Report); and

(40)    Habner, Jacob; Harding, Michael and Woenne-Green, Susan: Aspects of the Overlap between the Kokatha and the Barngarla Native Title claims, Confidential Report to the Kokatha Native Title claim. Report produced by ALRM Native Title Unit for the purposes of a National Native Title Tribunal (NNTT) mediation between the overlapping Kokatha and Barngarla claims (February 2006) (the Habner Report).

9    The proponent of the claimed confidentiality is SANTS. It says the Cane Report and the Habner Report should not be available for inspection at all.

10    The Cane Report was listed by the State and by the Adnyamathanha claimants (in both its draft and final terms) as well as by SANTS. The State is willing to make it available for inspection if the Commonwealth and relevant claimants release restrictions on it and related reports. The Adnyamathanha claimants seek to use it in this proceeding. It is clear that the Kokatha claimants also, at least in theory, have access to both reports; their solicitor and counsel engaged by SANTS, and counsel was instrumental in procuring them. Consequently, in practical terms, SANTS wants to prevent access to them by Kelaray and Straits. It has made no application to stop the Adnyamathanha claimants, or the State from using the copies they have.

11    The Habner Report was also listed by the State as well as by SANTS and, again, the State is willing to release it if all relevant claimants release asserted restrictions upon its accessibility, but do so with caution.

12    The State has also indicated that, whilst it is willing to release for inspection the further documents which it has listed and which are in issue, they substantially refer to the Cane Report or the Habner Report, and therefore contain material which – if it is confidential and should not be inspected in relation to the Cane Report or the Habner Report – should also be treated as confidential on the same basis. I note that those documents are documents (44) Haines, Dr Timothy, Supplementary Expert Report for Barngarla, November 2009, Report for the Barngarla Native Title Claimants; (55A), Sackett, Lee, Response to Dr Scott Cane’s Wati and Wilyaru (June 2008); and (59) Sansom, Basil, Responsive Comments on a Report by Dr Scott Cane (May 2008). It is not necessary to refer in detail to those reports, as it was accepted by all parties that the question of their accessibility for inspection would stand or fall with the status of the Cane Report and the Habner Report.

THE EVIDENCE

13    I note that the evidence of SANTS in support of the claim for privilege from inspection, and other material relied upon, comprises the following:

    affidavit of Karl Kirsten, affirmed 21 April 2015 and annexures;

    interlocutory application on behalf of the Adnyamathanha people seeking inspection of the Cane Report made on 8 July 2013 in this claim before the Kokatha consent determination in Starkey and the supporting affidavit of Osker Linde sworn on 21 June 2013;

    interlocutory application of Kelaray made on 12 November 2012 also in this proceeding before the Kokatha consent determination in Starkey;

    the further affidavit of Osker Linde of 29 April 2015;

    the affidavit of Peter Tonkin of 16 July 2013; and

    in separate earlier proceedings involving the Kokatha people (SAD 6013 of 1998), the affidavits of Osker Linde of 27 August 2008, and of Andrew Beckwith of 20 June 2008.

14    Kelaray and Straits relied upon the affidavit of Katie Bickford of 22 April 2015.

15    There was some debate about the admissibility of parts of the affidavit of Karl Kirsten, but ultimately that was resolved by counsel for SANTS indicating that his client did not rely upon the paragraphs of the affidavit to which objection was taken as proving more than the documents to which they referred were themselves capable of proving. There was also some cross-examination permitted of Mr Linde in relation to one of his affidavits concerning the circumstances in which, he said, Dr Cane came to be briefed and retained to provide the Cane Report. I have no reason to question the reliability of the evidence of Mr Linde in that regard, and indeed ultimately counsel for Kelaray and Straits did not contend that I should reject that evidence. To the extent that it is relevant to the resolution of the issues which I was asked to address, it is referred to below.

