FEDERAL COURT OF AUSTRALIA

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551

File numbers:

WAD 490 of 2016

WAD 537 of 2018

WAD 538 of 2018

Judge:

MORTIMER J

Date of judgment:

23 September 2019

Catchwords:

PRACTICE AND PROCEDURE – objections to production of documents under subpoena – objections made on basis of legal professional privilege and without prejudice privilege – whether claims of privilege can be made and maintained in documents – identity of holders of privilege

NATIVE TITLE – objections to production of pre-existing anthropological reports – where subpoenaed party is relevant representative body – where representative body is “custodian” of subpoenaed documents – consideration of identity of “client” or “party” who holds privilege in pre-existing anthropological reports

Legislation:

Evidence Act 1995 (Cth) s 117

Native Title Act 1993 (Cth) ss 56, 57, 61, 62A, 66B, 84, 86B, 86F, 87, 87A, Pt 11 Div 3, 203AD, 251A, 251B

Cases cited:

Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547

Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 164 ALD 214

AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30

Bailey v Beagle Management Pty Ltd [2001] FCA 185

BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234

Brennan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 688; 28 ALD 178

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; 93 NSWLR 155

Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322

DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499

Dunesky v Elder [1992] FCA 311; 35 FCR 429

Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191; 209 FCR 1

Equuscorp Pty Ltd v Kamisha Corp Ltd [1999] FCA 681; ATPR 41–697

Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49

Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; 39 NSWLR 601

Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96

Field v Commissioner for Railways for New South Wales [1957] HCA 92; 99 CLR 285

Grant v Downs [1976] HCA 63; 135 CLR 674

Hancock v Rinehart (Privilege) [2016] NSWSC 12

Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company [1992] FCA 322; 36 FCR 557

Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554

Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801

Lake Torrens Overlap Proceedings [2015] FCA 519

Lennon v South Australia [2010] FCA 743; 217 FCR 438

Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117

Mann v Carnell [1999] HCA 66; 201 CLR 1

McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restraurants & Bars Pty Ltd [1999] QCA 276; [2001] 1 Qd R 276

Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; 4 VR 332

Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275

North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595

Northern Territory v GPAO [1999] HCA 8; 196 CLR 553

Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817

Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204

Pihiga Pty Ltd v Roche [2011] FCA 240; 278 ALR 209

Prus Grzybowski v Everingham [1986] NTSC 57; 44 NTR 7

QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376

Re Dallhold Investments Pty Ltd [1994] FCA 738; 53 FCR 339

Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671

Von Stieglitz v Comcare [2014] FCAFC 97; 64 AAR 356

Date of hearing:

29 August 2019

Date of last submissions:

9 September 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

253

Counsel for the First Applicant:

Ms T Jowett

Solicitor for the First Applicant:

Cross Country Native Title Services

Counsel for the Second and Third Applicants:

Mr S Wright SC

Solicitor for the Second and Third Applicants:

Yamatji Marlpa Aboriginal Corporation

Counsel for the First Respondent:

Mr G Ranson

Solicitor for the First Respondent:

State Solicitor’s Office

Solicitor for Yamatji Marlpa Aboriginal Corporation:

Mr M McKenna of Gilbert + Tobin

ORDERS

WAD 490 of 2016

WAD 537 of 2018

WAD 538 of 2018

BETWEEN:

ROY TOMMY & ORS (YINHAWANGKA GOBAWARRAH)

First Applicant

IVAN SMIRKE & ORS (JURRURU #1)

Second Applicant

IVAN SMIRKE & ORS (JURRURU #2)

Third Applicant

AND:

STATE OF WESTERN AUSTRALIA & ORS

Respondents

JUDGE:

MORTIMER J

DATE OF ORDER:

23 september 2019

THE COURT ORDERS THAT:

1.    The objections by the Yamatji Marlpa Aboriginal Corporation to the production, and the inspection, of the documents set out in order 2 of these orders are overruled.

2.    Pursuant to rr 24.19 and 24.20(3) of the Federal Court Rules 2011 (Cth), the second and third applicants are granted leave forthwith to inspect and copy the following documents:

(a)    Report prepared by Dr Lee Sackett entitled “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010; and

(b)    Report prepared by Dr Lee Sackett entitled “Yinhawangka Connection Report, Confidential Report to YMAC, Perth” dated 2010.

3.    Subject to any application by a party on or before 4 pm on 25 September 2019 to be heard on the question of costs, there be no order as to the costs of the interlocutory hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    These are the Court’s reasons for overruling objections made by the Yamatji Marlpa Aboriginal Corporation (YMAC) to production of documents under two subpoenas in relation to three proceedings which are part heard before the Court, on a separate question. The history of the three proceedings, and how the separate question came about, can be found in my reasons in Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2018] FCA 1671 at [5]-[12]. The subpoenas were issued by the Jurruru applicant in two of the three proceedings.

2    In summary terms, the separate question concerns an area of land and waters located between an area determined in favour of the Jurruru People, and an area determined in favour of the Yinhawangka People. There is no debate that the members of the claim group represented by the Yinhawangka Gobawarrah applicant are part, or a “sub-group”, of the Yinhawangka native title holding group. The land and waters in question are located in the Pilbara, south-west of the town of Paraburdoo in an area overlapping with Ashburton Downs Station in the north and south, and Mininer Station in the south-east, and including a large tract of the Ashburton River. I shall call this area “the overlap area” in these reasons.

3    YMAC is the representative body recognised by the responsible Minister, under s 203AD of the Native Title Act 1993 (Cth) (Native Title Act), for the Pilbara, Murchison and Gascoyne regions of Western Australia. It is the relevant representative body for the claims by the Jurruru People, and the Yinhawangka Gobawarrah People.

The separate question hearing process and the expert evidence

4    The process of hearing of the separate question has been somewhat fraught, largely due to the inability of the Yinhawangka Gobawarrah applicant to secure funding for legal representation, a matter I described in my 2018 reasons. Amongst other difficulties that situation has caused, it has meant that the Yinhawangka Gobawarrah applicant’s anthropological expert, Dr Daniel Vachon, was not funded to complete his report and accordingly he did not complete it. That in turn has meant there is a debate, not yet resolved, about whether his partially completed report can be admitted into evidence. It has also meant the Court will not have the benefit of him giving expert evidence. The expert evidence tranche of the separate question has not yet been heard.

5    I emphasise I do not criticise the Yinhawangka Gobawarrah applicant, or its legal representatives, Cross Country Native Title Services, for this situation. It is not of their making. Eventually, and very close to the first tranche of hearings, some limited funding was secured by Cross Country Native Title Services from the National Indigenous Australians Agency, and the Yinhawangka Gobawarrah applicant has continued to be legally represented. The Court has derived much assistance from the Yinhawangka Gobawarrah applicant’s legal representatives, and expresses its gratitude to them for their continuing commitment to the Yinhawangka Gobawarrah applicant and to this proceeding, under challenging circumstances.

6    The circumstances of the Yinhawangka Gobawarrah applicant meant that the Court gave some consideration, prior to the on country hearing of lay evidence in July 2019, whether to appoint a court expert, so that there was a second expert opinion to complement the opinion of Dr Pamela McGrath, the anthropological expert to be called on behalf of the Jurruru applicant. This consideration occupied a lot of the Court’s time and resources, and the parties’ positions shifted somewhat from time to time about whether this proposal was agreeable to them or not, on what terms it might be agreeable, who the anthropologist might be, how the future conduct of the proceeding should occur and the like. In the end, the continued qualifications and conditions the parties sought to impose on the process led the Court to abandon its attempts, although the Court did make it clear it might revisit that issue at some later stage. That is now less likely to occur because the Yinhawangka Gobawarrah applicant has secured sufficient resources to retain Dr Kingsley Palmer, and Dr Palmer will be called to give expert evidence. Dr Palmer has completed anthropological reports about the overlap area, which are described later in these reasons.

7    As preparation for the hearing of the separate question proceeded, it became apparent there were pre-existing anthropological reports relevant, or potentially relevant, to the question of which people hold native title in the overlap area. The evidence on this interlocutory application discloses that the Jurruru applicant and the Yinhawangka Gobawarrah applicant, with the assistance of the State and the apparent concurrence of YMAC, reached agreement about the production and use of several of those pre-existing anthropological reports. Those factual circumstances are not unimportant to the issues to be determined on this interlocutory application. However, not all of the pre-existing anthropological reports were made available to both parties, and it was this circumstance that led to the Jurruru applicant seeking to obtain the reports by way of subpoena.

The subpoenas

8    The Jurruru applicant was granted leave to issue two subpoenas to YMAC. Each is dated 23 May 2019.

9    One subpoena seeks production of the following document:

Draft report prepared by Dr Anna Kenny entitled Confidential and without prejudice draft expert report on Jurruru Overlap Area and Triangle Area, 27 May 2011”.

10    The other subpoena seeks production of the following two documents:

Report prepared by Dr Lee Sackett entitled “Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area, Confidential Report to YMAC, Perth” dated 2010; and

Report prepared by Dr Lee Sackett entitled “Yinhawangka Connection Report, Confidential Report to YMAC, Perth” dated 2010.

11    As will become apparent later in these reasons, I accept the submission of senior counsel for the Jurruru applicant that the focus of the determination of YMAC’s objections to production must remain steadily on the particular documents sought under the subpoena, and whether the claims of privilege can be made and maintained in respect of those particular documents. That is not to ignore the broader context in which they, and other anthropological reports, might have been produced, and whether there were draft, or different versions at one time or another. However YMAC’s objections, and the claims of privilege which ground them, must be assessed by reference to the particular documents sought.

12    In written submissions, the Jurruru applicant submitted the Court could inspect the documents if it needed to, relying on Hancock v Rinehart (Privilege) [2016] NSWSC 12 at [31] and Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 at [52]. I accept the general position is that if it considers it appropriate to do so, a Court may inspect documents over which a claim of privilege is made in resisting a subpoena. I note however that in Hancock, Brereton J ultimately expressed a different view. His Honour’s reasoning is not unimportant in the present context where, as these reasons will explain, I consider the evidence adduced by YMAC is insufficient in many respects. At [34] of Hancock, Brereton J said:

Better informed now by the above analysis, in my view, such an approach is not merely unsatisfactory, but impermissible in principle. Whether the creature of judicial decision or, as I think more properly, rules of court, the court’s power to inspect documents – and to require their production for that limited purpose – was a response to the potential injustice in treating the claimant’s oath as conclusive. The power was not intended to detract from the requirement that a person claiming privilege prove, by admissible evidence, the grounds of the claim. While it is clear that the court may now require a document the subject of a claim of privilege to be produced so that it may inspect it for the purpose of ruling on the claim, that is quite a different notion from permitting a person claiming privilege to sustain the claim by adducing no testimonial evidence but asking the court to inspect the documents. The privilege being a privilege against production, it permits the person entitled to the privilege to refuse to produce the document to the court. To voluntarily proffer the documents for inspection – as opposed to doing so pursuant to a requirement made by the court under UCPR r 1.9(5)(c) – is inconsistent with maintaining the claim.

13    With respect, I see the force in the approach taken by Brereton J. It is not necessary for me to decide conclusively if I would decline to inspect the documents for that reason, as there is another reason why I have decided not to do so. I am currently presiding over the determination of a separate question to which the expert evidence in these reports is contended to be relevant. There is other expert evidence to be adduced on the separate question, from other anthropologists. As a result of orders made on 29 August 2019, there will be further expert evidence adduced by the Yinhawangka Gobawarrah applicant, from Dr Palmer. I have not yet heard the expert evidence of Dr McGrath for the Jurruru applicant. In those circumstances, and to avoid any apprehension that I may not be able to put out of my mind what I have read in these reports if they do not make their way into evidence, I do not consider it is appropriate for me to know what Dr Sackett’s opinions are, or the bases for those opinions. By inspecting documents subject to an objection, there is always the possibility that a party, or the public, “might entertain a reasonable apprehension that the judge might not bring an unprejudiced mind to the hearing of the case”, even though the parties agreed to the Court inspecting the documents: see Brennan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 688; 28 ALD 178 at 179 (Heerey J), citing Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288.

Agreement on production of the 2011 Kenny report

14    At the hearing of the interlocutory application, it became clear that YMAC did not maintain its objection to the production under subpoena of Dr Kenny’s 2011 report. This was explained in the following way:

MR McKENNA: As custodian of that report, when we were obliged to present the document to the court, we presented it in a sealed envelope saying privilege attaches to this. It is the privilege of Jurruru, the applicant in Jurruru.

HER HONOUR: Yes.

MR McKENNA: I understand Mr Wright to be authorised to speak on behalf of the applicant. We make no submission in relation to the Kenny 2011 report as to whether it is – whether it - - -

HER HONOUR: Sorry – I missed what you said. So what’s – you understand what?

MR McKENNA: I understand Mr Wright is the representative of the Jurruru applicant.

HER HONOUR: Yes.

MR McKENNA: And so we’re not saying against him that his report is privileged. He has subpoenaed the – a Jurruru report. We don’t quite know why, but we presented it to the court on the basis that it’s subject to privilege because - - -

HER HONOUR: So there’s no objection to the 2011 Kenny report.

MR McKENNA: Going to the owners of it? No. But it’s their report. We’re not – we don’t want the presentation of the report to the court to waive the privilege that they have. If they want to waive it or if it has already been waived, that’s a matter for them. I am not instructed on that matter.

HER HONOUR: All right.

MR McKENNA: They’ve subpoenaed their own report. It’s in their hands as we speak.

HER HONOUR: Well, it’s not, actually.

MR McKENNA: No, it is. That copy - - -

HER HONOUR: It is?

MR McKENNA: - - - is not in their hands. That’s their report.

15    It appeared that this position was not one which had been communicated clearly to the Jurruru applicant, because the statement of issues provided to the Court the day before the hearing still referred to the 2011 Kenny report. Nevertheless, once YMAC’s position was made clear in open court, an order was made orally during the hearing releasing Dr Kenny’s 2011 report to the Jurruru applicant.

16    I note that Mr McKenna directed his oral submissions at the Jurruru applicant as the holder of the asserted privilege in the 2011 Kenny report, rather than the claim group. This is a matter which assumes some importance later in these reasons, and in the parties’ submissions.

17    Nevertheless, there was in the end no debate about production by YMAC of the 2011 Kenny report. What remained were YMAC’s objections (as “custodian”, to use its lawyer’s description) to the production of the two reports by Dr Sackett. In these reasons I refer to the first report set out at [10] above as the “Sackett Overlap Report” and to the second report as the “Sackett Connection Report”. I deal first with the Sackett Connection Report, and then with the Sackett Overlap Report, because my reasoning on the Sackett Connection Report informs and explains in part why I have reached the conclusions I have about the Sackett Overlap Report.

YMAC’s objections to production of the Sackett reports

18    As “custodian”, YMAC objected to production of the reports on the following bases.

19    To the Sackett Connection Report:

(a)    legal professional privilege; and

(b)    without prejudice privilege.

20    To the Sackett Overlap Report:

(a)    legal professional privilege; and

(b)    without prejudice privilege.

The evidence and argument adduced on the interlocutory hearing

21    At the interlocutory hearing, the parties read and relied on the following affidavits:

(a)    for YMAC, the affidavit of Michael John Joshua Meegan sworn 6 June 2019;

(b)    for the Yinhawangka Gobawarrah applicant, the affidavit of Roy Tommy affirmed 16 June 2019 and the affidavit of Ambrose Michael Cummins affirmed 16 June 2019; and

(c)    for the Jurruru applicant, the affidavit of Greg Young affirmed 12 June 2019.

22    As I noted above, shortly before the commencement of the hearing of the interlocutory application, the parties produced a signed statement of issues and their position on each issue. There was some departure from the document during the course of the hearing by YMAC and the Yinhawangka Gobawarrah applicant, but it provides a useful foundation for the determination of YMAC’s claims. Throughout the hearing, and afterwards, the parties and YMAC took somewhat of a dizzying combination of positions on various issues.

23    The fact the parties and YMAC advanced various (and at times shifting) positions on the issues in their oral and written submissions reflects, in my opinion, the potential conflicts of interest at play, and the lack of clarity sometimes evident about the role of a representative body, and its internal lawyers, in the gathering of expert evidence for historical and current native title claims, where those claims may have some connection with one another.

24    A chronology of key events was also prepared by YMAC, which was helpful, although there were one or two entries in it that the Jurruru applicant disputed, and where necessary I make findings about the timing of material events in my reasons below.

25    The parties referred the Court to few authorities in written and oral submissions. Some further authorities were forthcoming in the supplementary written submissions. However, considering the importance of the issues, and the plethora of decisions on both legal professional privilege and without prejudice privilege, it is difficult not to have a sense of unease that there may be relevant decisions to which the Court has not been referred, or which were not identified during what has been a reasonably short period of time in which to prepare a decision.

Resolution

26    The parties’ statement of issues extended to issues and argument about the admissibility of the documents subject to the subpoenas, if YMAC’s objections to production were not upheld. Senior counsel for the Jurruru applicant submitted it would be expedient for the Court to determine issues of admissibility at the same time as the issues concerning privilege. It was common ground that YMAC’s objections on the basis of privilege were to be determined in accordance with common law principles, and not according to the provisions of the Evidence Act 1995 (Cth): see Mann v Carnell [1999] HCA 66; 201 CLR 1 at [27], [41] and [144] and Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [16], [135] and [199]. Nor is there any derivative modification of common law principles because of the terms and content of the Evidence Act: see Esso at [23], [64], [91] and [144]. See also Dowling v Ultraceuticals Pty Ltd [2016] NSWSC 386; 93 NSWLR 155 at [4], Ensham Resources Pty Ltd v AIOI Insurance Co Ltd [2012] FCAFC 191; 209 FCR 1 at [45]-[49] (Lander and Jagot JJ) and Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236 at [17] (Collier J).

