Federal Court of Australia

Widjabul Wia-bal v Attorney General of New South Wales (Confidentiality of affidavit material) [2023] FCA 438

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent is to file:

(a)    a copy of the affidavit of Mebbingarri Cindy Roberts affirmed on 6 September 2022 and read at the hearing for joinder on 29 September 2022 with the following items redacted from the fifth sentence in paragraph 10:

(i)    the numerical figure;

(ii)    the dollar sign preceding that figure; and

(iii)    the word immediately after that figure; and

(b)    a copy of the affidavit of Suzanne Holten / Roberts affirmed on 7 September 2022 and read at the hearing for joinder on 29 September 2022 with the following items redacted from the fourth sentence in paragraph 16:

(i)    the numerical figure;

(ii)    the dollar sign preceding that figure; and

(iii)    the word immediately after that figure.

2.    Pursuant to section 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, the following evidence be ordered confidential within the meaning of FCR 2.32(1)(b) of the Federal Court Rules 2011 and their disclosure (except to the applicant and the first respondent and their legal representatives) be prohibited for a period of ten years:

(a)    the unredacted copy of the affidavit of Mebbingarri Cindy Roberts affirmed on 6 September 2022; and

(b)    the unredacted copy of the affidavit of Suzanne Holten/Roberts affirmed on 7 September 2022.

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

REASONS FOR JUDGMENT

(Revised from transcript)

RARES J:

1    On 19 December 2022 I made a consent determination of native title in this proceeding: Widjabul Wia-bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521. The parties had been engaged in extensive negotiations over many years to arrive at that position, in the course of which they developed the settlement the subject of the orders of 19 December 2022. Order 3 of those orders provided that the determination would take effect on the registration of the indigenous land use agreement (ILUA) that the applicant and the Attorney-General had made as an integral part of the State’s participation in arriving at agreement to the consent determination itself.

2    On 19 April 2023, the Native Title Registrar entered the determination of native title and the details of the ILUA into the National Native Title Register pursuant to Pt 8A of the Native Title Act 1993 (Cth).

3    The parties to the ILUA were the Attorney-General, the applicant, the prescribed body corporate under the consent determination, Widjabul Wia-bal Gurrumbil Aboriginal Corporation and a number of officers of the State, including four other ministers. There were no third parties to the ILUA besides emanations of each of the applicant and the State.

The contentious matter

4    Jagot J had been the docket judge, up until her Honour’s appointment as a justice of the High Court of Australia. During the course of the negotiations to arrive at an agreement for both the consent determination and the terms of the ILUA, her Honour dealt with an interlocutory application that Cindy Roberts (the joinder applicant) made to be joined as a respondent to the proceeding under s 84(5) of the Native Title Act. In the course of preparing her application, Jagot J made orders for the filing of evidence and objections.

5    Ms Roberts, together with Susanne Holten-Roberts, filed affidavits affirmed on 6 and 7 September 2022 respectively (the two affidavits). Each of par 10 of Ms Roberts’ and par 16 of Ms Holten-Roberts’ affidavit is in substantially the same form, and partway through contains a dollar amount (the figure) the confidentiality of which the Attorney-General seeks now to preserve. Those paragraphs referred to the fact that an ILUA was being negotiated between the applicant and the State that was linked to the resolution of the applicant’s claim for a determination of native title.

6    On 7 September 2022, the Attorney-General filed and served objections to the paragraphs in which the figure appeared in the two affidavits on the ground that these revealed negotiations for settlement that s 131(1) of the Evidence Act 1995 (Cth) rendered inadmissible.

7    During a case management hearing on 9 September 2022 her Honour referred to the filed objections to the two affidavits. At the next case management hearing on 21 September 2022, counsel for the Attorney-General reminded her Honour that there were objections to the two affidavits. Her Honour indicated that there was a limited time for the hearing of the complex issues that would arise on the joinder application and that, understandably, she did not wish to waste time ruling on objections. She required that an amended list of objections be provided to the parties and the Court which she would make an exhibit and to which she would have regard in the course of dealing with the evidence. Her Honour said that she would be very mindful of the nature of the application and the objections to it in dealing with the matter.

8    There was a degree of urgency in her Honour dealing with the matter because the parties needed to resolve all issues, including both the final terms of what was proposed to be made as the s 87 agreement reflecting the consent determination and the final form of the ILUA prior to the end of 2022.

9    The matter was re-docketed to me after her Honour had rejected Ms Roberts’ application for joinder: Widjabul Wia-bal v Attorney-General of New South Wales [2022] FCA 1187. At that time, the parties impressed on me that it was essential for the purposes of resolving the matter that there be a consent determination prior to the end of 2022, as a result of which I ordered a timetable, to which the parties adhered, so that the consent determination could in fact be made at Lismore on 19 December 2022.

This application

10    The Attorney-General sought orders in his amended interlocutory application filed on 3 April 2023 that, first, he file a redacted version of the two affidavits that removes the figure and, secondly, pursuant to s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth), the figure mentioned in the unredacted copies of the two affidavits be kept confidential for a period of 10 years and not be available for public inspection other than to the applicant, the Attorney-General and their legal representatives.

11    At no point was the figure mentioned in the two affidavits referred to or mentioned during the course of the hearings for the joinder application before her Honour or me or in any written submissions or otherwise. The two affidavits made clear that the figure was one which was being discussed in the course of negotiations between the State and those then comprising the applicant, whom Ms Roberts wished either to supplant or challenge.