16    Finally, it is appropriate to note that the Lake Torrens area is part of earlier claims made variously by the Kokatha people (in some respects differently defined than as the present first applicant), by the Barngarla people, by the Arabana people, and by the Kuyani people. The detailed history of those earlier claims, all of which were either discontinued or dismissed, is set out in part in the judgment of Finn J in Kokatha People v State of South Australia [2007] FCA 1057, especially at [5]-[9], and earlier in Kokatha Native Title Claim, Barngarla Native Title Claim, and Arabunna Peoples Native Title Claim v State of South Australia [2006] FCA 838 at [1]-[2]. Hence, the earlier references below to the Kokatha claim, the Barngarla claim and the Kuyani claim. Where I refer to the current Kokatha claim group, I refer to them discretely as the Kokatha claimants from circumstances where a differently defined group of Kokatha people have brought a claim under the Act, and I refer to the current Adnyamathanha claimants in that way to distinguish them from the particular Adnyamathanha people on whose behalf earlier Adnyamathanha claims had been made.

THE CONTENTIONS

17    SANTS contended that both the Cane Report and the Habner Report are the property of SANTS, and that only SANTS has the authority to permit the inspection of those two reports. It then contends that both of the documents are excluded from being “adduced as evidence” by reason of s 131 of the Evidence Act 1995 (Cth) as they are documents produced for the furtherance of settlement negotiations, relying upon Apotex Pty Ltd v Les Laboratories Servier (No 5) (2011) 199 FCR 62 (Apotex). It says further that both reports were produced for the purpose of settlement negotiations, and are therefore privileged and are “immune from discovery”: Yokagawa Australia Pty Ltd v Alstom Power Ltd (2009) 262 ALR 738 (Yokagawa).

18    In addition, SANTS contends that the Cane Report is “immune from discovery” as it is legally privileged material created for the dominant purpose of providing legal advice: Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (Esso). It asserts that it had been engaged as the legal representative of all three competing applicant parties (the Kokatha people, the Barngarla people and the Kuyani people) as at the time it commissioned the Cane Report. It also says that it commissioned the Cane Report while performing its function of dispute resolution as the relevant native title representative body for South Australia under s 203BF of the Act.

19    As to the Habner Report, it says that it commissioned that Report while performing its facilitation and assistance functions under s 203BB of the Act, for the purposes of assisting the settlement negotiations between the then competing applicant claim groups, and so it is protected from “discovery and/or inspection” by the common law under the umbrella of “without prejudice” privilege. It also says that s 131 of the Evidence Act 1995 (Cth) excludes it from being admissible evidence. Its submission is said to be supported by the observations of Young J in Lukies v Ripley (No 2) (1994) 35 NSWLR 283 at 287, and by Rabin v Mendoza & Co [1954] 1 All ER 247 (Rabin).

20    Initially, also, it was said that both the Cane Report and the Habner Report were produced for the specific purpose of aiding the court ordered mediation of then overlap proceedings concerning the Kokatha/Barngarla overlap claims and the Kokatha/Barngarla/Kuyani overlap claims, being conducted by the NNTT. Thus, when the Cane Report was made available to the State, and to the other parties involved in the negotiations, it was handed over in circumstances where it was to be treated as confidential material and on a “without prejudice basis”, so that it could not be used for any other purpose than the negotiations which were then taking place.

21    The same submission is made with respect to the Habner Report. It is marked as a confidential document on its front cover and (it is there asserted) only to be made available to the persons directly involved with the NNTT mediation. SANTS, as the solicitor, says that it cannot waive that privilege attached to the Habner Report as it lies with the clients, that is “all the clients who provided information for these documents”.

CONSIDERATION

22    Certain matters are clear. On 1 July 2008, SANTS was recognised by the Commonwealth as a native title service provider, and given the functions of a native title representative body in respect of South Australia, pursuant to s 203FE of the Act. One of its functions is to support dispute resolution between competing claimants in relation to claims under the Act. In practical terms, it is the successor in title to the Aboriginal Legal Rights Movement Inc (ALRM).

23    Division 3 of Part II of the Act deals with the functions and responsibilities of native title representative bodies, relevantly of course the ALRM and then SANTS.