27    I informed the parties at the hearing that in my opinion it was premature for the Court to determine issues of admissibility. I explain what I presently see as the consequences of the Court’s decision on YMAC’s objections for any subsequent questions about admissibility at [252]-[253] below.

28    It was also agreed by all parties, and YMAC, that YMAC bore the onus of proving its claims to privilege in resisting production of the documents sought by the subpoena: see Grant v Downs [1976] HCA 63; 135 CLR 674 at 689, Dowling at [20] and Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204 at [71].

29    In Hancock, Brereton J said at [7]:

To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, or in other words “expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable”. The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, and must do so by admissible direct evidence, not hearsay.

(Footnotes omitted.)

30    I respectfully agree with this statement. See also Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [8] (Griffiths J).

31    YMAC’s onus of proof assumes some importance in my reasoning below.

Who holds the asserted privileges

32    In the joint judgment in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; 185 CLR 595 at 614-615 the High Court said the Native Title Act must be “read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title”. This observation was subsequently endorsed by the High Court in Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96 at [24]. The objections by YMAC to production give rise to some of those novel problems.

33    Contrary to the position eventually adopted by YMAC and the Yinhawangka Gobawarrah applicant, the first step in addressing YMAC’s objections is to consider the question of who holds the asserted privilege – whether it be legal professional privilege or without prejudice privilege. In the context of the Native Title Act, that question presents some challenges.

34    Throughout the oral argument, it appeared there was some common ground on the answer to this question. The apparent common ground, which reflects the conclusion I have reached, was that the holder of the privilege would be (relevantly in the present circumstances) the applicant in a native title determination application lodged under s 61; and post-determination, the holder of the privilege would be the prescribed body corporate determined by the Court under ss 56 and 57 to hold the native title on behalf of the common law holders.

35    However, in oral reply submissions shortly after 4 pm at the interlocutory hearing, the lawyer representing YMAC raised squarely for the first time a contention that the privilege is held by the members of the native title claim group, or the native title holding group, as the case may be. It was unclear whether this was being put on the basis that all claimants as individuals held the asserted privilege, or held it in some collective way, and it was unclear how the “will” of any individuals, or any collective “group”, would be ascertained, or from whom instructions would be sought, and in what fashion. On any view, this was a significant divergence from how YMAC’s objections and arguments had been presented to that point. Accordingly, I gave leave for YMAC to file supplementary written submissions setting out its argument, and for the parties to file written submissions in response. I deal with these supplementary submissions at [69] below.

36    In considering who, in the context of a claim under s 61 of the Native Title Act, is the relevant “client” or “party”, some basic propositions should be recalled.

37    The privileges with which this argument was concerned arise in the context of particular relationships and circumstances. The law seeks to protect communications made in the context of those relationships or circumstances, so as to advance policies which are fundamental to the rule of law. Identifying the relationship, the parties to it, and the specific circumstances are all critical to resolving how any privilege is said to arise, whether in fact it does arise, who holds it, and indeed whether it attaches at all to the communications asserted to be protected by it. All these matters are questions of fact, to be determined by evidence, and the primary responsibility for adducing the necessary evidence falls on the person who asserts the privilege as an answer to a coercive process such as a subpoena.

38    In particular, legal professional privilege is a privilege which exists between lawyer and client. It exists to protect the interests of the client: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501 at 570 (Gummow J). It extends in some circumstances to cover communications involving third parties, but where it does so, that is to advance the policy of the law which lies behind legal professional privilege. The policy is, in general terms, to protect the confidential relationship between lawyer and client, so as to encourage and facilitate a free and frank flow of information within that relationship, for the purposes of litigation, or for the giving and receiving of legal advice. Chief Justice Brennan described it in the following terms in Propend Finance (at 508):

The reason why privilege is accorded to a document produced for use in litigation or for the obtaining or giving of legal advice is because “it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers”. Privilege protects the confidentiality of documents produced for the purpose of communication between a potential litigant and the legal adviser and confidentiality facilitates the administration of justice. In Grant v Downs, Stephen, Mason and Murphy JJ said:

This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure ... to the solicitor.”

(Footnotes omitted.)

39    Before turning to explain my reasoning for proceeding on the basis that the holder of the relevant privileges is the applicant in a proceeding for a determination of native title, or, post-determination, the prescribed body corporate holding the native title on trust (or acting as agent for the common law holders), it is necessary to recall a matter which was clarified by Reeves J in QGC Pty Ltd v Bygrave [2010] FCA 659; 186 FCR 376.

40    Bygrave was a judicial review of a decision of a delegate of the Native Title Registrar, who refused to give notice of an indigenous land use agreement (ILUA) under s 24CH of the Native Title Act. The relevant representative body, Queensland South Native Title Services Ltd (Queensland South), applied to be joined as a party to the proceeding, and the questions before Reeves J on this occasion were whether it had a “sufficient interest” to be joined, and whether as a matter of discretion it should be joined. On this second question, Reeves J discussed whether as a matter of discretion there should be no joinder because a conflict of interest might arise if the representative body were to become a party, in circumstances where Queensland South’s counsel informed the Court during oral submissions that Queensland South was the “solicitor on the record” for the native title applicant involved in the proceeding.

41    As Reeves J noted at [30] and [33], that was not the case, especially since Queensland South was not a “solicitor”, and the “solicitor” recorded on the Court’s file was a natural person, and a person admitted to practice in Western Australia (although not, as the evidence eventually showed, in Queensland). Justice Reeves relevantly said at [30]:

It followed from this, that it must be Mr Rind who owed the relevant fiduciary duties, as solicitor, to the second respondents, and it must be he who may have the conflict of interest that was said to arise if Queensland South were to become a party to these proceedings.

42    It also turned out, as Reeves J explained at [41], that the evidence showed this person was not, in the relevant sense, the Principal Legal Officer” of Queensland South, as some documents filed with the Court had suggested. Instead, another individual still held that role and should have been identified as the solicitor on the record for the native title applicant. It was this chain of events, not reflecting altogether happily on those involved, which led Reeves J to make a series of observations about the role of a legal representative in litigation, and to apply those observations to the context of native title litigation.

43    His Honour stated at [46]-[47]:

The expression “solicitor on the record” is not defined in the Federal Court of Australia Act or the Federal Court Rules. However, it is implicit from the relevant provisions of the Federal Court Rules that the expression refers to the solicitor who is nominated to act for an applicant, in the commencing application, or to act for a respondent, in a notice of appearance: see O 4, r 4(1)(c) and O 9, r 4(1)(b) respectively.

A party to any proceedings in the Federal Court can only appear in one of two ways: in person, or by a solicitor: see O 4, r 14(1), O 9, r 1(1) and O 45, r 1(1). While this proposition is not expressly stated in the Federal Court Rules, it is clearly implicit from the fact that the Rules offer no other option, unless leave is obtained. Furthermore, support for it is provided by the limited circumstances in which leave may be obtained to appear by any other person.

44    At [49], having referred to the relevant rules concerning corporations and the need for representation by a solicitor unless leave is granted, Reeves J said:

To similar effect, s 85 of the Act allows a party to native title proceedings to appear in person, or by a barrister, or solicitor, or: “with the leave of the Federal Court, another person”. See also the interrelated provisions of O 78, r 42A of the Federal Court Rules. This provision is analogous to the Court’s inherent power to allow a party to appear other than by a solicitor. However, it has been held that such applications are not to be granted as a matter of course: see Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [10].

45    On the importance of identifying who is the solicitor on the record for a party, and having made a number of observations about that at [52]-[56], Reeves J said at [57]:

All these observations underscore the fact that the role of the solicitor on the record is critical to the Court’s ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. This is particularly so in native title litigation where the costs sanction against the parties has been significantly reduced by the provisions of s 85A of the Act requiring costs orders to be the exception in such litigation. This necessarily means that the Court has to rely even more heavily upon the diligence and integrity of the solicitor on the record, among others, in the case management of native title litigation. These observations also go to demonstrate how important it is that the solicitor on the record is properly identified by name and address and all the required contact information is provided in accordance with the Rules.

46    I respectfully agree with those observations. They are important in the current context in a different way: it is relevant in the current circumstances for the Court to be able to identify who is said to have been the solicitor on the record, as well as who is said to have been the “client”.

47    Justice Reeves ultimately found there was no conflict of interest in the Queensland South solicitor acting for the native title applicant also being a principal of Queensland South if it were to become a party to the proceeding. In his reasoning leading to this conclusion, Reeves J made this general statement about the duties of a solicitor (at [67]):

There is no doubt that a solicitor acting for a client has fiduciary obligations to that client which include a duty of undivided loyalty. As Mr O’Gorman correctly observed, a solicitor employed by a legal aid service has the same duty to his or her client: see Re Chapman, Feenstra, Cartwright & Gendall [1977] 2 NZLR 196 at 199 per Mahon J. For present purposes, this duty includes a proscription against the solicitor, at the same time, acting both for and against that client in the same matter or proceedings – this gives rise to an “inescapable conflict of interest”: see Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 234-235 per Millett LJ. This proscription is reflected in O 45, r 2 of the Federal Court Rules, which provides that:

Where a solicitor or his partner acts as solicitor for any party to any proceeding, or is a party to any proceeding, that solicitor shall not, without the leave of the Court, act for any other party to the proceedings not in the same interest.

However, this does not apply in the present circumstances because there is no suggestion that Mr Hardie is proposing to act for another party in the Iman #2 proceedings.

48    I do not refer to that passage because there is any allegation in the present situation that any solicitor within YMAC has not acted consistently with her or his fiduciary duties in dealing with the Sackett Connection Report or the Sackett Overlap Report. Rather, it is to emphasise that, in examining how a solicitor “on the record” in a proceeding for a party must behave, the focus is on the precise relationship which arises between that solicitor and her or his “client”. That leads to the obvious point that one must be able to identify who is the “client”.

49    This in turn leads me to explain who, in the present circumstances, I consider must be identified as the “client”, and the “party”, and therefore the holder or holders of the asserted privileges.

50    In McGlade v Native Title Registrar [2017] FCAFC 10; 251 FCR 172 at [361]-[377] I discussed the nature of the entity which is an “applicant” for the purposes of s 61 of the Native Title Act, and its representative nature. I adhere to and adopt those observations. I also adhere to and adopt the observations I made at [447]-[451] of McGlade about the scope and content of s 62A of the Native Title Act. At [450]-[451] I found that the terms of s 62A empowered the members of an applicant, acting jointly, to deal with an ILUA, while recognising that an ILUA cannot be registered and therefore cannot be made effective unless and until it is authorised by the claim group in accordance with the definition of authorisation in s 251A. This operates as a restraint on the capacity of the members of an applicant to bind the claim group as a whole.

51    In particular, I reiterate what I said at [448]:

Section 62A recognises that role, and empowers the individuals who constitute the applicant to perform such functions and make such decisions, because they are authorised by the claim group members under s 251B. The authorisation renders the individuals representatives of the group, and s 62A then empowers them to deal with “all matters arising under” the NT Act in relation to the claimant application (or the compensation application, as the case may be).

52    Added to this should be the obvious point that it is the applicant which is the party, indeed the moving party, in a claim under s 61 for a determination of native title: see s 84(2) and (8) of the Native Title Act. If the Court makes orders, it makes them in respect of, or against, the applicant, not the claim group members.

53    Likewise, the terms of s 61 make it clear that the moving party for a compensation claim is either the registered native title body corporate (RNTBC), or a person or persons authorised by the compensation claim group. In either case, it is the RNTBC or the “person or persons authorised” who are the moving parties, and if the latter, then as the terms of s 61(2)(b) make clear, the person or persons also becomes “the applicant”.

54    In a s 61 application, the “applicant” is also the person who must provide the primary evidence of the entitlement of the claim group: see s 62(1)(a), and s 62(3)(a) (in respect of compensation applications).

55    Section 66B provides the statutory mechanism by which members of the applicant can be replaced, and the presence and purpose of this provision also makes it clear the Native Title Act intends that the applicant is to be considered the relevant party for the purposes of the Act. In Lennon v South Australia [2010] FCA 743; 217 FCR 438 at [22], Mansfield J observed that s 66B may not “cover the field” in terms of how a native title application can be prosecuted where one of the people who constitute the applicant has died. In the circumstances of that case, his Honour held the surviving members of the applicant could continue to prosecute the claim group’s native title application, without the need for any application under s 66B. I respectfully agree. Justice Mansfield’s observations at [34] are relevant:

In my view, in the absence of any evidence to suggest to the contrary, that authorisation is to be understood in the context of the native title claim group recognising the circumstances of one or other of the authorised persons may change, and that one change may involve the death of one or more of them. Although it is not express, I consider that the authorisation in its terms is one for them, or so many of them, as continue to be living and able to discharge their representative function to do so. The authorisation contemplated not simply the making of the application, but dealing with matters in relation to it, which (as experience has shown) may extend over a quite lengthy period of time.

56    In this passage, Mansfield J is recognising the ongoing, collective responsibility of those individuals who constitute the applicant for the conduct of a native title application. His Honour’s approach supports the view I have formed that, subject to any specific factual situation where the evidence suggests to the contrary, it is the applicant, as an entity (and therefore those individuals who constitute the applicant, jointly) which is the “party” and the “client”, and holds any privilege.

57    Upon a determination of native title, the Native Title Act provides expressly for how the native title that has been recognised to exist in the common law holders is to be held, and by whom it is to be held, by creating the statutory entity of a RNTBC for that purpose. It also provides that in some circumstances the native title rights and interests are to be held by the common law holders themselves, but that then there must at least be a prescribed body corporate which is to act as agent or representative of the common law holders: see generally ss 56 and 57. Either way, the Native Title Act requires a prescribed body corporate to be created post-determination and to act as the RNTBC for the purposes of the Native Title Act.

58    That being the structure and purpose of the Native Title Act, it seems to me that insofar as any legal professional privilege arises (or like privileges under the uniform legislation), the relationship of lawyer and client for the purposes of the conduct of a proceeding must exist between the members of the applicant, jointly as the entity “the applicant” established by the Act, and any legal representatives. The Native Title Act contemplates that it will be the applicant who will conduct the proceeding on behalf of the claim group members, and therefore from whom the legal representative will take their instructions. Chaos would result if it were otherwise, and legal representatives in a native title claim could be subject to “instructions” of varying content by dozens or indeed hundreds of individuals. The Native Title Act provides no structure for a claim group to act communally in the conduct of a proceeding and indeed prohibits any other way of bringing a proceeding: see s 61(1). Aside from the definitional terms of s 251A and s 251B (as to which see my view of these provisions as definitions in McGlade at [423]-[424]) which pick up other provisions where the word “authorised” is used, the Native Title Act provides no structure or process for a claim group to act independently of its representatives, who are, jointly, “the applicant”. The Native Title Act prescribes when there must be “authorisation” from the whole of the claim group for a step, or a decision, and it is through those provisions, and s 66B, that the whole of the claim group retains control over those claim group members who, jointly, constitute the applicant.

59    Further, insofar as any without prejudice privilege is said to attach to documents or communications made during the course of a proceeding for a determination of native title, in my opinion the text, context and structure of the Native Title Act suggests that the holder of any such privilege must also be the applicant, as the party to the proceedings. It is the applicant who will, as the applicable party, participate in any mediation referred under s 86B, or conduct a negotiation under s 86F (that function being limited to parties). It is the applicant who will have to bring an application for a consent determination, and it is an applicant who will be able, consistently with s 62A, to agree to orders under s 87 of the Native Title Act (the agreement being one made between the parties: see s 87(1)). Granted that latter function may well be performed by an applicant only after what is commonly called an “authorisation meeting”, but in terms of the way the Native Title Act is intended to operate, that will be necessary because some conditions were originally placed on the scope of an applicant’s authority, which may include not agreeing to any consent determination without the express authorisation of the claim group. If that is the case, and assuming the placing of such conditions on the authority of an applicant is valid, the fact of such a condition being placed on an applicant’s authority to agree under s 87 does not alter the character and function of an applicant for the purposes of the Native Title Act. The same reasoning applies to s 87A.

60    I apply the same reasoning to a prescribed body corporate created after determination, and indeed the argument is all the stronger since such a body is a legal person and the intention of the Act is that the native title recognised in the common law holders will be held by a legal person, either on trust or as agent for the common law holders.

61    Three points can be made here, by way of analogy with the general law, and not for the purpose of any definitive determination that the circumstances are the same; rather, to illustrate that there is some consistency with general law principles in seeing an applicant, and a prescribed body corporate, as capable of holding legal professional privilege which arises by reason of advice given in respect of a s 61 claim, or in respect of a s 61 proceeding.

62    First, there is authority to the effect that legal professional privilege can survive the death of the client: see Dunesky v Elder [1992] FCA 311; 35 FCR 429 at 431-432 (Foster J). In Prus Grzybowski v Everingham [1986] NTSC 57; 44 NTR 7, Kearney J noted (at 12), relying on English authority, that the privilege survives the death of a client, and the question is then who can waive it, the answer given by the English authorities being the deceased’s personal representative: in that sense, the “successor” in law to the deceased person. That was the approach taken recently by Wheelahan J in Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 164 ALD 214 at [22]-[25], with which I respectfully agree. That common law position has been codified in s 117(1)(e) of the Evidence Act.

63    There is some sense in principle of applying this reasoning to the role of a prescribed body corporate in the native title context, once there is no longer an applicant and yet there are still communications or documents over which legal professional privilege, or without prejudice privilege, might be asserted. However, these cases also make clear there must still be some person or legal entity who can be identified as the “client” or the “party” for the purposes of waiver, even if that is in some kind of successor capacity.