12    I note that, in the details of the ILUA that the Registrar entered into the Register on 19 April 2023, no reference is made as to whether there is any monetary sum in or payable under the ILUA. That may be because the Registrar was satisfied that either it would not be in the public interest for any such information to be included in that part of the Register available to the public under s 195(1) of the Native Title Act or because the parties to the ILUA had advised the Registrar, in writing under s 199E(1), that they did not wish some or all of the details to be available for inspection by the public. The applicant objected to me seeing the ILUA so there is no evidence about its contents other than the publicly available details in the Register.

13    In support of his application, the Attorney-General relied on the affidavit of Daniel Byers, the Director Native Title and Governance in the Department of Planning and Environment, who held responsibility for day-to-day direction of the Attorney-General’s response to native title determination applications, provided both support to him in relation to native title policy and instructions to the Crown Solicitor’s Office in native title proceedings. Mr Byers has supervised or had carriage of all 10 native title determination applications resolved by a determination under ss 87 or 87A of the Native Title Act out of the total of 17 native title determinations recognising native title in New South Wales. He stated that, to date, the State had only agreed to provide compensation to one group in New South Wales and had agreed partially with another group. He said that, in his view, the question of compensation remains a live issue to be addressed in New South Wales in relation to proceedings that are currently on foot and future claims and was mindful of the fact that further applications for compensation will, in due course, be filed, as is a matter of common knowledge in this area of the Court’s jurisdiction. He said that a fundamental aspect of the settlement process of this proceeding, which both the Attorney-General, through his participation, and the applicant had understood and agreed, was that the negotiation of settlement, including the amount of compensation, would remain strictly confidential between the applicant and the Attorney-General.

14    Mr Byers was concerned that revelation of figures that the parties had discussed may affect the State’s position in relation to its negotiation of other matters. He said that the relevance of the settlement reflected in the consent determination and ILUA in this matter, would be likely to fall away in about 10 years’ time, given the period in which parties engage in negotiations to resolve current native title claims before the Court. One would hope that period will continue to speed up, as it has over recent years, once a native title claim is brought into active case management, because the parties are ready to discuss either resolving it by agreement or having the Court resolve it.

Consideration

15    Relevantly, s 131(1) of the Evidence Act prohibits the adduction of evidence of a communication made between persons in dispute or between one or more persons in dispute or a third party in connection with an attempt to negotiate a settlement of the dispute.

16    In my opinion, the Attorney-General’s objection to the admissibility of the figure in each of the two affidavits was well taken under s 131(1) and, to the extent that it had any application, conformed with the privilege at common law against the admissibility of statements made during the course of negotiations on a without prejudice basis.

17    Although her Honour did not make a formal ruling that the figure in the two affidavits not be admitted into evidence, I am satisfied that, first, her Honour had no regard to the figure in her consideration of the joinder application because it was self-evidently inadmissible, secondly, her Honour understood this by reason of the reference in the Attorney-General’s objections to the admissibility of those paragraphs in which the figure appeared, and, thirdly, no one, including Ms Roberts as the joinder applicant, made any reference to the figure itself during the course of the proceeding other than by having filed the two affidavit with a view to having them admitted into evidence.

18    In Commonwealth v McCormack (1984) 155 CLR 273 at 276, Murphy, Wilson, Brennan, Deane and Dawson JJ applied what Lord Cairns LC had said in Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465 at 475, namely:

... one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter to the highest Court which finally disposes of the case.

19    It is plain beyond argument that, at the time at which Ms Roberts sought to rely on the figure in the two affidavits, the State and those representing the applicant were parties to a dispute and were attempting to negotiate a settlement of it, namely whether there should be a determination of native title and, if so, on what terms, an essential condition for which on the State’s side was the entry by the applicant into a proposed ILUA which they were also negotiating.

20    The public purpose of the without prejudice privilege at common law and in s 131 of the Evidence Act is an essential aspect of the administration of justice. As Dixon CJ, Webb, Kitto and Taylor JJ said in Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291:

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. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission.

(emphasis added)

21    This rationale extends to the quantification of an amount one party may be prepared to offer or pay or the other to accept as part of the process of arriving at a resolution. Lord Griffiths, with whom the other members of the appellate committee agreed, also explained the public policy underpinning without prejudice privilege as essential to the conduct of litigation in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 at 1299G-H where he said:

The rule applies to exclude all negotiations generally aimed at settlement, whether oral or in writing, from being given in evidence.

22    As discussed during the course of argument, the Attorney-General did not consider it open to him to tender the ILUA or to make a comparison between it and any terms that it might contain with the figure in the two affidavits or to state whether that sum ultimately found its way into the ILUA. In my opinion, it was not necessary for the Attorney-General to adduce that evidence, because it was plain that her Honour was conscious, at the time that she dealt with this material, that the Attorney-General had objected to Ms Roberts adducing into evidence the without prejudice communication of the figure. Moreover, the amount of the figure was substantively irrelevant to the issues arising on the joinder application.

23    There is no evidence that anyone, other than the parties, together with Ms Roberts and Ms Holten-Roberts, knows of the content of the paragraphs in which the figure appears. While her Honour may have made no formal ruling excluding the figure appearing in the two affidavits from evidence, since those affidavits were not read aloud in the hearing and have not been made available or otherwise revealed publicly, the Court remains in the position of being able to control their use and availability as documents sought to be or actually available for public inspection on its electronic court file and to correct anything that has occurred in the meantime.

Conclusion

24    I am of opinion that the public importance of the without prejudice privilege, both at common law and as reflected in s 131 of the Evidence Act, is integral to the proper administration of justice. Accordingly, it is appropriate that the figure in the two affidavits ought now be redacted and an order be made suppressing and prohibiting its publication for 10 years. That can be achieved in the way in which the Attorney-General has sought, in order to prevent prejudice to the proper administration of justice.

Associate:

Dated:    8 May 2023

SCHEDULE OF PARTIES