24    They have facilitation and assistance functions under s 203BB, to support native title applications, including under s 203BC consulting with those who may hold native title over land and waters within their respective areas of responsibility. They also have dispute resolution functions under s 203BF to assist in promoting agreement between indigenous people in their respective areas about the making of native title claims, including by mediation. Those functions were clearly undertaken by the ALRM and later SANTS in the processes referred to above, including by engaging senior counsel to advise and by engaging Dr Cane to provide the Cane Report: s 203BK.

25    There are no provisions which dictate the status of information assembled, or used, by the ALRM or SANTS in the processes which it undertook.

26    That is a matter which is to be determined in the particular circumstances, and on the particular facts.

27    In about October 2005, Mr Linde, then acting as an employee of the ALRM, as part of the ALRM dispute resolution function, was involved in mediation conducted by the NNTT aimed at resolving overlaps between the Kokatha people and the Barngarla people as native title claim groups over an area which included Lake Torrens.

28    At that time, s 86B of the Act required the Court to refer all claims to mediation by the NNTT unless it otherwise ordered. Section 94 (now broadly reflected in s 94D and ss 94K-94M) required that mediations be conducted in private and that documents produced to or for the purposes of a mediation should not be disclosed unless the parties agree. The NNTT was required to, and did, provide reports to the Court as to the outcome of its mediation. Mr Linde’s affidavit shows, consistently with the relevant NNTT mediation report to the Court, that an agreed outcome of the mediation, and therefore clearly not itself a confidential communication in the mediation, was that he would (as he did) brief Dr Habner and others (the authors of the Habner Report) to write a report on the area of the Kokatha/Barngarla overlap to endeavour to progress resolution of the overlaps between those two native title claim groups. The target recipients of the anticipated report were the two native title claim groups competing for that area and their legal advisers. He explained that to the authors of the Habner Report, and that further use of that report would then be at the discretion of either the Kokatha people or the Barngarla people as native title claim groups.

29    The Habner Report was presented to the Kokatha native title claim group management committee and its legal advisers, and is marked on its front page: “Confidential Report to the Kokatha Native Title Claim Group” and with the following endorsement:

This report has been produced by the ALRM Native Title Unit as part of the National Native Title Tribunal overlap mediation between the Kokatha and the Barngrala native title claims in an effort to identify claimants with connection(s) to the overlap area.

It also includes a footnote that “This material is CONFIDENTIAL and should be treated as integral to the NNTT mediation process”. A separate document was apparently prepared for provision to the Barngarla people. It is not a document in issue.

30    At the time, Div 4A of Pt 6 of the Act (repealed in 2009 by the Native Title Amendment Act 2009 (Cth) addressed mediation by the NNTT. The content of the mediation conferences conducted by the NNTT may not be disclosed, except by the agreement of the parties: s 136A(4), and the presiding member could direct that any information given, or statements made, at a mediation conference or the documents produced at a conference must not be disclosed, or must only be disclosed to a confined category of persons: s 136F. Section 136E directs that a mediation conference be held in private unless the presiding member directs otherwise. The entitlement of the Court to a report on the progress or results of a mediation, referred to above, is reciprocated by the obligation of the presiding member of the NNTT to provide such a report: s 136G.

31    Those provisions are referred to only to indicate that:

(a)    there is no evidence of any relevant direction given by the presiding member of any mediation being conducted by the NNTT restricting the publication of the Habner Report or of the Cane Report;

(b)    access to the Habner Report or the Cane Report would not contravene s 136A(4) or s 136E, as there is no attempt to disclose what (if anything) was said by the parties at any mediation about those documents;

(c)    the Habner Report and the Cane Report, even if prepared only for the purposes of an NNTT mediation, did not thereby fall within any provision restricting their use in the hands of the person or entity which procured them, as it is only the reference to them in the course of the mediation conference which is proscribed.