64    Second, in Hancock, Brereton J discussed the question of who was the holder of legal professional privilege in a situation of trustee and beneficiary. At [6], his Honour said:

Moreover, Mrs Rinehart is not entitled to maintain against Bianca – as a beneficiary, and a fortiori as replacement trustee - a claim of privilege in respect of trust documents: Bianca as new trustee is as much entitled to them as her predecessor, Mrs Rinehart. Legal advice obtained by a trustee for guidance in the administration of the trust or the proper exercise of trust powers belongs to the trust, not to the trustee personally. On the other hand, advice obtained for the trustee’s personal assistance, such as in resisting litigation brought against the trustee by a beneficiary, belongs to the trustee alone. Thus to make good her claim, Mrs Rinehart must establish not only that the disputed documents were privileged, but that the privilege was hers personally, and not that of the trustee of the trust. The issue for determination is whether Mrs Rinehart has done so.

(Footnotes omitted.)

65    There are some parallels with the position of an applicant in a s 61 proceeding. Individuals who constitute the applicant do not hold any legal professional privilege personally: they hold it because they are, jointly, members of the applicant and the applicant (as a statutory concept) acts as a representative for the claim group. The privilege belongs to the applicant for the purposes of its statutory function, where the legal advice or litigation concerns the conduct of a s 61 proceeding, in the same way it belong to the trust where the legal advice (or litigation) concerns the administration of the trust.

66    Third, there may be a range of qualifications, and nuances, to be applied to circumstances where a communication or document is subject to legal professional privilege or without prejudice privilege during the currency of a s 61 proceeding, and to the question of who (if anyone) can assert that privilege (or waive it) after that proceeding has ended. In circumstances dealing with claims of privilege after a company had been subject to a winding up order and placed in liquidation, Sackville J held in Re Dallhold Investments Pty Ltd [1994] FCA 738; 53 FCR 339 at 342 that the directors could not assert legal professional privilege on behalf of the company. His Honour considered whether the appropriate person to do so might be the liquidator, and concluded that may well be the case. However, his Honour qualified this conclusion in several ways: first, he recognised no one might be able to assert the privilege (at 342); and second, he observed that whether or not the liquidators could do so would depend on the identification of a source of power for the liquidator to assert or waive such a privilege, and it would not be correct to see a liquidator as having that power “simply as a matter of course” (at 347).

67    I am by no means to be taken as finding that there is any necessary analogy with any of these situations: the legislative scheme of the Native Title Act is unique, the entities and concepts for which it provides, and their functions, are also unique. All these questions will no doubt be worked out on a case by case basis. I refer to these cases simply to point out, as I have noted, that depending on the factual circumstances and the necessary statutory analysis within the Native Title Act that accompanies the factual circumstances, there may be a range of legal outcomes, but the conclusions I have reached on the evidence and in the circumstances of this application, are not inconsistent with the approaches in the cases to which I have referred.

68    What is important is not to assume that in the unique and various circumstances arising in the making of claims under s 61 of the Native Title Act, there is some ongoing, automatic attachment of any particular privilege to documents such as anthropological reports. This case is a good illustration of the dangers of making too many assumptions about that matter, and a good illustration of the law’s focus on the circumstances in which a particular report was created, and on the particular circumstances in which such a report might have, or might not have, formed part of a confidential communication for the purposes of parties to a proceeding resolving their dispute. It is also a good illustration of the need for those who assert a privilege to be able to prove it. On that count, there are no special rules for native title proceedings.

The supplementary submissions of YMAC and the responsive submissions of the parties

69    As I have noted above, in light of the apparent change in position of YMAC towards the end of the interlocutory hearing regarding the question of who the relevant holder of privilege is in the context of a native title proceeding, I gave the parties leave to file supplementary written submissions on the question of who holds legal professional privilege and without prejudice privilege in the Sackett Connection Report and Sackett Overlap Report.

70    In terms of their content, the submissions filed went some way beyond the leave which had been granted. They were effectively yet another iteration of each of the parties’ and YMAC’s positions on all issues, and not necessarily a consistent iteration with previous ones.

71    YMAC filed its further submissions first, on 4 September 2019. In summary, YMAC submitted:

(a)    (at least prior to any determination of native title), the holders of legal professional privilege and/or without prejudice privilege are the members of the relevant native title claim groups;

(b)    after any determination of native title, the holders of legal professional privilege and/or without prejudice privilege are the determined common law holders;

(c)    the applicant (at the claim stage) or a prescribed body corporate (after determination) is not the relevant holder of privilege, for reasons including that:

(i)    privilege can attach to a report created prior to the filing of a native title claim and thereby prior to the existence of an “applicant”, such that any privilege must “vest in the people on whose behalf the advice is sought and to whom the advice is to be given, being the members of the potential claim group”;

(ii)    an “applicant” is a “statutory construct” with limited functions and decision-making powers, constituting “the vehicle for the creation of, but not the repository of, the reports”, and in that sense the applicant is more akin to an agent;

(iii)    there is no right to hold or waive privilege conferred on a prescribed body corporate under the Native Title Act or the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth);

(iv)    a person (presumably YMAC here meaning an individual who is a member of an applicant) can be an applicant in multiple proceedings, such that “the privilege is held for and on behalf of the group which they represent”; and

(v)    if the “applicant” is the relevant holder of any privilege, this would create a “void” in circumstances where a claim is dismissed and a lack of continuity following the “combination, replacement or abandonment of claims”.

(d)    whilst YMAC’s submissions included two summary tables setting out its position on who are the relevant holders of privilege depending on whether the holder is considered to be the “applicant” or the “common law holders”, ultimately YMAC submitted (at [19]):

For the reasons set out in these submissions, YMAC submits that:

     (a)    the Court should find that the holder of:

i.    legal professional privilege in the Sackett Reports are the members of the former Innawonga, GMY claim groups and Yinhawangka members of the former Innawonga Bunjima claim group (who are now determined Yinhawangka common law holders); and

ii.    without prejudice privilege in the Sackett Reports are the members of the former Yinhawangka A and B claim groups (who are now the determined Yinhawangka common law holders) and the State in respect of the Sackett Connection Report and, at least the members of the former GMY claim group) in respect of both reports; but

(b)    inspection should not be granted as none of the former claim group members, Applicants or common law holders have consented to any waiver of privilege and at least the former GMY members/Applicant will not consent to any waiver of privilege.

72    The Yinhawangka Gobawarrah applicant, Jurruru applicant and the State filed supplementary written submissions on 9 September 2019, which also responded to YMAC’s supplementary written submissions.

73    The Yinhawangka Gobawarrah applicant submitted, in summary:

(a)    that it agrees and adopts YMAC’s supplementary submissions at [8], [10] and [12]-[19] (which includes YMAC’s contentions on who should be found to hold legal professional privilege and without prejudice privilege in the Sackett reports);

(b)    it is unlikely a native title applicant can hold privilege, unless it is holding it on behalf of a claim group;

(c)    when briefing Dr Sackett to prepare the Sackett Connection Report and Sackett Overlap Report, YMAC was doing so “on behalf of those persons ‘who may hold native title’ as part of its ‘facilitation and assistance functions’ as defined in ss 203BB(1) and 203BJ(b)” of the Native Title Act;

(d)    alternatively, YMAC itself may hold privilege in the documents (“in its own right as principal and not as agent”), pursuant to its powers under s 203BJ(b); and

(e)    common interest privilege may also apply, should the Court consider “the three Yinhawangka claim groups together hold the privilege, or with YMAC”.

74    The Jurruru applicant submitted, in summary:

(a)    that the analysis in YMAC’s supplementary written submissions, which focuses on whether the claim groups, applicants or common law holders may assert privilege in the Sackett reports, should not be accepted;

(b)    the question of who can assert privilege in the documents does not arise in the present circumstances because there is no subsisting privilege in the documents; however, if privilege can now be asserted (and waived), the relevant holder of privilege in both of the Sackett reports is the Yinhawangka prescribed body corporate (Yinhawangka PBC);

(c)    privilege, if it subsists, can no longer be held by the applicants in the Innawonga, Gobawarrah Minduarra Yinhawanga (GMY) or Innawonga Bunjima (IB) claims because “they no longer exist in that capacity”;

(d)    privilege cannot be held by a native title applicant, nor by claim group members or common law holders (post-determination) because all of these are natural persons and eventually all will pass away, so it cannot be appropriate for any privilege to be held by them in such circumstances; and

(e)    if there is no legal professional privilege or without prejudice privilege in the Sackett reports, it is “unnecessary and undesirable” to “articulate a general principle as to who holds [the relevant privilege] in this case”.

75    The State submitted, in summary:

(a)    similarly to the Jurruru applicant, that to the extent legal professional privilege and without prejudice privilege subsist in the Sackett reports, “the most logical entity now able to assert, rely upon and waive any privilege” is the Yinhawangka PBC;

(b)    it does not agree with the analysis in YMAC’s supplementary submissions at [3]-[17]; and

(c)    even if the Innawonga, GMY or IB claim groups (or some of their members) were the relevant holders of privilege, “those applicants and their respective claim groups no longer exist, so none of them can assert or rely upon LPP or WPP now, certainly at least in any useful, practical sense”.

76    Before concluding this section of my reasons, it is appropriate to note that, despite the way YMAC put its supplementary written submissions, the lawyer representing YMAC made it clear at the hearing that YMAC had not sought, or attempted to seek, instructions from the claim groups it asserts hold the privilege, or from the Yinhawangka common law holders. YMAC’s lawyer contended such a process would be a “massive undertaking”, and to the extent that members of the Yinhawangka Gobawarrah claim group are also common law holders on the Yinhawangka determination, their attitude (and opposition to production) is known to the Court. I note also that YMAC’s supplementary submissions neither addressed nor clarified any of the crucial matters to which I have referred at [35] above: namely, whether all claimants as individuals would hold the asserted privilege, or would hold it in some collective way, and how the “will” of any individuals, or any collective “group”, would be ascertained, or from whom instructions would be sought, and in what fashion.

Conclusion on who holds the privilege

77    The parties were reluctant, in their supplementary written submissions, to acknowledge the Court needs to decide the question of who holds, or held, either of the privileges asserted by YMAC as answers to the production of the Sackett reports. YMAC in particular positively submitted the Court should not decide the question, all the while continuing to assert both privileges.

78    I do not consider it is possible to determine YMAC’s objection to production of the Sackett reports without identifying who holds, or held, the privilege it contends attached, and continues to attach, to both reports. Contrary to some of the suggestions in the supplementary written submissions about another course that could have been taken, YMAC does not and never has asserted it is itself, in the performance of one or other of its functions under Div 3 of Pt 11 of the Native Title Act, the holder of the privilege it asserts in the two documents.

79    Since YMAC continues to assert that two privileges exist in each report, they must be held by somebody. Identifying who that “somebody” is, on the evidence, and as a matter of fact, will assist in resolving whether either asserted privilege exists at all. It will obviously assist in resolving any issue of waiver. While, as I explain below, I have ultimately reached conclusions which align best with the Jurruru applicant’s submissions, I do not accept it would be appropriate to take a “short cut” to those conclusions by ignoring the debate over who holds the privilege.

80    However, contrary to the supplementary written submissions of the Jurruru applicant at [8], the determination of this question is not for the purpose of articulating any general principle”, but rather for identifying what is necessary to resolve the particular objections of YMAC to the production of the two Sackett reports. It may well be, as the Jurruru applicant’s supplementary written submissions contend at [10], that there are a number of circumstances under which an expert anthropological report might come into existence, and each distinct factual circumstance will inform (and perhaps determine) who holds, and can assert, any privilege. As the decision in Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817 makes clear, a representative body may itself hold an asserted privilege. Despite the Yinhawangka Gobawarrah applicant seeking belatedly to add this as another basis for resisting production, a Pappin-like argument is not YMAC’s contention here, and it is the subpoenaed entity.

81    My conclusion is that where, at the time of the creation of both Sackett reports, there was an undetermined claim to native title under s 61 of the Native Title Act, and an expert anthropological report is contended to have been created for the dominant purpose of use in the proceeding constituting that claim, the holder of any privilege that is proven to exist is likely to be the relevant applicant, as identified for the purposes of s 61. Those persons constituting the applicant can give instructions to their legal representatives, jointly and in accordance with their authorisation by the claim group (but also taking into account the terms of s 62A about the extent of their authority), about the maintenance or waiver of the privilege in the same way they give any other instructions to their legal representatives about the conduct of a proceeding under s 61.

82    Where it is contended that an expert anthropological report was, or formed part of, a confidential communication between parties for the purposes of settling a native title proceeding made under s 61 of the Native Title Act, if the communication was on behalf of the s 61 applicant, then the holder of any without prejudice privilege must again, in my opinion, be that applicant, as the party identified for the purposes of a s 61 application.

83    Where a claim has been determined, and a prescribed body corporate established (as here with the Yinhawangka claims), it seems to me that the only rational and workable way to approach the operation of the law of privilege in anthropological reports, in the context of the Native Title Act, is to see any asserted legal professional privilege and any asserted without prejudice privilege, in a communication or document created during a s 61 proceeding, as passing from the relevant applicant to the relevant prescribed body corporate, subject to any arguments about loss or waiver. The relevant prescribed body corporate, in this situation, would hold any privilege asserted to still exist in a communication or a document created during the s 61 proceeding. The maintenance or waiver of any asserted privilege would then be subject to the usual decision-making processes of that prescribed body corporate, in accordance with its constitution and rule book, in the same way other decisions about giving instructions to legal representatives might be given. I emphasise, however, that each case will turn very much on its own facts in terms of what communications or documents might still be subject to a claim of some kind of privilege post-determination. Each assertion of any such privilege would need to be proven in the usual way, and the rules about waiver would still apply, and might well encompass an examination of the conduct of a s 61 applicant prior to any determination.

84    In reaching these conclusions, it should not be assumed I am making a positive finding that individual claim group members are not, for any purpose, the “client” of a lawyer who represents the native title applicant for the purposes of a claim brought under s 61 of the Native Title Act. There are a range of ethical and professional duties owed by a lawyer to her or his “client” which may well attach and extend to those duties being owed to individual claim group members, as much as they are owed to the people who, jointly, constitute the applicant. Once again, the circumstances presented by the Native Title Act are unique, and call for careful consideration of how existing legal principle applies to those circumstances. I make no exhaustive findings on these matters: the only findings I make are those which I consider necessary, as a matter of fact, to determine the claims to legal professional privilege and without prejudice privilege made by YMAC. To determine those, it is necessary to determine who, in relation to the Sackett Connection Report and the Sackett Overlap Report, was the “client” of the lawyer or lawyers within YMAC who were acting at the time the Sackett reports were created, and where (as is the case here, at least on some of the submissions) that “client” may no longer exist, what has happened to any privilege asserted to exist.

85    I do note, however, that irrespective of whoever YMAC asserts is the “client” of the solicitor or solicitors within YMAC who were acting as the legal representatives at the relevant time, neither YMAC nor any individual solicitor appears on the evidence to have approached any client to seek instructions about the position YMAC should take in answer to the subpoena, or on whether any asserted existing privilege should be waived. As the evidence in this case reveals, there may indeed have been express waivers, one assumes, on instructions.

86    When what is in issue are documents created almost a decade ago, in very different legal circumstances, I doubt any notion of “implied” instructions, or ostensible authority, can operate: cf the Jurruru applicant’s supplementary written submissions at [13]. To adopt such a broad approach to “implied instructions” also appears to deny the autonomy and role of the individual claim group members, or common law holders, that I had apprehended YMAC’s submissions on who holds any privilege were in part designed to support. Adopting the approach I prefer (to focus on a s 61 applicant and any prescribed body corporate), it may also deny the autonomy of the applicant, and its members acting jointly, and the autonomy of any prescribed body corporate.

87    It is also not apparent from the evidence what role has been played by YMAC (as a representative body and “custodian” of the Sackett reports) in relation to the other pre-existing anthropological reports which have now been freely exchanged as between the Jurruru applicant and the Yinhawangka Gobawarrah applicant. Obviously individual lawyer(s) within YMAC, who act for the Jurruru applicant, have been closely involved in decisions about this exchange, and have produced some of the pre-existing anthropological reports now handed over to the Yinhawangka Gobawarrah applicant’s lawyers. From whose custody within YMAC those reports were produced is unclear, although the email correspondence in Mr Young’s affidavit at Annexure “GY5” says the reports were exchanged “via YMAC”. It appears that during this exchange in November 2018, all concerned (including YMAC) appeared to accept that whatever privilege existed in the earlier reports of Dr Palmer, and the earlier reports of Dr Kenny, could be waived without anyone having to convene a claim group meeting, or a meeting of common law holders. It is unclear on the evidence whether any instructions from any s 61 applicant (or the Yinhawangka PBC) were sought.

88    Accordingly, I proceed on the basis that, at the time the Sackett Connection Report and the Sackett Overlap Report were created, or at the time relevant events occurred (such as any communication attaching or including the Sackett Connection report or the Sackett Overlap Report which could give rise to without prejudice privilege), the holder of the asserted privilege was likely to be the relevant s 61 applicant for a determination of native title.

Can the GMY and the Yinhawangka Gobawarrah be treated as “the same”

89    Various submissions were made by the parties and YMAC on this topic. Mr Meegan’s evidence (at [17] and [35]) is sparse, but it suggests that the members of the GMY claim group (when it existed and was represented by the GMY applicant) and the members of the Yinhawangka Gobawarrah claim group (since 2016, as represented by the Yinhawangka Gobawarrah applicant) are also Yinhawangka common law holders, and were members of the Yinhawangka claim groups. Indeed, as Mr Roy Tommy deposes, he is a director of the Yinhawangka PBC.

90    Counsel for the Yinhawangka Gobawarrah applicant clarified during oral submissions that the members of the applicant for the GMY claim, and the members of the applicant for the Yinhawangka Gobawarrah claim, had some commonalities, but were not identical. In part that may be because some key GMY elders passed away before the GMY claim was dismissed and therefore before the Yinhawangka Gobawarrah claim was filed. It is also apparent that the claim group membership was differently described as between the GMY claim and the Yinhawangka Gobawarrah claim. The GMY claim described the claim group by reference to named individuals. The Yinhawangka Gobawarrah claim describes the claim group by reference to two sets of Yinhawangka apical ancestors. I accept Mr Meegan’s evidence may well be correct when it characterises this as a “significant if not perfect overlap” in claim group members.

91    In the separate question, it is an agreed fact (at [30] of the amended agreed statement of facts) that the Yinhawangka Gobawarrah claim follows the boundary of the GMY claim.

92    Accordingly, I accept there is a sufficient evidentiary basis to conclude, as YMAC and the parties submitted, that the GMY claim group and the Yinhawangka Gobawarrah claim group can be treated as composed of essentially the same people, and the GMY applicant and the Yinhawangka Gobawarrah applicant can be treated as representing essentially the same claim group.

Sackett Connection Report

Factual findings

93    The evidence is that Dr Sackett was retained to prepare a connection report in late 2007. Mr Meegan deposed that it was September, but I note the retainer is signed by YMAC’s Executive Director on 2 October 2007. The retainer was annexed to Mr Meegan’s affidavit. Clause 2.2 provided that Dr Sackett’s task was set out in Schedule 3 to the retainer. It is clear that should be a reference to Schedule 2. Clause 2.8 was a confidentiality clause which, amongst other things, purported to require Dr Sackett to keep confidential “all material, information and communications obtained from and pertaining to the Consultancy”. Clause 4 purported to vest all intellectual property in material and information, and any report produced, in YMAC. YMAC did not rely on any of these clauses in argument, or to resist production of the report.

94    Schedule 2 described Dr Sackett’s task by first identifying the native title claims which had, by this stage in late 2007, been filed with the Court, and went on to describe what his principal focus was to be:

This schedule to your contract provides you with a formal brief detailing the work you are required to perform in relation to the Pilbara Connection Project. This primarily concerns the native title claims entitled: Innawonga native title claim, with Federal Court designation WAD 6285/98; Gobawarrah Minduarra Yinhawanga native title claim, with Federal Court designation WAD 6173/98; and Innawonga Bunjima native title claim, with Federal Court Designation WAD 6096/89 (“the Claims”). The latter claim is brought jointly between persons who identify as Banyjima and persons who identify as Yinhawangka. The assessment of the native title rights and interests of those members of the Innawonga Bunjima native title claim group who identify as Banyjima will be the subject of a separate brief to another researcher.

The consultancy work sought from you in relation to Yinhawangka (including Innawonga and Gobawarrah Minduarra Yinhawanga) is part of this larger project, which will include expert anthropological research concerning the contemporary system(s) of Law in the region as a whole.

Your report then may not relate solely to the area the subject of an existing claim, but provides an opinion as to an area or areas which, in accordance with the ethnographic data, appear to be the subject of one or more native titles held by one or more groupings of Yinhawangka.

The researcher should bear in mind that the report is intended to provide an expert opinion which will assist in providing advice to applicants for native title and perhaps ultimately a court in determining (with the consent of other parties or following a trial) in accordance with section 225 of the Native Title Act 1993 (Cth) (NTA) whether or not native title exists in relation to a particular area…

(Emphasis added.)

95    The Jurruru applicant placed some emphasis on passages in the retainer such as the final passage in the above extract, submitting it was clear from when he was retained that Dr Sackett might eventually become an expert witness in a trial on connection. I accept the Jurruru applicant’s submission that there were several passages in Schedule 2 which made it clear this was one eventuality clearly contemplated as within the terms of the retainer. I find it is likely that this additional purpose remained in contemplation when Dr Sackett created the version of his report which he provided to YMAC in October 2010.

96    The chronology filed by YMAC reveals that the IB claim was filed in June 1996, the GMY claim in June 1997 and the Innawonga claim in September 1998. These dates do not appear to be disputed.

97    Although Mr Meegan deposed that “[t]he Innawonga people in the IB claim were mostly the same as those in the Innawonga claim and mostly met as part of the Innawonga claim group in relation to Innawonga connection research matters”, it is apparent they had their own claim filed under s 61 of the Native Title Act, identifying with Bunjima/Banjima People. It is unclear whether when Mr Meegan uses the term “Innawonga”, he is describing the same group of people as those he means when he uses the term “Yinhawangka”.

98    Mr Meegan’s evidence, and the chronology produced by YMAC, reveal that Dr Sackett provided preliminary reports and drafts of Sackett Connection Report to YMAC and presented to the GMY and Innawonga native title claim groups” between 2008 and 2010. That much appears tolerably clearly established on the evidence.

99    Thereafter, the evidence becomes less clear.

100    The YMAC chronology states that on 1 May 2010, the combined Innawonga and GMY claim groups “authorised YMAC to provide the Sackett Connection Report to the State”. However, on Mr Meegan’s evidence, the report was not by this time a finalised document and therefore it is rather unclear which “Sackett Connection Report” is being referred to in this chronology entry.

101    Mr Meegan’s evidence at [14] of his affidavit is that Dr Sackett “finalised the Sackett Connection Report in late 2011”. That evidence is also difficult to reconcile with the chronology and other evidence.

102    Whatever version was authorised by the claim groups in May 2010 may not have been identical to the version provided to the State over a year later. There is also no evidence from Mr Meegan about what work the adjective “finalised” does in this sentence, especially when considered in light of the other evidence to which I refer at [104] below.

103    It would appear that at least in part due to the work Dr Sackett had been doing, from mid- to late 2010, the members of the various claim groups decided to reformulate their claims to native title. Mr Meegan deposes that:

In 2010, members of the Innawonga, the Innawonga of IB and the GMY claim groups resolved to combine their claims and re-apply for a native title determination as the Yinhawangka claim group. Their claim was brought in two parts because it involved amendments and combinations of different claims.

On 12 August 2010, the Yinhawangka Part B application was filed with the Federal Court (WAD216/2014).

On 11 November 2010, the Yinhawangka Part A application was filed with the Federal Court (WAD 340/2010).

By an order of the Court dated 12 August 2010, the GMY Application was amended to reduce the claim to the part that would not be covered by the Yinhawangka Part B Application.

104    Reference must then be made to a communication from Dr Sackett himself to Judicial Registrar McGregor on 1 March 2019, annexed to Mr Cummins’ affidavit. That communication from Dr Sackett states:

a.    On 13 September 2007, I was briefed (by then) Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation (subsequently Yamatji Marlpa Aboriginal Corporation) to prepare a report in support of the Yinhawangka claim group.

b.    On 20 February 2010, I was asked (by now) Yamatji Marlpa Aboriginal Corporation to prepare a report on the Gobawarrah Minduarra Yinhawangka and Jurruru Overlap.

c.    On 20 October 2010, I provided my Yinhawangka Native Title Claim: Connection Report to Yamatji Marlpa Aboriginal Corporation.

d.    On 20 October 2010, I also provided my report on the Gobawarrah Minduarra Yinhawangka and Jurruru Claims to the Overlap Area and the Unoverlapped Jabagurra Area to Yamatji Marlpa Aboriginal Corporation.

e.    On 18 July 2017 the Yinhawangka Native Title Claim was determined by consent (see Bromberg J Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801).

105    These dates and descriptions in (c) and (d) above align with the titles of the two documents in issue.

106    Yet Mr Meegan deposes (at [16] of his affidavit) that the Sackett Connection Report was provided to the State in support of the Yinhawangka native title claims on 15 November 2011, more than a year after Dr Sackett provided it to YMAC.

107    Mr Meegan also deposes that:

(a)    the Sackett Connection Report has never been tendered in a proceeding; and

(b)    solicitors within YMAC ceased acting for the GMY applicant in March 2011.

108    Taking into account Dr Sackett’s communication set out at [104] above, the titles of the documents sought by the subpoena, the correlation between those titles and Dr Sackett’s communication and the fact that YMAC has never submitted to the Court that there is a version of Dr Sackett’s Connection Report bearing a later date than 2010, it is difficult to know what to make of Mr Meegan’s evidence that Dr Sackett “finalised” his report in late 2011. This seems incongruous, and inconsistent with the rest of the evidence. The Court would have expected YMAC to make a clear disclosure to the Court and the parties if there was a later, 2011, version of Dr Sackett’s report. Dr Sackett himself does not mention one.

109    In those circumstances, I cannot give any weight to Mr Meegan’s evidence about a “finalised” version of the report being created in “late 2011”. I give most weight to Dr Sackett’s own communication which is in evidence, and to the dates in the title of the report.

110    These discrepancies matter because it is the date of the creation of the Sackett Connection Report which is material. Whether a document has been created for a purpose which attracts legal professional privilege is to be assessed at the time the document was produced or brought into existence: Grant v Downs at 677 (Barwick CJ).

111    In relation to reports where a third party is the author, the relevant purpose may not be that of the author, but that of the legal representative commissioning the report: see Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company [1992] FCA 322; 36 FCR 557 at 568-569 (Gummow J); Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] VSCA 59; 4 VR 332 at 338 (Batt JA, Charles and Callaway JJA agreeing); Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2008] FCA 554 at [30] (Tamberlin J).

112    In this case, Mr Meegan does not depose himself to any purpose for which the Sackett Connection Report was provided to YMAC by Dr Sackett in October 2010 (or at any other date). He does not give evidence whether he was the relevant legal representative at the time. Dr Sackett was retained in 2007. There is no positive evidence Mr Meegan was the relevant legal representative when Dr Sackett provided his report in October 2010. Rather, Mr Meegan annexes the retainer and brief to Dr Sackett. That, I infer, is the evidence on which YMAC invites the Court to determine the purpose for which the Sackett Connection Report was created.

113    There were obviously various iterations of Dr Sackett’s work, and Mr Meegan deposes to there having been “drafts” between 2008 and 2010. However, what is under subpoena, production of which is resisted by YMAC, is the document which is named in the subpoena, bears a 2010 date and correlates to the document in Dr Sackett’s communication which is in evidence. The question is for what purpose that document was created, and, when it was provided to YMAC by Dr Sackett, whether it had the requisite confidentiality.

114    Therefore, I infer, and find, that the version of the Sackett Connection Report identified in the subpoena was created after the Yinhawangka Part B claim was filed on 12 August 2010, and is likely to have been completed (and in that sense, created) around 20 October 2010. How, if at all, it dealt with or supported the filing of the Yinhawangka Part A claim on 11 November 2010 remains unclear on the evidence. The dominant purpose for which it was created should be assessed as at around 20 October 2010.

Legal professional privilege

115    In terms of applicable legal principle, I note the following matters, in addition to matters I have mentioned elsewhere in these reasons.

116    Ascertaining what purpose for the creation of a communication or document was the “dominant purpose” is a question of fact. In this context, the meaning of the word “dominant” has been explained in a variety of ways, and here I refer to two, which in my respectful opinion capture its function in the phrase “dominant purpose”. First, in Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [7], Spiegelman CJ (with whom Sheller JA and Campbell AJA agreed) said:

The test of “dominant purpose has been expressed in terms of “clear paramountcy (see Waugh v British Railways Board [1980] AC 521, at 543; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332, at 336-337[10]). As the High Court said in a different context:

In its ordinary meaning, dominant indicates the purpose which was the ruling, prevailing, or most influential purpose. [Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 416 (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ).]

117    Second, in AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 at [44(5)], Young J described a dominant purpose as one which “predominates over other purposes”.

118    The onus of proving, as a matter of fact, a purpose which falls within the applicable principle lies here on YMAC.

119    It is also clear that the dominant purpose at the time a document or communication is brought into existence may be quite a different matter from the use to which that document or communication is subsequently put: see Propend Finance at 508 (Brennan CJ).

120    In my opinion, the Jurruru applicant was correct to submit at the interlocutory hearing that if the Sackett Connection Report is subject to legal professional privilege, the “clients” for the purposes of that privilege would have been the Yinhawangka Part A and Part B applicants, and not the GMY applicant, the Innawonga applicant or the IB applicant. The findings I have made about the time the document was created, and its obvious purpose (including by reason of its title) mean that if it was created for the dominant purpose of a YMAC lawyer providing legal advice to a client, or for use in legal proceedings, on both counts this would have been in respect of the Yinhawangka applicants and the (then very recent, combined) Yinhawangka proceedings. Earlier drafts of the Sackett Connection Report, if they exist, are not sought. It is this document, and the purpose for the creation of this document, which is in issue.

121    In its supplementary written submissions, the Jurruru applicant submits that if legal professional privilege can be asserted in relation to the Sackett Connection Report, the holder of that privilege is now the Yinhawangka RNTBC (being the Yinhawangka Aboriginal Corporation (YAC)). I note the “passing” of privilege to the Yinhawangka PBC as “successor” to the Yinhawangka applicants was mentioned by senior counsel for the Jurruru in oral submissions but I had otherwise understood him as having agreed at the hearing that the relevant clients for the purposes of legal professional privilege, at the time the document was created, were the Yinhawangka applicants.

122    I am prepared to accept for the purposes of the arguments on this application that, as at the date the argument about production under the subpoena was occurring, if legal professional privilege remained in the Sackett Connection Report, the holder of the privilege would now be the Yinhawangka PBC. It would now be the Yinhawangka PBC, if any person, which could give instructions to maintain or waive any asserted privilege.

123    Those findings all assume legal professional privilege initially attached to the Sackett Connection Report, was not waived, and was passed to the YAC after the Yinhawangka determination, as the entity holding native title on behalf of the common law holders.

124    However, the Jurruru applicant submits that the Sackett Connection Report was never subject to legal professional privilege. It relies on Goldberg J’s decision in Bailey v Beagle Management Pty Ltd [2001] FCA 185 at [10]-[12]. That decision concerned the production of a report by an independent chartered accountant. On return of a notice to produce, an objection to production was made on the basis of both legal professional privilege and without prejudice privilege. At [11], Goldberg J said:

One has to be careful about the use of the phrase “brought into existence for the purpose of the conduct of the litigation” as a distinction should be drawn between bringing a document into existence for the purpose of conducting litigation by a party on the basis that the document will not be shown to the other party, unless there be an express waiver, and a document brought into existence during the course of litigation for the purpose of settling the litigation which is intended to be shown to the other party. Properly characterised, it is not correct to say that a document is brought into existence for the purpose of the conduct of litigation, and so is privileged from production, if it is brought into existence, albeit to try and settle the litigation, but for the purpose of being shown to the other side.

(Emphasis added.)

125    I agree with the Jurruru applicant that this reasoning is applicable on the evidence to the Sackett Connection Report. It is clear that by the time this particular document was created (as I have found, around 20 October 2010), it was destined for submission to the State of Western Australia as part of the negotiations towards a consent determination. It was not created so that it could be kept from the State, and used in an adversarial way in a contested claim for native title. Although I accept that the terms of Dr Sackett’s retainer contemplated that Dr Sackett might eventually have to give expert evidence in a contested hearing, and that any report he produced might be used in that context, by late October 2010 any such possible purpose was not the dominant purpose for which this version of the report was created. To use the descriptions to which I have referred above: the purpose of this particular document being produced confidentially and for possible later use as Dr Sackett’s opinion in a piece of contested litigation under s 61 about the Yinhawangka native title claims did not dominate or prevail over the purpose of submitting it to the State to try and secure the State’s agreement to a consent determination. Matters related to which areas of land and waters in this region would be claimed by whom had advanced to the point where whoever was then the solicitor for the Yinhawangka applicants (which is not disclosed in Mr Meegan’s evidence) was at the point of engaging with the State about a consent determination. That is in contrast, for example, to the position which on the evidence had existed in 2007, when there were three original, and different, claims and claim groups to which Dr Sackett’s initial retainer referred.

126    Therefore, I find that the Sackett Connection Report was not, and is not, subject to legal professional privilege. It was not created for the dominant purpose of use in legal proceedings by the Yinhawangka applicants against the State and other respondents, or for the dominant purpose of a lawyer within YMAC providing legal advice to the Yinhawangka applicants, or the Yinhawangka claim groups. The evidence supports a finding that this version of the report was produced for the purpose of using Dr Sackett’s opinions, in accordance with the qualifications and restrictions imposed by the State through its “Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title” (WA Determination Guidelines), to persuade the State of Western Australia to agree to a consent determination in favour of the Yinhawangka People. The State was a respondent to the Yinhawangka claims, and the main contradictor. This conclusion also accords with the approach taken by Mansfield J in Lake Torrens Overlap Proceedings [2015] FCA 519, to which I refer below.

127    I note that Mr Meegan does not depose in his affidavit to what was, in fact, the dominant purpose for which he says the document identified in the subpoena was created. Justice Brereton’s statement in Hancock, to which I have referred, suggests the most direct source of evidence of purpose might have been to have the responsible solicitor depose to the purpose. It is unclear whether Mr Meegan was that relevant YMAC solicitor in October 2010: at least, he has not stated that he was. Instead, in any event, the terms of the retainer have been relied on. That retainer dates from 2007. Although Dr Sackett’s retainer refers to several purposes to which his report might be put, as I have noted, what matters is the purpose for which this particular version of Dr Sackett’s report was created around 20 October 2010. The dominant purpose for creating that version, the completed report, was submission to the State of Western Australia (and potentially to other respondents). As I explain below, I also do not consider any necessary confidentiality attached to its provision to the State.

128    Even if the report had been subject to legal professional privilege, as I explain below, it would have been waived by submission of the report to the State.