32    It is appropriate to record that, despite some assertion in the written submissions suggesting that the NNTT mediation process was the basis for the claim that the two reports should now not be available for inspection, that assertion was not strongly pressed in oral submissions.

33    In addition, the material indicates that both the Habner Report and the Cane Report were prepared in part, and were used for, purposes external to their use in any NNTT mediation.

34    The Habner Report was to be, and was, used to give effect to an outcome of an NNTT mediation, namely to follow a process which was the outcome of the mediation with a view to seeing whether the Barngarla people and the Kokatha people could agree upon withdrawing their then claims and presenting a joint claim. That did not occur.

35    Similarly, the Cane Report (if it was related to an NNTT mediation at all) was to be, and was, used to give effect to an outcome of a later NNTT mediation, namely to follow a process which was the outcome of the mediation with a view to seeing whether the Barngarla People, the Kokatha people, and the Kuyani people could, having agreed to withdraw their then competing claims, agree upon presenting a joint claim. That also did not occur.

36    The brief to the authors of the Habner Report, who are identified at the time as being in-house SANTS research staff, was that it was for the purposes of eliciting information and reporting on connections to the country within the overlap area of the two claim groups, and establishing which Barngarla families and/or Kokatha families have, or may not have, an interest in that overlap area and the extent of any such interests. They were required to collect and collate relevant information and materials for consideration and analysis. The material assembled was to be part of the agreed outcome of the NNTT mediation meeting of 15 March 2005, and would be used to assist the ALRM with the resolution of the overlapping claims. The brief required separate reports for each of the claim groups so that the Barngarla people’s information would be restricted to the Barngarla people, and the Kokatha people’s information to the Kokatha people. It adds:

A copy of the relevant report will be distributed to a senior member of each claim group, the solicitors for each claim and the relevant NNTT Member. Each claim group will control the use and distribution of their own reports.

37    The evidence indicates that the Habner Report concerns the Kokatha people.

38    In relation to the Cane Report, senior counsel was engaged by ALRM by letter of 1 August 2007 to advise and give directions on whether a joint claim by the Kokatha people, Barngarla people and Kuyani people (including apparently some now within the Adnyamathanha claimants) or any of them might be brought, and as to the best way to do that, and to advise and direct claimant groups and their advisers in relation to those matters. I accept that, at senior counsel’s request, Dr Cane was retained to give an anthropological expert report which became the Cane Report.

39    There is a more detailed history which needs to be recorded regarding the use to which the Cane Report has been put. During 2007, the NNTT was mediating or endeavouring to mediate resolution of the Kokatha people native title claim (then SAD 6013 of 1998). The process is described in a report from the NNTT of 11 July 2007. It concluded with a joint anthropological workplan to be prepared, to support the adjournment of the then proposed court hearing of that claim, with a schedule fixed by the NNTT running up to mid-2008. In December 2007, the NNTT convened a community meeting of the Kokatha people to reconsider the advice of senior counsel about the filing of a possible new joint claim in relation to the overlap area. The outcome of that meeting is reported in detail in the NNTT’s report to the Court of 12 December 2007. It was clearly not a “private” meeting in relation to its outcome.

40    The agreed process is part of the outcome of the mediation. It included a meeting arranged by the ARLM at which the Kuyani people agreed to submit to a dispute resolution process conducted by the ARLM, and to then withdraw their current native title application over the disputed area. Those resolutions are reported in a document which is in evidence, and is not confidential. At a further meeting on 28 October 2007, the Barngarla people also agreed to participate in the dispute resolution process being conducted by ALRM, and to withdraw their claim over the disputed area. That too is documented. So too is a resolution by the Kokatha people at about the same time and for the same purpose and in the same terms.