Without prejudice privilege

Applicable principles

129    It is necessary to say something briefly about the nature and purpose of without prejudice privilege. From the many authorities, I refer only to the following. In Pihiga Pty Ltd v Roche [2011] FCA 240; 278 ALR 209, Lander J set out at [86]-[87], with his Honour’s customary conciseness, a summary of the basis for the privilege (noting in subsequent paragraphs a number of exceptions to its application):

The law has developed so that there are now two bases underpinning the without prejudice rule, namely the public interest in promoting the settlement of disputes without calling in aide the courts; and an express or implied agreement between the parties that their communications will be kept confidential.

Moreover, the rule is not restricted simply to an offer made and not accepted but includes communications of all kinds which are genuinely entered into for the purpose of trying to reach a compromise. The second aspect of the rule is to encourage the free and frank exchange of views between the parties.

130    The second authority is the decision of Mansfield J in Lake Torrens Overlap Proceedings. This decision is of particular relevance since, first, it was a native title proceeding, and second, it concerned pre-existing historical, anthropological and other expert reports held by each of the parties to the proceedings and by South Australian Native Title Services (SANTS), the relevant representative body. Third, the proceedings concerned overlapping claims to land and waters by (respectively) the Kokatha people and the Adnyamathanha people. Fourth, the overlap area was one where, as Mansfield J noted at [16], there had been a number of claims previously made by other Indigenous groups, including the Kokatha people (but in some respects differently defined from the Kokatha claim group before Mansfield J). In distinction to the current situation, at least one of the reports had been used in a mediation process before the National Native Title Tribunal, although his Honour noted at [32] that the use in the NNTT process was not strongly pressed in oral submissions.

131    SANTS resisted inspection of two documents, both of which for present purposes can be described as pre-existing expert reports exploring the connection of various groups to the area covered by the proceedings. Interestingly, SANTS (which was engaged as the solicitor for the Kokatha applicant) did not make an application to prevent inspection of the documents by the Adnyamathanha applicant or the State, which Mansfield J noted meant in “practical terms” SANTS was seeking to prevent access to them by two mining companies who were respondents to the proceedings. SANTS made a number of arguments (recorded at [17]-[21] of the reasons) which bear some similarities to the arguments made by YMAC in this proceeding. Both legal professional privilege and without prejudice privilege were relied upon. It would appear Mansfield J may have had more detailed evidence before him from SANTS than this Court does on the present application from YMAC. Ultimately, Mansfield J decided that no privilege attached to the reports and they were required to be made available for inspection by all parties including the mining companies, subject to certain conditions to accommodate any relevant cultural considerations.

132    As to claims based on confidentiality rather than a particular privilege, Mansfield J found at [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.

133    On the issue of waiver, his Honour found (at [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.

134    As to the basis for without prejudice privilege, Mansfield J said at [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.

135    I respectfully agree with this summary.

136    Critically, at [59], Mansfield J said (concluding there was no without prejudice privilege):

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.

137    At [61], Mansfield J distinguished communications between expert anthropologists for the respective parties preceding the Cane Report, recognising a claim might be sustained that those communications were subject to without prejudice privilege: namely, because “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)”. His Honour saw that as quite different from the provision of the final Cane Report to the State of South Australia under the South Australian equivalent of the WA Determination Guidelines.

138    As to the fact that the Cane Report was submitted to the State in conformity with the requirements of its “CD Policy”, Mansfield J said at [65]-[66]:

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].

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.

(Emphasis added.)

139    I respectfully agree. I also consider that a similar finding to that made by Mansfield J at [59] (set out at [136] above), can be made in this case. It was not suggested that, in around October 2010 (or even in November 2011), there was any express or tacit agreement that Dr Sackett’s reports would not be available for use in any future proceedings about the overlap area. Further, neither YMAC nor the Yinhawangka Gobawarrah applicant submitted Dr Sackett would be unable to give expert evidence in the separate question hearing, including by the adoption of all or part of his 2010 reports.

140    The considerations set out by Mansfield J are applicable in this case: the Sackett Connection Report was relied on by the State as a fundamental aspect of its decision to agree, on behalf of the people of Western Australia, to a consent determination in the Yinhawangka Part A and Part B applications. Indeed, in his reasons in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801 for making a consent determination in the Yinhawangka proceedings, Bromberg J relevantly stated (at [20]):

Various materials were provided by the Applicants to the State between November 2011 and July 2013 in support of the claimants’ connection to the determination area (“Connection Material”). The Connection Material included:

(a)    an anthropological report by Dr Lee Sackett, titled Yinhawangka Native Title Claim: Connection Report; relating to the former Innawonga, Gobawarrah Minduarra Yinhawanga and Innawonga Bunjima native title claims, dated October 2010

(Original emphasis.)

141    I note this report has a different title to the one sought on the subpoena. However, as I have also noted, YMAC did not submit to the Court nor disclose at any stage, that there was in fact a later version of the Sackett Connection Report than the one sought in the subpoena. I find the report to which Bromberg J refers in Jones at [20] is the same document to which Mr Meegan refers in his affidavit as having been provided to the State in November 2011, and is the same document Dr Sackett identifies in his communication in evidence as having been provided to YMAC on 20 October 2010. Indeed, to confirm this, and since I have declined to inspect the reports, I asked Judicial Registrar McGregor to check the title of the document produced by YMAC in answer to the subpoena and compare it to the title given in Bromberg J’s reasons at [20]. Judicial Registrar McGregor has confirmed the titles are the same. Since the Jurruru applicant has not seen the document, that explains in my opinion the slightly different title in the subpoena itself.

142    Apparently, the report to which Bromberg J referred was not filed with the Court, but as I note below, the WA Determination Guidelines in fact contemplate that it should have been.

143    No party drew the Court’s attention to the Lake Torrens Overlap Proceedings case before, or during, the interlocutory hearing. I found the case in my own research after judgment was reserved. The case was then subsequently referred to by the Jurruru applicant and the State in their supplementary written submissions, but not by YMAC in its supplementary written submissions filed one week earlier.

144    Lake Torrens Overlap Proceedings is a published decision by a highly respected judge with great experience in native title, made in the context of a native title overlap proceeding which itself assumed some prominence. Adopting an analogy from administrative law procedural fairness principles, where a matter so plainly arises on the material that a party could be expected to have apprehended it would be dealt with, a failure to draw it to the party’s attention will not constitute a denial of procedural fairness: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 591-592. I do not consider the Court in those circumstances was obliged to seek a further round of submissions from YMAC and the Yinhawangka Gobawarrah applicant, in particular where it is evident that, following the hearing, at least two parties came across the case and chose to refer to it in supplementary written submissions.

145    In any event, I would have reached the same conclusions regarding the disposition of this interlocutory application irrespective of Mansfield J’s decision in Lake Torrens Overlap Proceedings.

146    Notwithstanding that, I should follow Mansfield J’s articulation of the applicable principles, especially given the closeness of the context, unless it can be distinguished on the facts, or I consider it to be plainly wrong: see BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at [83]-[88] (Greenwood J, Sundberg J agreeing), and the authorities cited in my decision in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [177]. I do not consider the principles and approach taken by Mansfield J are relevantly distinguishable from the present situation. Far from considering his Honour was plainly wrong, I respectfully consider his Honour was plainly correct.

147    The content of the WA Determination Guidelines (in particular cl 10.8) appears to be relevantly similar to the South Australian guidelines to which Mansfield J referred in Lake Torrens Overlap Proceedings, and I adopt the same approach as his Honour.

148    I note that by cl 10.8 of the WA Determination Guidelines, the State undertook to return connection reports at any stage in the assessment process at the claimants’ request – I infer this would be in the context of a negotiation breaking down, or the claimants deciding they do not wish to continue to negotiate with the State. In those circumstances, as with all expert reports to be relied upon in a proceeding, it would not remain covered by legal professional privilege, and in any event upon disclosure to the State legal professional privilege would have been lost.

149    I note there is also a section in the Guidelines dealing with confidentiality. That section provides:

5.    CONFIDENTIALITY

5.1    The Government undertakes, to the extent that it is able to do so at law, that information provided in connection reports and any other information exchanged during any negotiation process will be, unless otherwise agreed:

   •    ‘without prejudice’ and confidential; and

   •    dealt with in accordance with cultural restrictions communicated to the Government, the basis of which is demonstrated.

5.2    In preparing a connection report, native title claimants should consider the extent to which they need to rely upon restricted information. It will not assist the process of negotiation if cultural restrictions on the information provided are such that the Government’s ability to consider it, despite reasonable attempts to accommodate cultural concerns or restrictions, is so inhibited that it cannot assess the material.

5.3    However, in the event that the Government is prepared to negotiate the form of a determination of native title, the connection report or some modified version of the report will have to be provided to the Federal Court to satisfy the Court that there is a sufficient basis upon which it can make a determination under section 87 of the Native Title Act in the terms agreed by the parties. In addition, other respondent parties may also seek access to the material before they are prepared to agree to enter into the negotiations. This issue is dealt with in part 6 below.

(Footnote omitted and emphasis added.)

150    The content of these Guidelines, in the context of Mr Meegan’s evidence, further supports my finding that the purpose of the creation and submission of this particular document (that is, this version of Dr Sackett’s work on connection for the Yinhawangka claims) was wider than a negotiations purpose, and more importantly that the parties did not contemplate the report would necessarily remain undisclosed, including to the Court and other respondents.

The Jurruru applicant’s contentions

151    The Jurruru applicant submitted the Sackett Connection Report was not subject to without prejudice privilege. This is a more difficult submission, but the conclusion is supported by Mansfield J’s decision in Lake Torrens Overlap Proceedings.

152    The first contention of the Jurruru applicant was that the submission of the Sackett Connection Report to the State was a precursor, or a precondition, to the entry into negotiations between the State and the Yinhawangka Part A and Part B applicants, but not part of those negotiations. Reference was made to the WA Determination Guidelines, the submission being that by those Guidelines, the State made it clear it would not enter into negotiations for a consent determination unless there was a connection report submitted to it. For example, cll 1.8, 1.9 and 1.10 of the Guidelines relevantly state:

The Government expects that the information submitted by claimants will consist of an expert report or reports, together with supporting material.

As noted, the evidentiary basis upon which a determination can rest is determined by the Native Title Act and by the case law on native title. Connection reports must therefore have sufficient detail to establish that the native title claimants are the persons or groups who hold native title.

The material provided in a connection report must provide a credible basis for establishing the existence of the native title rights and interests claimed. The provision of sufficient, credible information is necessary to ensure that both native title claimants and respondent parties have confidence in the process and the outcomes it delivers.

153    Senior counsel for the Jurruru applicant also referred to cll 1.7 and 10.7 of the Guidelines, which I also accept are relevant:

There is a responsibility upon the Government to give thorough consideration to the evidentiary basis of the claims made in a native title application before proceeding to negotiate the terms of an agreed determination. The provision of evidentiary material by native title claimants is therefore a necessary precondition to the Government’s participation in consent determination negotiations. These Guidelines are provided to assist those involved in the native title process to understand the basis upon which the Government will enter into such negotiations.

Before making a recommendation to Government as to whether the information submitted (including any direct evidence of Aboriginal people heard before the Federal Court) is sufficient to support a decision to enter into negotiations towards an agreed determination of native title, the Office of Native Title will seek legal advice regarding the evidentiary basis of the claim. The legal advice will consider the connection material submitted by the claimants, any direct Aboriginal evidence heard in relation to the claim and the advice provided by the Government’s appointed expert reviewers.

154    It is clear the State’s policy, demonstrated by the Guidelines, was only to consider agreeing to a consent determination if it was satisfied on proper material of the connection of the claim group to the land and waters subject to the claim under s 61. However, the distinctions made by the Jurruru applicant between any correspondence to the State requesting such consideration, and material such as a connection report attached to or submitted with (or subsequently to) such a communication, is in my opinion too fine a distinction which does not give sufficient weight to the purpose of without prejudice privilege.

155    As the High Court said in Field v Commissioner for Railways for New South Wales [1957] HCA 92; 99 CLR 285 at 291 in particular, to which I refer below, the purpose of without prejudice privilege is to facilitate and encourage the resolution of litigation by parties by not exposing communications that may contain admissions or compromises to be subsequently adduced in evidence (subject to questions of waiver):

The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered.

156    The evidence is slight as to how the Sackett Connection Report was communicated to the State. However, Mr Meegan’s evidence is that it was given to the State “in support of” the Yinhawangka native title claims. The State in its submissions to the Court on the subpoena argument did not disagree with that description, and supported YMAC’s claim to without prejudice privilege. I am prepared to find, especially in the context of the agreed position that the Sackett Connection Report was submitted conformably with the WA Determination Guidelines to which I have referred, that the Sackett Connection Report formed part of the communication on behalf of the Yinhawangka applicants, and the claim groups they represented, to the State for the purpose of proving their claims to native title. Contrary to the Jurruru applicant’s submissions, it was unlikely to have been provided simply as a precursor to any negotiation with the State. Rather, it was likely to have been part of a larger communication from the Yinhawangka applicants to the State, in accordance with the WA Determination Guidelines. However, as I explain below, there is insufficient evidence that the communication was made confidentially so as to bring it within without prejudice privilege.

157    The Jurruru applicant also submitted that the Sackett Connection Report, being an expression of opinion by an independent expert, did not contain anything in the nature of an admission or offer of compromise, and could well have been put to adversarial use, and in this sense was outside the scope of without prejudice privilege. This is a similar argument to the one accepted by Mansfield J in Lake Torrens Overlap Proceedings, and certainly without any more specific evidence about whether there were in fact offers or admissions or confidential statements which if disclosed could cause “embarrassment”, I accept the Jurruru applicant’s submission.

158    The second contention of the Jurruru applicant was that even if the Sackett Connection Report was subject to without prejudice privilege, that privilege would only apply to prevent the report being used in evidence in proceedings between the Yinhawangka and the State, but not to prevent production to the Jurruru applicant in proceedings which did not involve the Yinhawangka applicant, or the Yinhawangka claim group.

159    For this second contention, the Jurruru applicant relied on the decision of Hammerschlag J in Dowling and in particular his Honour’s observations at [35] and [37]-[38], about the need for an assessment of whether there is sufficient connection between two disputes to justify extending without prejudice privilege to the second dispute, and further whether the party who seeks to maintain the protected character of the communication could have had a “legitimate expectation” that protection would extend to different proceedings, with different parties.

160    This argument is also somewhat similar to the reasoning of Mansfield J in Lake Torrens Overlap Proceedings. I accept that on the evidence it should have been within the reasonable contemplation or expectation of the Yinhawangka applicants, and the State, that the Sackett Connection Report might be used in proceedings related to other land and waters. That is because, at the time the Yinhawangka applicants were negotiating with the State (from 2011 onwards), it was well-known that the GMY claim remained on foot, and that a group comprising people who were also in the Yinhawangka claim group were pursuing a claim to native title over different land and waters, but on a basis which at least in part stemmed from their adherence to Yinhawangka traditional law and custom.

161    Further, the WA Determination Guidelines contemplate expressly that any connection report submitted will need to be filed with the Court. The Guidelines use the word “provide” but in my opinion this must be read as filing, so that the report is on the Court record. That is consistent with ensuring the State discloses the basis on which, on behalf of the entire community it represents, it is satisfied native title should be recognised. It is also consistent with ensuring the Court has sufficient material upon which to make a determination, although in saying that I do not mean to suggest it is essential. In any event those eventualities are not consistent with any agreement between the Yinhawangka applicants and the State that the material would not be available for use in the public process of consent determination, nor is it consistent with any agreement that if negotiations broke down, the Sackett Connection Report could not be relied upon by either party in any subsequent litigation, whether over the land and waters the subject of Yinhawangka Parts A and B, or other land and waters claimed by Yinhawangka People, or some Yinhawangka People. In other words, the confidentiality necessary for the privilege to attach is missing.

162    Dr Sackett’s own retainer contemplated other uses or disclosure of the report could occur, as the Jurruru applicant emphasised in support of its contentions concerning the non-existence of without prejudice privilege. So did the WA Determination Guidelines. No agreement can be inferred between the Yinhawangka applicants and the State that the report would remain confidential and be used only for the purposes of confidential negotiations for this specific determination of native title. Its purposes – actual and potential were broader than that. For example, if the State saw material in the report relevant to its position on any overlap issue, it must have been within the reasonable contemplation of both parties that the State would be able to refer to that material, and seek advice on it, including briefing its own experts with it.

163    Therefore, the Jurruru applicant’s second submission regarding the non-existence of without prejudice privilege in the Sackett Connection Report should be accepted.

Waiver of legal professional privilege

164    In DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499, Allsop J (as his Honour then was) embarked on a thorough review of the applicable principles to an allegation of waiver of legal professional privilege. His Honour did so in the context of Mann v Carnell having been decided around three years prior, and there being some arguments about the extent to which his Honour sitting as a single judge of this Court was bound by authorities of the Full Court of this Court which might be seen as giving a broader operation to the concept of implied waiver than that given by the High Court in Mann v Carnell. The debates about precedent which troubled his Honour need not be repeated here.

165    The aspect of Allsop J’s analysis which I wish to emphasise, and with which I respectfully agree, is that the fundamental explanation for an implied waiver is that it is the inconsistency between an act by the holder of the privilege and the confidentiality of the communication between lawyer and client which destroys the privilege: see DSE at [95], and Mann v Carnell at [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). His Honour pointed out, at [98], by indicating his agreement with observations of Heerey J in Equuscorp Pty Ltd v Kamisha Corp Ltd [1999] FCA 681; ATPR 41–697, that broader notions of unfairness are not the touchstone: there is no “balancing exercise”. Privilege “trumps” relevance, unless it is inconsistent (and for that reason unfair) for the holder of the privilege to continue to maintain it, because of the conduct of the holder of the privilege. See also Von Stieglitz v Comcare [2014] FCAFC 97; 64 AAR 356 at [42] and Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117 at [24]-[29].

166    Thus, in my opinion it is a relatively straightforward proposition, and not disputed by any party other than YMAC, that if contrary to my opinion legal professional privilege was held in the Sackett Connection Report, it was waived by the provision of the report to the State. On the need for confidentiality if a person seeks to maintain a claim of legal professional privilege, in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; 174 FCR 547 at [37], the Full Court said:

In our view, whatever is the extent of confidentiality arising from litigation privilege, one element of confidentiality is essential, namely non-disclosure to one’s opponent.

167    On the hypothesis that legal professional privilege did attach (which I have rejected), then the act of the Yinhawangka applicants, through their solicitor at YMAC, in providing the Sackett Connection Report to the State, was inconsistent with a maintenance of the confidentiality previously attaching to the report. On this hypothesis, it was an expert opinion on connection sought from Dr Sackett for the purpose of advancing the Yinhawangka native title claims in the existing proceedings, and for the purpose of providing legal advice to the Yinhawangka applicants, and through those applicants, to the Yinhawangka claim groups about their prospects, and what additional evidence might be required to establish connection. As I note below, the State was the principal contradictor in the Yinhawangka native title claims, and the act of disclosure to the State by the Yinhawangka applicants of their key expert opinion on connection destroyed any confidentiality which had previously attached to the communication of Dr Sackett’s opinion to the Yinhawangka applicants by the solicitor acting for the Yinhawangka applicants in the Yinhawangka native title proceedings.

168    YMAC submits otherwise, on a basis which is, with respect, difficult to follow. This is one point at which YMAC departed from the position it had signed up to in the statement of issues. YMAC now appears to contend that because the Sackett Connection Report was submitted in confidence to the State, it is not relevantly inconsistent for the holder of legal professional privilege to seek to maintain it. It will be recalled that YMAC initially contended the privilege holders were the Innawonga, IB and GMY applicants but then said it was the actual claim group members.

169    Even without returning to the question of who holds the privilege, YMAC’s submission can be rejected. The State was a respondent to the Yinhawangka Part A and Part B proceedings. Indeed, it is the main and usual contradictor in native title proceedings. Its interests in that sense are distinct from, and not necessarily consistent with, the interests to be advanced on behalf of the Yinhawangka applicants and claim group members. In disclosing the nature and content of an expert anthropologist’s independent opinion about the connection of the Yinhawangka claim group members to the land and waters which were the subject of the Yinhawangka Part A and Part B proceedings, the Yinhawangka applicants were electing to disclose an important aspect of the nature of their case to the principal potential contradictor. It would indeed be inconsistent to allow the continued maintenance of any confidentiality in the communications between Dr Sackett and the Yinhawangka applicants (through their lawyer at YMAC) in those circumstances.

Waiver of without prejudice privilege

170    I have concluded above that without prejudice privilege did not attach to the Sackett Connection Report, despite its submission to the State in the context of a proposed consent determination process.

171    In that circumstance, the question of waiver does not arise.

172    If, contrary to my findings, without prejudice privilege did attach to the Sackett Connection Report, I would have found there had been no waiver. Consistently with my conclusions at [122] above in respect of legal professional privilege, if without prejudice privilege attached, the holder would have been the Yinhawangka applicants, and subsequently the Yinhawangka PBC. Neither the Yinhawangka applicants, nor the Yinhawangka PBC have engaged in any conduct that would render it inconsistent for them to maintain a claim of without prejudice privilege (if one could be maintained). They have not appeared in this proceeding. They were not involved in the November 2018 exchanges of other pre-existing reports. Their instructions were apparently not sought by YMAC as “custodian” on this application.

Sackett Overlap Report

Factual findings

173    There is less evidence before the Court about the creation of this report. Mr Meegan’s evidence is:

In the course of reviewing the drafts of the Sackett Connection Report, YMAC required further information from Dr Sackett to address the part of the connection brief relating to the western portion of the GMY claim including the area of overlap with the Jurruru claim group.

In February 2010, YMAC instructed Dr Sackett to prepare the Sackett Overlap Report.

In October 2010, Dr Sackett provided the Sackett Overlap Report. It was not provided to either the Yinhawangka or the GMY claim groups or the State. Neither the Jurruru claim group or the GMY claim group were involved in the commissioning of the Sackett Overlap Report.

174    As I have noted earlier, there is in an annexure to Mr Cummins’ affidavit read by the Yinhawangka Gobawarrah applicant on this interlocutory application an email from Dr Sackett himself to Judicial Registrar McGregor, in the course of her undertaking some case management around the status of the various anthropological reports, and who was prepared to provide what to whom, and on what terms. In that email Dr Sackett indicated that he provided the Sackett Overlap Report to YMAC on 20 October 2010, the same day he provided YMAC with the Sackett Connection Report. As with the Connection Report (see [114] above), I find the Sackett Overlap Report was created or produced around 20 October 2010.

175    The last sentence of Mr Meegan’s evidence which I have extracted above is consistent with the evidence of Mr Roy Tommy. Mr Tommy is a member of the applicant in the Yinhawangka Gobawarrah claim. He was also a member of the applicant in the GMY claim. I note here that the GMY claim was eventually dismissed, but not until 2016. It was followed, on 17 October 2016, by the filing of the Yinhawangka Gobawarrah claim. Although the members of the applicants in the GMY claim and the Yinhawangka Gobawarrah claim are not identical, some individuals were members of the applicant in both claims. Mr Tommy was also a member of the applicant in the Yinhawangka Part A and Part B claims.

176    Mr Tommy’s evidence is that he did not know that YMAC had asked Dr Sackett to prepare the Sackett Overlap Report, and that to his knowledge no YMAC lawyer or staff member informed the Yinhawangka applicants or GMY applicant about this, or discussed it with the relevant claim group members. He deposed that he has never seen the Sackett Connection Report, or the Sackett Overlap Report.

177    The timing of YMAC’s instructions to Dr Sackett to prepare the Sackett Overlap Report (February 2010) suggests that someone within YMAC decided to request this report during the process of Dr Sackett preparing what became the Sackett Connection Report.

178    It was not until the end of September 2010 that YMAC briefed Dr Kenny to commence research on the GMY/Jurruru overlap. This was around the same time that the new Yinhawangka Part A and Part B claims were being prepared and filed.

179    As Dr Kenny’s instructions reveal (see Schedule 2 of the retainer at Annexure “MM3” of Mr Meegan’s affidavit), by this time the GMY applicant had “pulled back” its claim out of the area to be claimed by the Yinhawangka People (in their Part A and Part B claims). While this judgment was reserved, the Court asked YMAC to provide the map sent to Dr Kenny as part of her retainer, but which did not form part of the document annexed to Mr Meegan’s affidavit, for some unexplained reason. YMAC informed the Court it could not locate the map. It is therefore uncertain whether by the time Dr Kenny was retained, what is described in her retainer as the “area of overlap between the GMY and JUR claims and an area currently only claimed by the GMY native title claim but over which the JUR assert native title rights” is the same area of land and waters which is, in these separate question proceedings, generally described as the “Overlap Area”. That may be the case, but the Court cannot be sure.

180    Confusingly Dr Kenny’s retainer is unclear about which reports from Dr Sackett were provided to her. The retainer (see page 2 of Schedule 2) refers to the “Innawonga/GMY connection report written by Dr. Lee Sackett and which is intended to be submitted to the State in 2010”. It is clear from other passages in Schedule 2 that whatever was being provided to Dr Kenny was not the same document that was provided to YMAC on 20 October 2010 by Dr Sackett. Schedule 2 is written, on its face, at an earlier point in time, and the retainer was signed by Mr Meegan on 24 September 2010. The YMAC chronology contends the brief was issued to Dr Kenny on 24 September 2010.

181    Therefore, it must be the case that an earlier version of Dr Sackett’s Connection Report is what was at least initially provided to Dr Kenny. However, the evidence and YMAC’s submissions suggest she was provided, subsequently, with further documents written by Dr Sackett.

182    Dr Kenny provided the report which was the subject of this retainer to YMAC on 9 December 2010: see [31] of Mr Meegan’s affidavit and the YMAC chronology.

183    Between 24 September 2010 and 9 December 2010, it appears, and I find, that Dr Kenny was provided with more material written by Dr Sackett. The best evidence for this finding is in Mr Cummins’ affidavit, in Annexure AC48 to his affidavit. Remarkably, Mr Meegan gives no evidence about this critical fact. It is yet another example of the deficiencies in his evidence on this application, especially given YMAC bore the onus of proof.

184    Annexure “AC48 is a letter from Mr Cummins to Mr Meegan, dated 21 March 2019. It is correspondence about the request for access to Dr Sackett’s reports by the Jurruru applicant. Mr Cummins in fact refers to three reports by Dr Sackett in this letter, including an earlier report from 2008. That 2008 report is not the subject of the subpoena. In this correspondence, Mr Cummins defines what he means when he refers, later in his letter, to the “Sackett Reports”. He defines that term as including the 2008 report, the Sackett Connection Report, and the Sackett Overlap Report. Relevantly, Mr Cummins states:

In her [2010] report Dr Kenny indicates that she received the Sackett Reports, she lists the Sackett Reports in the ‘Cited References’ and she makes a number of specific references to the Sackett Reports in the main body of the report[.]

185    This is consistent with the contention made on behalf of YMAC during oral argument:

HER HONOUR: Well, what’s the evidence – because now that you’ve drawn attention to the fact which I sort of – I suppose I hadn’t – there’s many things I haven’t appreciated but I hadn’t appreciated the timing for Dr Sackett’s connection report which is you say late 2011 and I thought the overlap report came after that but maybe it doesn’t.

MR WRIGHT: No.

HER HONOUR: What’s the evidence about when the overlap report was - - -

MR McKENNA: They’re both referred to in Kenny 2010.

186    Although the evidence is (again) very unclear, given the context in which Dr Kenny was being asked to prepare her report in 2010, and the proximity in time of Dr Sackett submitting his reports to YMAC, their relevance to Dr Kenny’s task, and taking into account Mr Cummins’ evidence, I am prepared to infer, and find, that Dr Kenny was provided by YMAC, at some stage between 24 September 2010 and 9 December 2010, with the Sackett Connection Report, as well as the Sackett Overlap Report (that is, the documents subject to the subpoena).

187    Based on the evidence of Mr Cummins, I also find that Dr Kenny referred to both the Sackett Connection Report (that is, the document subject to the subpoena), as well as the Sackett Overlap Report, in her report provided to YMAC on 9 December 2010.

188    There was some debate in written and oral submissions whether Dr Kenny referred to both reports in her 2011 report, that being the one which was initially also subject to a subpoena but was released at the hearing: see [15] above. Whether or not that report refers to both of Dr Sackett’s reports is now immaterial, given the finding I have made at [187] above.

189    Mr Meegan deposes that the Sackett Overlap Report was never provided to the Yinhawangka or GMY claim groups, or to the State. That apparently includes the “clients” for whom it was prepared, on YMAC’s arguments.

Legal professional privilege

190    At the interlocutory hearing, YMAC submitted the Sackett Overlap Report is subject to legal professional privilege, and that the privilege was held by the three groups named in Dr Sackett’s retainer in 2010: the Innawonga, the IB and the GMY. As I have noted, YMAC then appeared to contend the privilege was not held by each of the applicants in those three proceedings, but by the members of those claim groups, without explaining how any decisions about that privilege could or would be made.

191    At one point YMAC also seemed to maintain, and indeed appeared to assert in correspondence to the solicitor acting for the Yinhawangka Gobawarrah applicant, that the privilege is held by the Yinhawangka People: see [13] of Mr Cummins’ affidavit.

192    In a third variation, in its supplementary written submissions, YMAC contended legal professional privilege is held by “the members of the former Innawonga, GMY claim groups and Yinhawangka members of the former Innawonga Bunjima claim group (who are now determined Yinhawangka common law holders)”.

193    One puzzling factual aspect of the position(s) adopted by YMAC is that, first, it accepted that the Sackett Overlap Report had never been provided to any of the three sets of original applicants, nor to the claim groups they represented. Second, it accepted (at least implicitly) the Sackett Overlap Report had not been provided to the Yinhawangka applicants, or the claim groups they represented, or the Yinhawangka common law holders, or the Yinhawangka PBC. Third, it accepted the Sackett Overlap Report had not been provided to the Yinhawangka Gobawarrah applicant, or to the Yinhawangka Gobawarrah claim group. Indeed, it did not dispute the submissions made by counsel for the Yinhawangka Gobawarrah that YMAC had refused access to the Sackett Overlap Report (and the Sackett Connection Report) by the GMY, despite now maintaining that the Yinhawangka Gobawarrah claim group (as the successor to GMY so far as YMAC were concerned) were one of the “clients” in whom legal professional privilege reposed.

194    YMAC’s refusal to provide the report was established by evidence from Mr Cummins. He specifically asked on behalf of the GMY for access to the Sackett reports. On 26 November 2015 Mr Cummins wrote to Mr Meegan and asked for:

Anthropological reports held by YMAC in relation to the Yinhawangka Part A and Part B claims, including reports of Dr Sackett.

195    At the stage of this request, as I infer Mr Meegan well understood, there were two reports by Dr Sackett, including the Sackett Overlap Report.

196    Further, Mr Cummins wrote in one of his letters to Mr Meegan which is annexed to his affidavit:

Mr Tommy informs me that he was himself denied access to the Sackett Reports in his capacity as a Yinhawangka applicant and a GMY applicant respectively.

197    In other words, YMAC positively accepted that none of the groups it contended were the “clients” of the YMAC lawyers for the purposes of legal professional privilege had been given access to the Sackett Overlap Report, and neither did it appear to accept they could or should have been given access. Whether this goes back to what Mr McKenna described as the “massive undertaking” in seeking instructions from an entire claim group (which seems to be one scenario for what YMAC asserts needs to happen), or some other unstated assumptions about what YMAC as a representative body is entitled to do with reports its lawyers commission for clients but for which YMAC pays, remains very unclear. It seems to me this is an extraordinary position, that no “client” said to hold legal professional privilege has been shown the report and some have been positively refused access; and none of this conduct is occurring on any instructions from any other “clients”, rather on the unilateral decision of a YMAC lawyer, or others within YMAC (that is also unclear).

198    Of course it may in no sense be practical or realistic to obtain consent from an applicant of discontinued native title proceedings, or from the claim group that applicant represented. YMAC’s lawyer seemed at one point in his oral submissions to acknowledge this, and yet continued to maintain this was where the privilege lay on the one hand, yet on the other hand to also recognise that no YMAC lawyer appears to have asked any “client” for permission to give the Sackett Overlap Report to a distinct subset of its “clients”. The absence of evidence about how decisions were made by YMAC about the agreement to exchange the Kenny and Palmer material does nothing but muddy the waters even further.

199    In my opinion the Jurruru applicant is correct to contend there is no legal professional privilege in the Sackett Overlap Report.

200    The Jurruru #1 native title claim, which included a large portion of the overlap area, was filed in July 2000. The Jurruru #2 claim was not filed until 22 November 2012, and covers locations in the eastern part of the overlap area, including Jabaguru. It should be recalled that the Yinhawangka Gobawarrah claim was not filed until 2016.

201    There is no evidence that the Sackett Overlap Report was created (around 20 October 2010) for the dominant purpose of use in any particular legal proceeding, which, at the time it was created, could only have been the Jurruru and/or GMY proceedings. Only one of the two Yinhawangka proceedings was on foot at this stage, and then in the following 12 months both Yinhawangka proceedings appear to have been on a track towards a proposed consent determination. There is no evidence of any advice given to the Yinhawangka People at or around October 2010 in which the Sackett Overlap Report was used or deployed. Mr Meegan deposes to nothing of this sort. The Overlap Report was of no relevance to the determination of the Yinhawangka Part A and Part B claims, as it dealt with different land and waters.

202    Further, on Mr Meegan’s evidence, YMAC ceased acting for the GMY claim group in May 2011, their retainer having been terminated on 1 March 2011. There is no basis for any inference that the Sackett Overlap Report was commissioned at the request, or even with the knowledge or agreement, of the GMY applicant or claim group. Indeed, Mr Meegan says as much in his affidavit at [23]. There is no basis to infer the report was proposed to be used in the GMY proceeding, which, as I have noted, remained on foot until 2016, especially since it is apparent the GMY applicant had no access to it.

203    The clear evidence of no “client” being involved also supports the inference that some unidentified person within YMAC commissioned this report for other, unspecified purposes. Mr Meegan’s evidence is too general to be probative of any purpose which can support a claim of legal professional privilege, let alone identify a dominant purpose.

204    Nor is there any evidence that the Sackett Overlap Report was created for the dominant purpose of providing legal advice to any client. No client appears to have been told about its contents. YMAC omitted to tell an individual claim group member (Mr Tommy), one of YMAC’s lawyers purported (individual) clients, about its existence, and more recently appears to have refused to disclose its contents to him. It has also refused to give the report to the “successor” applicant to the GMY applicant, even though that applicant represents, so far as YMAC contends, some of the very claim group members which are the clients of the relevant YMAC lawyer at the relevant time. I do not see how these positions could be consistent with the report’s creation being for the dominant purpose of providing legal advice (in the few months before YMAC ceased to act for the GMY).

205    Accordingly, I find no legal professional privilege attaches to the Sackett Overlap Report. YMAC bore the onus of proving that privilege existed and it has not discharged that onus.

206    If I had determined the Sackett Overlap Report was subject to legal professional privilege, then consistently with the views I have expressed above, if its dominant purpose was for use in legal proceedings, the privilege would in my opinion have been held by the relevant applicant for a determination of native title.