41    The NNTT in its report of 20 June 2008 to the Court noted that those three claim groups had agreed to adopt that process under the aegis of the ALRM itself. It was conducted outside the mediation. That report also noted that Dr Cane’s draft report had been provided to the State and to the Commonwealth, and responses to it were duly presented and considered. Apparently running in tandem with the agreed ALRM process, the NNTT also met with representatives of the Kokatha, Kuyani and Barngarla people, with the ARLM representatives and with Commonwealth and State representatives, to discuss the draft Cane Report and the responses to it, to see whether final agreement could be reached about a process to address the matters of concern. Dr Cane was to prepare a further report to take account of issues raised by the State and the Commonwealth. That report notes that the ARLM then informed the NNTT that it proposed to conduct independent negotiations by procuring a further report from Dr Cane “for consideration of the State and the Commonwealth” by 30 April 2008.

42    Further correspondence indicates that the Australian Government Solicitor (AGS) on behalf of the Commonwealth, following a meeting on 20 February 2008 with the ALRM and the State, agreed that Dr Cane should contact directly Emeritus Professor Sansom in relation to Dr Cane’s proposed final report, and that South Australia had also agreed for Dr Cane and Dr Sackett to discuss directly Dr Cane’s proposed final report. Correspondence from the State of 28 March 2008 confirmed that the State and ALRM regard the direct communication process as “without prejudice” and so as not to compromise any future litigation. The Commonwealth by letter of 24 April 2008 confirmed that the private communications between Dr Cane, Professor Sansom and Dr Sackett, prior to Dr Cane providing his final report to the Commonwealth and the State, should be confidential and without prejudice to the positions of the parties in relation to the then extant and any future native title claim proceedings. That was agreed. That consultation process was therefore a confidential and “without prejudice” one.

43    Subsequently, Dr Cane prepared a draft report provided to the State (and presumably the Commonwealth) on 5 May 2008. It was provided to the State “on a confidential and without prejudice basis” for the purposes of furthering negotiations between the parties towards a consent determination in the proceeding. Dr Cane provided his final report – the Cane Report – to the State and the Commonwealth on 8 July 2008. It was said to be provided “on a confidential and without prejudice basis”. It was also provided to solicitors for the Adnyamathanha claimants (in part as they, or some of them, were included in the Kuyani people).

44    The contentions on behalf of SANTS start with the proposition that the Cane Report is one brought into existence, as part of its dispute resolution function, and was therefore confidential to the conditions on which it was provided to each of the overlapping claim groups referred to, and was a document in which SANTS held client legal privilege (advice privilege) as it was part of the material it procured through and associated with its engagement of senior counsel.

45    In my view, the evidence shows that the process referred to involved draft reports being provided by various experts from time to time on the basis that they were confidential and without prejudice to each party’s claim, in the sense that whatever the terms of those draft reports, the party providing the draft should not be bound by that communication to the point of view there expressed. The final reports, and in particular the Cane Report in its final form, were to be different in that they would be relied upon by the State, and possibly might be the subject of evidence at any subsequent trial. From about the time the ALRM stepped in, in about mid-2007, it is clear that at least from the State’s point of view, its communications were conducted in accordance with the State’s “Consent Determinations in South Australia: A Guide to Preparing Native Title Reports” (the State’s CD Policy), developed in consultation with the ALRM some year’s previously. That policy acknowledges that evidentiary material provided by a native title claim group should remain the property of that group at all times, so that subject to a Court order it would not be made available to other parties or the public generally without the permission of that claim group. It also acknowledges that a report prepared for the purposes of settling a native title claim would be legally privileged (whatever that means).

46    Whilst the communications between the State, the ALRM/SANTS and the Commonwealth, and other interested parties in an endeavour to explore the prospect of a consent determination may well be privileged, I do not regard the Cane Report or the Habner Report themselves as subject of some sort of separate confidentiality entitlement because of the role that the ALRM/SANTS took in their preparation. That is because, whatever the circumstances in which they came to be created, they were provided to the opposing parties to the litigation. That is, they were provided to the State, to the Commonwealth, and apparently to the Kuyani people. Whatever terms may have been imposed upon the usage of that material, it is not now claimed that there is some condition restricting the State and/or the Commonwealth, and/or any of the other persons who received that material, from using it for the purposes of this proceeding.