207    Accordingly if, contrary to my opinion, legal professional privilege existed in late 2010, it would have been held by the now defunct GMY applicant, because, it would seem, the report grew out of work done by Dr Sackett with the Yinhawangka People. Mr Meegan’s evidence does not explain how this report could have had any relevance to the two Yinhawangka native title proceedings, which did not relate to that area of land and waters. However, it clearly did relate to the area of land and waters over which the GMY claim was made, as the title of the Overlap Report itself discloses. There is no evidence about what arrangements were made as between YMAC and Cross Country Native Title Services for any handover of files for the GMY claim, but one fact which is abundantly clear and can be confidently found is that in whatever handover occurred, the Sackett Overlap Report was not passed onto Cross Country Native Title Services as the new legal representatives for the GMY. As I have found above, in November 2015, Mr Cummins asked for the “reports of Dr Sackett” on behalf of the GMY applicant, and they were denied to him.

208    In those circumstances, and if, contrary to my opinion, I had found legal professional privilege in the Sackett Overlap Report existed, and was held by the GMY applicant, I would have found it remained with the GMY applicant after the YMAC solicitor who was acting for the GMY (whoever that was) ceased to act in either March 2011 or May 2011. For a period of time thereafter, it appears on the evidence that the GMY applicant may not have been legally represented again, until around 2015, when Mr Cummins commenced acting for it. However, the privilege is held by the client, not the lawyer, so would have continued to exist despite the fact it appears the GMY applicant did not have possession of the Sackett reports (and may not have even known about the Overlap Report, on Mr Tommy’s evidence).

209    If this is correct, then the Sackett Overlap Report could have been handed over to the Yinhawangka Gobawarrah applicant (as the successor to the GMY applicant) on the same basis that YMAC has now agreed the 2011 Kenny report can be given to the Jurruru applicant. Namely, that it was in effect being given to the “client”. The most bizarre aspect of this entire tangle is that now the Yinhawangka Gobawarrah applicant asserts it does not “want” the Sackett Overlap Report, and supported YMAC’s objections to production of this and the Sackett Connection Report.

Without prejudice privilege

210    YMAC also contends the Sackett Overlap Report is subject to without prejudice privilege. At the hearing it appeared to contend this privilege is held by each of the GMY and Jurruru applicants as the relevant parties to the putative negotiations. That is, held by different clients to those whom YMAC asserted held legal professional privilege in the same document: another confusion in its submissions which was difficult to untangle. Also somewhat puzzlingly, it is one of those “clients” which seeks its production, on the basis it otherwise does not have access to it. The notion that a party in whose favour an expert report has been commissioned for the purpose of resolving or settling a dispute with another party is unable to see the expert report is a proposition which so far as I understand is unsupported by authority, and contrary to the basic principle about the circumstances in which such a privilege arises. YMAC’s position as stated in the statement of issues was that the privilege could be asserted “by the GMY (now the YG) and Jurruru native title claim groups”.

211    However, in its supplementary written submissions, YMAC now submits that the relevant holders of without prejudice privilege in the Sackett Overlap Report are “at least the members of the former GMY claim group”. It is unclear what YMAC now says about the Jurruru People, and it is unclear why YMAC has changed its position to exclude the Jurruru People from asserting the privilege it formerly contended they also held.

212    Yet, logically, YMAC’s position may lead to precisely the proposition it put during the hearing. In some circumstances, without prejudice privilege may be a joint privilege between two negotiating parties. YMAC’s earlier submissions appeared to recognise that in relation to the overlap area, the negotiating parties were the GMY and the Jurruru, and the Sackett Overlap Report was not, in fact, commissioned by either of them, but by YMAC. It is difficult to see how only one of the two parties could assert without prejudice privilege in these circumstances.

213    In the statement of issues, the position of the Yinhawangka Gobawarrah applicant was recorded to be that the relevant holder of without prejudice privilege in the Sackett Overlap Report was the “GMY (now the YG)”. This was also the position briefly put by counsel for the Yinhawangka Gobawarrah applicant in oral submissions. No substantially separate or different submissions were developed on behalf of the Yinhawangka Gobawarrah applicant on this point at the interlocutory hearing. In supplementary written submissions, the Yinhawangka Gobawarrah applicant appears to agree with and adopt the latest position of YMAC regarding the identity of the holders of without prejudice privilege in the Sackett Overlap Report (at [1]). There is no concession by the Yinhawangka Gobawarrah applicant that the privilege in this report is held also by the Jurruru.

214    To confuse and complicate the issues further (if that is possible), as I have observed earlier, during oral submissions, counsel for the Yinhawangka Gobawarrah applicant appeared to suggest she now has instructions that her client would not like to see the Sackett Overlap Report. That is notwithstanding the Yinhawangka Gobawarrah applicant and YMAC appear to be in furious agreement – now – that the Yinhawangka Gobawarrah could see it because the Yinhawangka Gobawarrah People are the “client”, on their shared view. In my opinion, the contention of the Yinhawangka Gobawarrah that they do not want to see the report does not take any further the question of whether either of the two asserted privileges in the Sackett Overlap Report ever existed, or continue to exist, nor does it take the question of waiver any further. It is simply a forensic and tactical position now adopted by a party to the separate question proceedings.

215    There were many times during argument on these matters where what really appeared to be asserted was that YMAC as a representative body, rather than any individual solicitor as the legal representative for a native title applicant or a prescribed body corporate, had some unilateral role, and some unilateral control, over expert reports which it had commissioned and funded. Yet no such submission was ever directly advanced on YMAC’s behalf, and the two privileges on which YMAC has relied both involve there being another “client”, or a party to a proceeding, which is the holder of the privilege.

216    Whoever the holder is, YMAC’s claim of without prejudice privilege appears to be based on what was done with the Sackett Overlap Report in terms of its provision to Dr Kenny in 2010 as part of what YMAC referred to as a “mediation process”, or an “early neutral evaluation process”. Other than this, the evidence is tolerably clear the Sackett Overlap Report has never been provided or communicated to anyone outside YMAC.

217    YMAC contends that by 2011 when Dr Kenny was retained to prepare her second report (about only the Jurruru claim to the overlap area), both Sackett reports were given to her as part of the process of trying to settle the overlap issue and, that at least from that date onwards, both Sackett reports attracted without prejudice privilege. This included the Sackett Overlap Report. Dr Kenny’s role was said by the lawyer representing YMAC to be analogous to that of a mediator or an early neutral evaluator. Therefore, YMAC’s argument goes, communications between YMAC solicitors (as lawyers for the GMY applicant) and Dr Kenny were communications for the purpose of resolving or settling the overlap issue between existing proceedings, namely the Jurruru #1 claim and the (then) GMY claim, over the land and waters within the overlap area. Those communications, and any protection enjoyed by them, extend to the material provided to Dr Kenny, so it is said.

218    I do not accept YMAC has proven, on the balance of probabilities, that the Sackett Overlap Report is subject to without prejudice privilege, for the following reasons:

(a)    YMAC’s lawyer submitted that, as a matter of fact, the Sackett Overlap Report had been provided to Dr Kenny by YMAC. As I have noted above, the evidence does appear to suggest that Dr Kenny received both reports at some stage between September 2010 and the submission of her first report on 9 December 2010, but likely after 20 October 2010, being the date on which Dr Sackett provided his two reports to YMAC.

(b)    YMAC’s lawyer admitted Dr Kenny does not refer to the Sackett Overlap Report in her 2011 report, although noted she does refer to the Sackett Connection Report. Given the findings I have made about Dr Kenny receiving both reports before the end of 2010, whether or not she refers to the Sackett Overlap Report in her 2011 report about the Jurruru claim, I am satisfied she had the Sackett Overlap Report in her possession prior to 9 December 2010.

(c)    Even though she had both Sackett reports in her possession, I am not persuaded that Dr Kenny’s function in providing her 2010 report was analogous to an early neutral evaluation – if that be a basis for without prejudice privilege (which I do not need to decide).

(d)    First, Mr Meegan’s own evidence is not entirely consistent with the YMAC submission. At [25], Mr Meegan deposes that, at the relevant time, there still being a dispute between the GMY and the Jurruru in relation to the overlap area:

As a result, YMAC in its capacity as NTRB with mediation functions commissioned the a report from Dr Kenny.

(Error in original.)

(e)    This evidence might, at some general level, suggest YMAC considered it was performing a mediation function. It does not suggest Dr Kenny was doing so. There is no further evidence from Mr Meegan about how, if at all, YMAC in fact performed any mediation function it possessed.

(f)    Second, Mr Meegan’s evidence then is (at [26]):

The purpose of briefing Dr Kenny was to:

(a) engage an independent expert to review the available material, including that collected from the Jurruru and GMY stakeholders; and

(b) make a determination on anthropological grounds as to likely finding of connection to that area.

(g)    This is Mr Meegan’s direct evidence about purpose. He was the solicitor who signed off on Dr Kenny’s brief in 2010. This evidence simply does not refer to any mediation or “early neutral evaluation” purpose. The fact that in the next paragraph Mr Meegan deposes to the GMY claim group agreeing to participate in Dr Kenny’s research takes the matter no further. That is evidence of agreement to participate in research; no more.

(h)    Third, when her “overarching joint report” was submitted to YMAC on 9 December 2010, it was not given in its entire form to both the GMY and the Jurruru. Mr Meegan deposes that each party received a redacted copy, with the opposing party’s information redacted. That is, the GMY and the Jurruru could only see their own information, and (I assume) Dr Kenny’s opinions about their information. Provision of a document in that form is not consistent with the performance of some kind of early neutral evaluation or mediation function by Dr Kenny: the whole point of such a function would be to evaluate the strengths and weaknesses of each party’s case, by reference to the material from each party, and for each party to see that evaluation. That is not what occurred.

(i)    Fourth, and in a similar vein, Mr Meegan deposes that “[t]he unredacted overarching report was confidentially retained by YMAC as NTRB and has not been provided to any stakeholder group”. He does not depose to it having been used in any other way. He does not depose to Dr Kenny having conducted any negotiations with each of the GMY and the Jurruru based on her opinion. He does not depose to anyone else conducting any negotiations using Dr Kenny’s report. The absence of such evidence, and the fact Mr Meegan deposes that nobody outside YMAC saw the entire report, suggests it did not form part of any confidential communication made for the purpose of attempting to have the GMY and Jurruru applicants resolve their overlapping claims.

(j)    Nor is there any evidence Dr Kenny’s 2010 report subsequently formed part of communications attempting to resolve the two overlap proceedings. To the contrary, Mr Cummins (who had been the legal representative for the GMY for a little under 12 months prior to the GMY claim being dismissed) did not see the unredacted version of Dr Kenny’s report. He does not depose to it being used in any negotiations. Quite the contrary, it appears he sought access to it to use it against the Jurruru for an adversarial purpose.

(k)    The existence of yet another report by Dr Kenny, specifically about the overlap area and created in May 2011 for the Jurruru #1 applicant, was a fact not known to Mr Cummins until November 2018: see [7] of his affidavit. This is hardly consistent with Dr Kenny’s 2010 report forming part of communications undertaken to resolve the dispute. Rather, Dr Kenny was asked to produce a second, separate report, in what appears to have been an ongoing litigation context: this time, for the Jurruru #1 applicant to use. Yet the Jurruru #1 applicant was not given the report, and had to subpoena it. None of these facts are probative of without prejudice privilege attaching to the 2010 Kenny report (and in some derivative, and tenuous, sense to the Sackett Overlap Report as one of her sources). They are probative of YMAC acting unilaterally, for a purpose which remains completely opaque.

(l)    Further, the express terms of Dr Kenny’s work, as set out in her 2010 retainer, are not consistent with her performing some kind of early neutral evaluation function for the purposes of mediation. The retainer states:

The consultancy work sought from you is to research and write a report, as outlined below, in relation to the area depicted in the map attached as to, inter alia, who holds native title rights and interests in that area. In this regard, while the GMY and JUR claim areas are likely to be a major focus of the work, we also wish to have your opinion on (a) the constitution of any group of persons who hold group rights comprising a native title in the area depicted in the map attached and (b) the full extent of any area in which any such group rights are held by any such group. Your report then may not relate solely to the area depicted in the map or any area the subject of an existing claim, but provide an opinion as to an area which includes, or areas which include, some or all of the area in the map which, in accordance with the ethnographic data, appear to be the subject of one or more native titles held by one or more groups of persons.

(m)    The “we” referred to appears to be YMAC itself. There is no reference at all to Dr Kenny’s report being used in any negotiation or mediation between the parties. There are references to the possibility it might be used in a negotiation with the State. However that did not occur, so there was, in fact, no confidential communication of Dr Kenny’s report (let alone the Sackett Overlap report) to the State for the purpose of negotiating a consent determination in the overlap area.

(n)    Dr Kenny is then instructed her report is “intended to provide an expert opinion which will assist in providing advice to applicants for native title and perhaps ultimately a court in determining (with the consent of other parties or following a trial) in accordance with section 225 of the Native Title Act 1993 (Cth) (NTA) whether or not native title exists…”.

(o)    She is also instructed:

It is possible that a mediated resolution of these native title claims will not be achievable and the matter will have to be determined by trial. We therefore wish the Overlap Report be, as far as possible, in a form where it could be used in the litigation as an expert report to be submitted as evidence.

(p)    As with the content of Dr Sackett’s retainers, these instructions suggest Dr Kenny’s report may well be made available to a court, and therefore to all parties in any proceeding in the court.

(q)    The retainer then makes clear that the GMY and Jurruru claims may eventually be subject to a consent determination negotiation process:

A process and timetable for the mediation of the GMY and JUR native title claims has been agreed with the State and filed with the Federal Court as part of the GMY and JUR Mediation Protocols. In order to resolve these native title claims, it will be necessary to satisfy the States prerequisites for mediation. We need to provide the State with a connection report that satisfies their Guidelines for the Provision of Information in Support of Applications for Determination of Native Title (‘the State's Guidelines’) which are attached.

(Emphasis added.)

(r)    Finally, the retainer expressly states:

You are formally briefed by the Principal Legal Officer of the YMAC and all work performed by you is to be for the purpose of preparing the GMY and JUR native title claims for resolution by consent determination or by litigation if necessary, and providing, to the extent possible, a clear evidentiary basis for the exercise of YMAC’s functions as a representative body under the Native Title Act with respect to this area. We confirm that all your work is to be subject to legal professional privilege.

(Emphasis added.)

(s)    At least three purposes are stated here. Despite the assertion in the last sentence, it is difficult to understand how an expert’s report can be provided to “prepare” the claims of opposing parties (as the GMY and Jurruru were) for resolution, as well as used in negotiation with the State, as well as being used for YMAC’s own purposes, and yet be subject to legal professional privilege.

(t)    The instructions to Dr Kenny in her 2010 retainer reveal there were, in truth, several purposes for retaining Dr Kenny to prepare a report, none of which appeared dominant, and some of which would be inconsistent with any privilege arising. It is difficult to see how there was any intention that her report would necessarily be confidential, and it is even more difficult to understand to whom it might have been seen as confidential.

(u)    Finally, whatever purpose might be attributed to the creation and communication of Dr Kenny’s report to YMAC (and there appear to have been several), the purpose of the communication of the Sackett Overlap Report to Dr Kenny cannot on any reasonable view of the evidence adduced be said:

(i)    to form part of a communication;

(ii)    between the Jurruru and the GMY;

(iii)    for the purpose of the Jurruru and the GMY resolving their dispute about the overlap area.

Waiver of without prejudice privilege

219    All parties, and YMAC, submit that if, contrary to the findings I have made, without prejudice privilege did exist in the Sackett Overlap Report, then it has not been waived. That is, the parties and YMAC contend, there has been no conduct by the GMY or the Yinhawangka Gobawarrah which could constitute an express or implied waiver of the privilege, unlike the situation with the alleged legal professional privilege in the Sackett Connection Report and the provision of the report to the State. The assumption by the parties (including the Jurruru applicant) and YMAC appears to be that since Dr Sackett’s work, from the start of his retainer, had a focus on the Innawonga/Yinhawangka Peoples, neither the Jurruru applicant nor the Jurruru People could be considered the “client” or the “party” for the purposes of any assertion of privilege: see, for example, the Jurruru applicant’s supplementary written submissions at [16].

220    If, contrary to my opinion, without prejudice privilege could and did attach to the Sackett Overlap Report, I would have found it should be treated as impliedly waived. As I have noted above, and again at [234]-[249] below, there were exchanges of a number of pre-existing anthropological reports between the Yinhawangka Gobawarrah and the Jurruru in November 2018, for the purposes of those reports being used in the separate question proceedings. What was exchanged included the Yinhawangka Gobawarrah’s and Jurruru’s different versions of Dr Kenny’s 2010 report, and her accompanying field notes. Those exchanges occurred on the basis of express waivers by all concerned of any privilege in those pre-existing reports.

221    Thus, the parties have all agreed to waive whatever privilege there was in Dr Kenny’s 2010 report, which is – of course – the report that YMAC contends was the actual early neutral evaluation, for which the Sackett Overlap Report was a source (in some unspecified way). If without prejudice privilege – assuming for current purposes against my own findings that it existed – was waived in the principal, lead expert report of Dr Kenny, then it would be inconsistent for any party to seek to maintain the same privilege in one of the sources said to have been consulted by Dr Kenny. It is inconsistent for YMAC to do so (as “custodian”, having agreed to send the Yinhawangka Gobawarrah and the Jurruru all the other pre-existing reports in November 2018) and it would be equally inconsistent for the Yinhawangka Gobawarrah to maintain any privilege (as they apparently wish to).