47    As to client legal privilege, accepting (without deciding) that the Cane Report was received by the ALRM/SANTS for the dominant purpose of obtaining legal advice from senior counsel and as a requirement of senior counsel to better give that advice, in my view that privilege was clearly waived. It was waived by making the Cane Report available to each of the overlapping claim groups and their representatives. It is not necessary to address the significance of that, because more importantly, it was waived by making it available to the State and to the Commonwealth, for the purpose of exploring whether the State and the Commonwealth would agree to the formulation of a joint claim (on behalf of a redefined claim group) over the then overlapping claim areas, and if so upon what terms. The State and the Commonwealth were each, in a real sense, the potential contradictors to any such claim. They are not parties within the contemplation of the dispute resolution function in s 203BF of the Act as they are clearly not “constituents” as there defined. I will return to address the other bases for SANTS’ claim over the Cane Report later in these reasons.

48    It is not clear on the evidence how the Habner Report came to be in the possession of the State. It was listed by the State, and was not on the list provided by SANTS. I note that the present Kokatha claim, including over Lake Torrens, was made following a meeting of Dr Habner and Mr K McCaul (an anthropologist engaged by the State) with Dr Cane on 13 June 2008, leading to the Cane Report. The title page of the Habner Report, referred to above, does not have the effect of defining its status where the evidence does not support that.

49    I do not consider it is shown to be a document which is protected from inspection, unless there are some particular circumstances beyond or outside the NNTT mediation which require that.

50    In my view, there are no circumstances shown as to why the Habner Report, being in the possession of the State, should not now be both discoverable (as it has been) and inspected by the other parties to the Lake Torrens Overlap Proceeding. There are existing orders, referred to above, which may ensure that its inspection is confined to appropriate persons for reasons confined to its use in these proceedings.

51    Moreover, it was (on SANTS’ submission) a document in which the “privilege” rests with the Barngarla people and Kokatha people, who received it (or their version of it) to assist in the resolution of their competing claims to the overlap area. There is no evidence as to how either of those groups dealt with that Report or their version of it. There is nothing put by, or on behalf of, the Barngarla people to support SANTS’ claim that it should not be inspected. Although the present Kokatha claimants support SANTS’ position, they have not adduced any evidence to indicate how they dealt with it. Whether either of those groups was the path by which the State came to receive it, and if so on what terms, is speculative.

52    It is necessary to address in more detail the claim that the Habner Report is protected from inspection by “without prejudice” privilege, as urged by SANTS, even though SANTS does not claim that that privilege lies with it.

53    It is clear that s 131(1) of the Evidence Act 1995 (Cth) prohibits the admission into evidence of communications which form part of “without prejudice” negotiations in an attempt to settle a dispute. It does not govern pre-trial processes: Esso and the consideration of s 131(1) in Apotex at [21]-[27]. At this point, the issue of the admissibility into evidence of the Habner Report is not in question.

54    Generally speaking (as here, except in relation to Kelaray and Straits and possibly the Adnyamathanha claimants) the “without prejudice” communications are between two or more parties – that is all the parties have had access to them and the issue is whether one party may make use of them in evidence. In this instance, it is not even suggested by SANTS that, despite the labelling of the Habner Report, the Kokatha claimants (or the State) could not adduce the report into evidence if so advised. Nor is it suggested that either the Kokatha claimants or the State should be constrained from knowing what is in the report, and to the extent necessary or appropriate using that knowledge for the purposes of their respective preparation for the hearing, including by discussing its content with any other experts.

55    In respect of pre-trial processes, Seven Network Ltd v News Ltd (2005) 144 FCR 379, provides an illustration of circumstances where a document produced under subpoena by a third party, which was asserted to be subject to client legal privilege under O 33 r 11 of the then Federal Court Rules 1979 (Cth) (but was not the subject of client legal privilege under the common law), was ordered to be available for inspection.