The Yinhawangka Gobawarrah reply submission about common interest privilege

222    Independently of YMAC, the Yinhawangka Gobawarrah applicant raised a contention about what counsel described as “common interest privilege”, submitting this privilege existed in relation to the Sackett Overlap Report. Counsel relied on Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; 39 NSWLR 601 at 607-610. YMAC did not rely on such an argument.

223    Farrow was a decision concerning legal professional privilege, in the context of an underlying cause of action about a loan agreement made prior to the winding up of a company said to be the debtor. The appellant Farrow commenced proceedings aimed at establishing the directors of the company were jointly and severally liable for the whole of the debt. There were eight documents in the custody of the liquidator of the company which had been created by the company’s solicitors. The documents were made available by the liquidator to Farrow for use in the procurement of an expert accountancy report relevant to the liability of the individual directors. The question was whether Farrow could be restrained by the individual directors from using any information in the documents on the grounds they attracted legal professional privilege, held by the directors. At trial, it was held that the privilege would be available not only to the person who retained the solicitor but also to those who had a common interest with that person or believed on reasonable grounds that the person giving the advice was his or her solicitor”, but the trial judge concluded that there was no evidence the directors ever thought or had reasonable grounds to believe the company’s solicitors were their solicitors. However, the trial judge held they did have “joint privilege” in the documents, which had not been waived. The Court of Appeal decision discusses, amongst other matters, the difference at common law between legal professional privilege held jointly, and legal professional privilege held by those with a common interest.

224    In oral submissions, counsel for the Yinhawangka Gobawarrah appeared to contend that communications made with Dr Sackett regarding his brief to prepare the Sackett Overlap Report, and the report itself, are subject to common interest privilege held at least by YMAC, the GMY applicant and the current Yinhawangka Gobawarrah applicant. Recalling this is dealing with the Overlap Report, the Jurruru applicant or claim group appear to be excluded from this common interest, although at least on one rendition of the position of YMAC, the Sackett Overlap Report was prepared to resolve a dispute between the Jurruru and the GMY, later the Yinhawangka Gobawarrah. Counsel relied on the commonality of membership between the Yinhawangka Gobawarrah and GMY applicants, and referred to three of the members of the current Yinhawangka Gobawarrah applicant having been members of the former GMY applicant. Counsel submitted that in such circumstances:

… my clients, as applicants, they also have that common interest in the proceedings in the GMY case. And that report in relation to the overlap, we submit, is our privilege. And if it’s shared with YMAC, it’s shared, but it can’t be waived by one party alone.

225    In its supplementary written submissions, the Yinhawangka Gobawarrah applicant continued to press its contentions regarding common interest privilege (at [12]-[13]):

If the Court is minded that the three Yinhawangka claim groups together hold the privilege, or with YMAC, then common interest privilege may apply in the circumstances. Common interest privilege arises where parties have a shared or similar interest in the subject of the communication. In this case the communication is the Sackett reports.

Further, joint privilege arises in circumstances where two or more persons join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. In native title the legal adviser is often solicitors employed by representative bodies. The privilege that protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one in severable right. Common interest privilege is not limited to litigation or anticipated litigation and it is not necessary that parties have a common solicitor; Lane v Admedus Regen Pty Limited [2016] FCA 864 at [27]-[30]. A waiver of privilege must be by both or all of the persons in whose benefit the joint or common interest privilege resides: Farrow 608 - 612. It is submitted that unless the privilege is waived by all those who holds it then it remains privileged.

(Footnotes omitted.)

226    Common interest may exist in a species of privilege known to the law, but it is not in itself a separate privilege, as at times the Yinhawangka Gobawarrah applicant’s submissions appeared to suggest. The way a claim of a common interest in a privilege might arise was explained by Giles J in Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279-280, having already referred to a number of authorities:

If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; thus, if one of the parties obtains a letter of advice attracting legal professional privilege and provides it to the other, the other can also claim legal professional privilege. Some remarks in the earlier English cases suggested that the parties must have a common solicitor, but I do not think that is necessary (apart from my view expressed in Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd; see also Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (“The Good Luck”) and Rank Film Distributors Ltd v ENT Ltd). If Capital Television Holdings Ltd and ANZ had the requisite common interest, then (subject only to any significance in ANZ’s failure to claim legal professional privilege) the copy of the letter of advice in the hands of ANZ B would be privileged and, as already indicated, there would be no waiver of the privilege attached to the letter of advice in the hands of Capital Television Holdings Ltd.

227    This argument could only assist if I had found there to be, relevantly, legal professional privilege or without prejudice privilege in the Sackett Overlap Report. I have found neither privilege was attached to the Sackett Overlap Report.

228    Further, the cases which discuss this concept, including Farrow, pertain to circumstances where those with a common interest in the privilege are involved at the time the document containing legal advice is created, or at the time the communications giving rise to without prejudice privilege are made. That is not the case here: Yinhawangka Gobawarrah is a successor claim group to GMY. The Yinhawangka Gobawarrah applicant was not involved in the creation of the Sackett Overlap Report. Neither was the GMY applicant. Neither were the individual claim group members of either claim. There is no factual basis for this argument, even assuming in favour of the Yinhawangka Gobawarrah they can make an argument resisting a subpoena where the resisting party does not object on the basis of common interest privilege, although it could have.

229    In its supplementary written submissions, the Yinhawangka Gobawarrah applicant also advanced a submission, based on Griffiths J’s decision in Pappin, that YMAC itself, as a representative body, held privilege in the Sackett reports. As I have noted, YMAC did not advance any such submission, and Mr Meegan’s evidence did not seek to address or support any such contention. It is YMAC which has possession of the reports and is answering the subpoena: it is a matter for it to prove the basis on which it resists production. It has done so by relying on two privileges which it contends reside not with itself, but as between its lawyers and various clients”. That is the basis on which its objection will be determined. Aside from YMAC not raising this as an argument, there is no evidentiary basis for it in any event.

The position of the Yinhawangka Aboriginal Corporation

230    In his affidavit at [11], Mr Cummins deposes:

On 1 March 2019 I became aware, via an email from Judicial Registrar McGregor, that the legal representative of the Yinhawangka Aboriginal Corporation (the Prescribed Body Corporate for the Yinhawangka common law native title holders) had raised objections to the provision of the reports of Dr Sackett that are now subject to subpoena (Sackett Reports). Annexed and marked “AC47 is a true copy of this email.

(Original emphasis.)

231    Mr Roy Tommy also deposes to his position, as a director of the YAC:

YMAC has never provided either the Sackett Overlap Report or the Yinhawangka Connection Report (together, the Sackett Reports) to the Yinhawangka Part and Part B applicants / claim group, the GMY applicant / claim group, YAC, the Yinhawangka common law native title holders or the YG applicant. I have never seen the Sackett Reports.

(Original emphasis.)

232    However, there is no direct evidence about the position of the YAC. The Court cannot speculate or assume whether its directors, as a group, or voting as a majority (or whatever process the Corporation’s rules prescribe) have adopted a firm position on the production of the Sackett reports, in the context of their production for use in the separate question proceedings. YMAC rejects (at least in its supplementary written submissions) the proposition that a prescribed body corporate can be a privilege holder, although the Jurruru applicant and the State accept that if privilege exists in either Sackett report, it resides with the YAC.

233    Accordingly, there is no evidentiary basis on which the Court can take into account any asserted fact about the position of the YAC as a whole, as opposed to Mr Tommy’s view as an individual director. Mr Tommy’s view as an individual director is not probative of the Corporation’s position. There was also no appearance for the YAC at the interlocutory hearing. There is an evidentiary gap. That does not assist YMAC’s task of proof.

Other express waivers and their effects on the Sackett Overlap Report

234    What I say in this section of my reasons applies principally to the Sackett Overlap Report. That is because on the evidence (and really one need go no further than its title) this report is likely to be of material importance to the Court in understanding the various expert opinions about who, if anyone, holds native title rights and interests in the overlap area. The importance of the Sackett Connection Report is less clear. However, I do not discount that what I say below could be applied to the Sackett Connection Report as well.

235    One of the curious features of the parties’ arguments on this application, and of YMAC’s position, relates to the fate of other pre-existing anthropological reports relevant to the overlap area. The affidavit of Mr Young at [6]-[16] sets out the circumstances leading up to, and concerning, the exchange of that material, and annexes the relevant correspondence between the parties. I note that Mr Cummins also refers to this exchange of material at [6] of his affidavit.

236    Mr Young deposes that a notice to produce was served by the Yinhawangka Gobawarrah applicant on the Jurruru applicant on 12 November 2018, seeking production of “various reports produced by Dr Kingsley Palmer”. I pause here to note, and find, that this exchange began with the Yinhawangka Gobawarrah applicant – or claim group, it matters not for this purpose seeking pre-existing anthropological reports relevant to the dispute about the overlap area, and it appeared to recognise those reports could be the subject of a claim for privilege by the Jurruru. That is, for its own forensic purposes in advancing the Yinhawangka Gobawarrah claim to the overlap area, the Yinhawangka Gobawarrah applicant/claim group initiated and actively pursued access to pre-existing anthropological reports held by the opposing party, so that the Yinhawangka Gobawarrah could make use of those reports.

237    Mr Young’s evidence is that, in order to avoid litigation, and as a result of a “mutual waiver of without prejudice privilege” by the Yinhawangka Gobawarrah applicant, the Jurruru applicant and the State, the parties agreed to the exchange of the following material on 21-22 November 2018 (at [13], [15] and [16]):

On 21 November 2018, I emailed Mr Cummins, attaching copies of the following documents:

(a)    notes of Dr Kenny’s field research with Jurruru between 31 October and 6 November 2010;

(b)    a redacted joint report for Jurruru and GMY, dated 9 December 2010;

(c)    a subsequent brief for Dr Kenny to prepare a report for Jurruru, undated but appearing to have been prepared on or about 28 April 2011; and

(d)    Dr Kenny’s separate report for Jurruru, dated 27 May 2011.

Attached to this affidavit and marked GY9 is a true copy of my email of 21 November 2018.

On 21 November 2018, Mr Cummins emailed me, attaching three Dr Kenny documents and requesting that I email the Palmer reports. Attached to this affidavit and marked GY11 is a true and correct copy of Mr Cummins’ email of 21 November 2018.

On 22 November 2018, I emailed Mr Cummins, attaching the following Dr Palmer materials:

(a)    Palmer 2007 connection report, with appendices;

(b)    Palmer 2008 overlap report; and

(c)    Palmer consolidated field notes.

Attached to this affidavit and marked GY12 is a true and correct copy of my email dated 22 November 2018.

238    The “three Dr Kenny documents” provided by Mr Cummins to Mr Young on 21 November 2018, and contained in the attachments to the email correspondence in Annexure “GY11”, were identified in the list of attachments as:

(a)    101209 Kenny overlap Report Jur-GMY for GMY lawyer;

(b)    Kenny field report Nov 2010; and

(c)    YMAC brief to Kenny.

239    The document in (a) above must be the 2010 Kenny report, as redacted for the GMY applicant. It should be made clear that the Court accepts this evidence at face value: that is, that each of the Jurruru applicant, the Yinhawangka Gobawarrah applicant and the State asserted without prejudice privilege in these “connection materials” (as Mr Young described them), and mutually agreed to waive it. The Court does not, by accepting that evidence, accept that any of the documents exchanged were as a matter of law and fact subject to without prejudice privilege.

240    Critically, Mr Young’s correspondence to Mr Cummins on 19 November 2018 (at Annexure “GY4”) states:

However in order to avoid the time and cost of litigation in relation to your client’s notice, and to ensure Dr. McGrath and Dr. Vachon have access to all relevant information, the Second and Third Applicants propose that the First, Second and Third Applicants and the State jointly consent to both experts being provided with all the connection material in relation to the Jurruru, GMY and Yinhawangka claims, and that without prejudice privilege be waived by all parties in relation to all that material.

(Emphasis added.)

241    In his affidavit, Mr Cummins does not directly dispute that these were the purposes and the terms of the agreement. He does depose that he was not aware of the 2011 Kenny report when this agreement was made. In my opinion, that is irrelevant. As is now common ground, privilege in that report (if it existed) was held by the Jurruru applicant.

242    Obviously, Mr Cummins also did not physically have a copy of the Sackett Overlap Report to exchange, nor did the Jurruru.

243    Nevertheless, I accept the Jurruru applicant’s submission that the intention was to waive privilege in all relevant connection materials.

244    If it had been necessary to do so to resolve YMAC’s objections, I would have been prepared to find that any privilege which did exist in the Sackett Overlap Report had been impliedly waived by the conduct of the Yinhawangka Gobawarrah applicant and the Jurruru applicant, with the assistance of the State, in exchanging and permitting access to these other pre-existing anthropological reports, at least two of which are of the same character as the Sackett Overlap Report: namely Dr Palmer’s 2008 overlap report, and Dr Kenny’s 2010 overlap report. Both reports deal with the area of land and waters that is the subject of the separate question. Both were prepared, as far as I can tell, in circumstances that were not substantively different from those under which the Sackett Overlap Report was prepared, and both were prepared under retainer arrangements from YMAC.

245    It would be inconsistent, and unfair, to allow YMAC (and more critically whichever client it purports to represent in making this objection) to maintain an objection based on legal professional privilege or without prejudice privilege to production of the Sackett Overlap Report in these circumstances, where it has not opposed, and indeed appears to have facilitated and agreed to, the exchange and use of two other materially similar anthropological reports.

246    If, contrary to the findings I have made in these reasons to this point, it was the case that the Yinhawangka Gobawarrah applicant/claim group (it matters not for this point) are able to assert some kind of privilege in the Sackett Overlap Report (whether legal professional privilege or without prejudice privilege), then in my opinion it would also be inconsistent, and unfair, in the context of the issues in dispute in this proceeding, to allow the Yinhawangka Gobawarrah applicant/claim group (given that YMAC says it is only the “custodian”) to maintain a claim to privilege. This would have the effect of handing to the Yinhawangka Gobawarrah applicant/claim group the ability to select which of the pre-existing anthropological reports it wishes the Court to see. The inconsistency is even more apparent when the bases for the agreement between the legal representatives is understood: see [240] above.

247    A slightly different point is made by Byrne J in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restraurants & Bars Pty Ltd [1999] QCA 276; [2001] 1 Qd R 276 at 291. There, in considering a claim for without prejudice privilege, his Honour said there must be:

justification for contributing to the “possibility of distorting the truth determination process” through denial to tribunals of knowledge of material information.

(Footnote omitted.)

248    Given the parties conduct, there is no such justification in these circumstances, especially when the Court is called upon in this proceeding to answer separate questions that are likely to lead, if answered in favour of either party, to a determination of native title rights and interests held in rem in the overlap area. The Court is dealing with the recognition of proprietary rights and interests which have consequences beyond the Jurruru and the Yinhawangka Gobawarrah applicants.

249    In my opinion the conclusion that the Yinhawangka Gobawarrah applicant/claim group could not maintain any privilege in the circumstances of this case (if it existed) is also consistent with the approach taken by Mansfield J in Lake Torrens Overlap Proceedings. In this situation, parties and those asserting privilege cannot pick and choose which relevant, pre-existing, expert anthropological opinions they would like withheld, and which they would like disclosed.

Conclusion

Privilege

250    In summary, in relation to the Sackett Connection Report, I have found:

(a)    no legal professional privilege exists in the report;

(b)    if it did, it was waived by submission of the report to the State;

(c)    no without prejudice privilege exists in the report, despite its submission to the State as part of the materials on which the State was asked to rely for the purpose of considering to agree to a consent determination;

(d)    if without prejudice privilege did exist, it has not been waived expressly or impliedly by its holder, the YAC; and

(e)    YMAC’s objection to production of the Sackett Connection Report should be overruled, and the Sackett Connection Report will be released by the Court to the Jurruru applicant for inspection and copying forthwith.

251    In relation to the Sackett Overlap Report, I have found:

(a)    no legal professional privilege exists in the report;

(b)    if it did, it was held by the GMY applicant, but ceased to exist when the YMAC solicitor ceased to act for the GMY and the lawyer client relationship consequently ceased, in circumstances where the report does not appear to have been provided to the GMY claim group’s new lawyer so that the purpose of keeping the document confidential as between lawyer and client could continue;

(c)    no without prejudice privilege exists in the report;

(d)    if it had attached, the privilege would have been waived by the conduct of the parties, including the Yinhawangka Gobawarrah applicant, with the assistance of YMAC, agreeing to the disclosure of all connection materials relating to the overlap area, and in exchanging and disclosing other pre-existing expert anthropological reports relating to the overlap area;

(e)    there is no privilege held in the report by parties with a “common interest”; and

(f)    YMAC’s objections to production of the Sackett Overlap Report should be overruled and the Sackett Overlap Report will be released by the Court to the Jurruru applicant for inspection and copying forthwith.

Admissibility

252    As I have noted, I declined to extend the subject-matter of the interlocutory hearing to a debate over the admissibility of any of (relevantly) the Sackett reports, should YMAC’s objections be overruled. I considered that to be premature, given neither the Jurruru applicant nor the Yinhawangka Gobawarrah applicant had seen the contents of the two Sackett reports.

253    If one or both parties to the separate question proceedings seek to adduce the Sackett reports in evidence, whether through Dr Sackett, or by asking another expert anthropologist who is called to give evidence to comment upon them, then the parties can assume I will take the same approach to any claims of privilege that are sought to be made as objections to the admissibility of either report. At present, I do not see any basis for reaching different conclusions on admissibility under the Evidence Act; however, the parties will of course be given an opportunity to be heard on any contended differences or other matters going to the admissibility of the reports, and further rulings will be made if need be.

I certify that the preceding two hundred and fifty-three (253) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate:

Dated:    23 September 2019