56    I do not consider that Yokogawa, a decision relied upon by SANTS, really advances its contentions concerning client legal privilege or “without prejudice” privilege. Yokogawa Australia Pty Ltd (Yokagawa), a subcontractor to Alstom, was sued by Alstom for damages for delay in performing its contract where Alstom had been liable for, and had settled, the client’s claim for damages for the same delay by Alstom in relation to the principal contract. The issue was whether Yokogawa was entitled to the internal documents of Alstom, including client legally privileged documents, on the basis of which it negotiated its settlement of the delay claim with the client. Yokogawa asserted the privilege had been waived by the form of Alstom’s pleading against it. Because the issue of the reasonableness or otherwise of the settlement by Alstom with its client was to be assessed objectively, by claiming that what it paid to the client was reasonable, Alstom had not waived its client legal privilege: see at [36]-[59] per Duggan J, with whom Sulan and Kourakis JJ agreed.

57    It is more relevant to the “without prejudice” privilege basis of the claim of SANTS.

58    The foundation for that privilege is the public policy that parties should be encouraged, as far as possible, to settle their disputes without resort to litigation, and should not be discouraged by the concern that anything said in the course of negotiations may be used to their detriment in the course of proceedings: Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291-292; Cutts v Head [1984] Ch 290 per Oliver LJ at 306; and Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 per Gleeson CJ at 522. So, it is in the public interest that statements or offers made in the course of negotiations for settlement should not be allowed in evidence as admissions on the issue to which the negotiations were directed. That protection extends to disclosure to third parties to the proceeding: Rush and Tompkins Ltd v Greater London Council [1989] AC 1280; and as Duggan J concluded in Yokogawa at [83], it extends to cases where the litigation has a connection with the same subject matter as the negotiations.

59    The critical feature of both the Habner Report and the Cane Report, in my view, is that they are not shown to have come into existence, nor to have been provided under any express or tacit arrangement that – at the conclusion of negotiations – they should not be available for use to the benefit (or detriment) of one or other parties if the matter were not resolved by negotiation. It is not suggested by SANTS that, on the hearing of the Lake Torrens Overlap Proceeding, the Kokatha claimants could not call to give evidence either Dr Habner or Dr Cane, or that either of them could not give evidence of their views (including by the adoption of their reports). Nor is it suggested that the State, or the Adnyamathanha claimants could not call either of them to give evidence.

60    Consequently, I am not satisfied that the Habner Report is protected from inspection by “without prejudice” privilege.

61    The evidence about the character of the discussions between Dr Cane, Professor Sansom and Dr Sackett preceding the Cane Report might well sustain the claim that those communications were conducted on a “without prejudice” basis. There is good reason to support such a view, as those discussions in a frank environment might have enabled the sharing of views leading to an agreed outcome (subject to the acceptance of what was or might have been agreed between them by those whose interests they were engaged to advise). That, too, is not the issue. The issue is as to the status of the Cane Report itself, and in particular the copy of the Cane Report which is held by the State (and the Commonwealth).

62    The Cane Report itself was sent to the State on 8 July 2008 “on a confidential and without prejudice basis”. It was provided to determine whether, as revised following those “without prejudice” discussions, the State and the Commonwealth would support a proposed new and refined claim over the then overlapping claim areas.

63    The Cane Report was also provided to the lawyers for the then putative claimants identifying as the Kuyani people. Some of those people are now part of the present Adnyamathanha claimants in the Lake Torrens Overlap Proceeding. They have access to its terms, and do not feel constrained in the use to which they may put it for the purposes of this proceeding.

64    The resolutions of the Kokatha people, the Barngarla people and the Kuyani people referred to above contain no requirement of, or acknowledgment of, confidentiality in the Cane Report. They were separately represented from SANTS.

65    One explicit purpose of the provision of expert anthropological opinion to the State is to meet the requirements of the State’s CD Policy: Such material, although it might be described as provided “without prejudice” cannot be protected from inspection in the current circumstances. Its inspection might have (as it did, and as Orders 9 and 10 of 10 December 2014 are intended to protect) confidentiality conditions attached to its provision. But it cannot have been provided on the condition that it could not be subsequently used and relied upon by the State, as that was its purpose. If the matter proceeded to a consent determination (as the area of the Kokatha claim to the west of Lake Torrens has done), by the decision in Starkey, that material would be part of the evidentiary material relied on by the State to adopt that position. That analysis reflects the approach taken by Denning LJ in Rabin at 247, 248, and by Bleby J in Falland v Symbion Health Pty Ltd [2010] SASC 119 at [13]-[22].

66    The position of the State, understandably, is to comply with its CD policy. The State does not say that its CD Policy precludes the use of the material provided to it for the purposes of this proceeding. It has used it to date to support the Kokatha claimants’ consent determination by the Starkey decision.

67    Accordingly, I do not accept that the copies of the Cane Report and of the Habner Report as now “discovered” by being included on the lists as referred to above were provided by SANTS in circumstances where their use was specifically limited by a “without prejudice” label used by SANTS so as to entitle SANTS to the order which it seeks.

68    The further submission of SANTS is that the orders it seeks are necessary in the public interest to preserve the confidentiality in the two reports, having regard to their character and (at least) their original purpose in possibly facilitating an agreed resolution of overlapping claims, so as not to:

(a)    diminish the confidence of the parties or the public in the confidential mediation processes of the NNTT;

(b)    diminish the confidence of native title claimants generally in the State’s CD Policy, under which the State agrees to treat evidentiary material provided by a claim group as the property of that claim group; and

(c)    seriously diminish the confidence in, and possible level of co-operation between, claim groups and SANTS in its endeavours to facilitate dispute resolution, as SANTS might be seen as unable to “deliver” on its promise that confidentiality in the dispute resolution process will be preserved.

69    I have already rejected the matter in (a) above. In my view, it does not apply in the circumstances.

70    As to (b) and (c), the public interest in this matter must be assessed having regard to:

(i)    all parties other than Kelaray and Straits already having access to the two reports, and it does not accord with the interests of justice that one only of the active parties in this proceeding should be precluded from being aware of the views of particular independent expert anthropologists when all of the other parties have access to their views;

(ii)    all parties, including the Kokatha claimants not being proscribed from “knowing”, and therefore using, the contents of the two reports in their preparation for the hearing, and at least the Adnyamathanha claimants have indicated circumstances where they may specifically do so;

(iii)    giving effect to the real position that, having access to the two reports, all parties but Kelaray and Straits cannot realistically put out of their minds the contents of the two reports;

(iv)    both Dr Habner and Dr Cane could be required to give evidence on the views contained in their reports (although, I am told, it is not the present intention of any party who has access to those reports to call them);

(v)    the existing orders of the Court ensure that the contents of the two reports are used only for the purposes of this proceeding, and if there are appropriate cultural reasons to further restrict the extent of access to their contents, orders can be made to give effect to those cultural reasons;

(vi)    the absence of any application by SANTS for orders that the parties to this proceeding, or any of them (of course other than Kelaray and Straits) be restrained from making such use of the contents of the two reports as they may be advised;

(vii)    the contents of the two reports are not said to disclose the positions taken by any one or other of the parties to this proceeding in the course of any “without prejudice” negotiations in a way which might otherwise inhibit or might have inhibited any discussions leading to the two reports, and it is to be assumed that the two reports represent the considered independent expert anthropological views of the authors of those two reports upon the basis of factual material assembled by, or available to, them; and

(viii)    neither the Kokatha applicant on behalf of the Kokatha claimants nor the Adnyamathanha applicant on behalf of the Adnyamathanha claimants have objected to the inspection of the Habner Report or the Cane Report.

71    In my view, those matters point strongly in favour of the Court directing (subject to the conditions referred to) that the Habner Report and the Cane Report, and consequently the other reports which allude to the contents of the Cane Report, should be available for inspection.

72    Accordingly, in my view, no basis was made out for the orders sought by SANTS.

Associate:

Dated:    26 May 2015