Alcoota Aboriginal Corporation & Anor v Gray & Ors [2001] NTSC 30

Alcoota Aboriginal Corporation & Anor v Gray & Ors [2001] NTSC 30 - NTSC 2001 case summary — Zoe

[9]

[2] Briefly, this action concerns a dispute in relation to an area of pastoral land in the Northern Territory known as Alcoota Station.

[3] The first plaintiff alleges that it is the registered lessee of a pastoral lease under the provisions of the Crown Lands Act 1992 (NT) over the land and Mr Turner claims, amongst other things, that he is a traditional Aboriginal owner of the land. A claim has been made over the land pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act (Cwth) 1976. The plaintiffs oppose that claim. In these proceedings, they raise a number of complaints about the actions of the second defendant and lawyers employed by it in regard to events leading up to and surrounding the making of the claim and matters to do with the constitution and administration of the Corporation.

[4] They allege that they were in a position of vulnerability or inequality in relation to the second defendant, that they relied on it to protect their interest in the land and the management of the land, to care for them in relation to the conduct of the affairs of the Corporation, to properly advise and to assist them in all such matters and to generally act at all times in their best interests. They allege that the second defendant acted in breach of the responsibilities arising from the relationship between it and them, and that a number of actions regarding the Corporation and the land were procured by the undue influence of the second defendant over them.

[5] The second defendant denies those allegations and says that at all material times the plaintiffs received, and had available, independent legal advice from Noonans Lawyers, a firm of solicitors, ("Noonans") and advice and assistance, including financial and material assistance, from those solicitors and the Northern Territory Government and its agencies in respect of the matters for which the plaintiffs claim they relied upon the second defendant for protection, care and advice. By their Reply the plaintiffs admit that Mr Turner had received legal advice and related assistance at the expense of the Northern Territory Government in relation to some matters and that he and the Corporation had received legal advice and related assistance at the expense of the Northern Territory Government in relation to certain other matters, but otherwise deny the defence in that regard. The issues joined in this regard are the focus of this stage of the proceedings.

[6] The second defendant issued subpoenas directed to the Chief Minister of the Northern Territory, the Secretary of the Department of the Chief Minister, the Chief Executive Officer of the Northern Territory Attorney-General's Department and the Solicitor for the Northern Territory requiring production of documents dealing in whole or in part with either of the plaintiffs in various capacities and in respect of various issues, including communications between Ministers of the Northern Territory and employees of the Government of the Northern Territory and Noonans dealing in whole or in part with any of those subjects.

[7] Bundles of documents have been brought into court in response to the subpoenas accompanied by affidavits in which claims are made for public interest immunity and legal professional privilege. Those claims are not accepted by the second defendant which seeks an order enabling inspection of all of the documents.

[8] Differing views have emerged as the documents, the subject of the subpoenas, were inspected by officers of the Northern Territory. Sonia Lee Brownhill, a legal officer in the employ of the Solicitor for the Northern Territory swore an affidavit on 13 February 2001. On the same date Christopher John Bigg, acting secretary of the Northern Territory Department of the Chief Minister with responsibility for the operations of the Cabinet office, including the organisation, collation and circulation of Cabinet submissions, also swore an affidavit supplemented by another on 16 March 2001. On 15 March 2001 Garry Raymond Schneider, employed as a legal practitioner with the Northern Territory Attorney-General's Department, provided further information on oath in respect of the matters disclosed in the other affidavits, plus additional material.

[9] Files or portions of files to which objection to inspection based upon either public interest immunity or legal professional privilege has been taken, have been isolated into sealed envelopes. (So as to preserve the integrity of the files, many documents regarded as being "unresponsive to the subpoena" have been identified, but not removed. Inspection of the material is resisted, but I do not understand there to be any dispute about that).

[38]

[35] I am invited by the second defendant to inspect the documents in respect of which the privilege is claimed and of which it seeks production. It is a vexed issue as to whether a Judge may go behind the formulated claim and "take a peek".

[36] Lord Wilberforce reviewed various English authorities in Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 commencing at 1116 from which the following is extracted (citations omitted):

The question is one for the discretion of the Judge who, it was said, should normally accept the affidavit claiming immunity.

If the objection of the Minister is defective, then the documents could be inspected so the Court could form its own opinion as to the public interest.

The power should be exercised "sparingly" and then only if there are reasons to doubt the accuracy of the certificate or the cogency of the Minister's reasons.

Inspection should be by way of final check.

Inspection should be made if the Judge "feels any doubt about the reason for (the document's) inclusion as class documents. It was inconsistent with the recognition of a general right or duty to inspect for the Crown's consent to be sought to inspect."

Inspection arises only in rare cases where a strong positive case is made out, certainly not upon a bare unsupported assertion by the party seeking production that something to help him may be found.

[37] See also the example cited by Lord Edmund-Davies at p 1129:

If on balance the Judge decided the documents probably ought to be produced, then it would generally be best that a Judge should see them before ordering production. "... but it is important that the Minister should have a right to appeal before the document is produced".

If there is any doubt about whether the document is part of a "class" then the Judge should not hesitate to inspect it.

[38] Lord Keith at p 1135 referred to situations where grave doubts arise from the terms of the Ministerial Certificate and the court feels it cannot properly decide upon which side the balance falls without privately inspecting the documents.

[39] The matter was taken up by Lord Fraser in Air Canada v The Secretary of State (No 2) [1983] 1 All ER 910 at 917:

[72]

[64] As to that Mr Schneider says, commencing at par 20, that in Part 1 of the file there are a number of documents in respect of which the claim for legal professional privilege is withdrawn. They were placed in a sealed envelope upon the file. As to the balance of the documents, Mr Schneider says they fall into three categories. In Exhibit GRS5 (copy attached) he provides an individual listing of a number of documents in the first category in respect of which privilege is claimed on the basis that they "have been either created, procured or used by the Solicitor for the Northern Territory for the purpose of providing advice to its client the Northern Territory of Australia and its Ministers".

[65] The next category comprises copies of a number of identified documents which Mr Schneider describes by reference to sundry exhibits, being documents in respect of which a claim to public interest immunity is made and legal professional privilege is also claimed. (They are dealt with elsewhere in these reasons).

[66] The third category comprises a document titled "Arthur Turner - Alcoota Aboriginal Corporation - Update" in respect of which no claim for privilege is made on the part of the Territory, but which he has separated upon the basis that they may be the subject of a possible claim for privilege by the plaintiffs.

[67] As to Part 2 of file LS961262, Mr Schneider identifies a number of documents in respect of which the claim for legal professional privilege is not pressed, but says that privilege is claimed in respect of the documents referred to in Exhibit GRS6, copy attached, which Mr Schneider says have either been created, procured or used by the Solicitor for the Northern Territory for the purpose of providing advice to its client the Northern Territory and its Ministers. He also identifies documents on that part of the file over which the plaintiff may wish to claim privilege and they have been set aside.

[68] As to Part 3 of that file, Mr Schneider says that the Territory makes no claim for privilege in respect of the documents on that file.

[98]

[81] The documents claimed to be subject to this privilege appear to fall into two main categories. First, those identified as being created for communication within government for government, that is, between lawyers employed by government and those lawyers and ministers in the conduct of their affairs as ministers. Second, are those identified as created for communication between lawyers employed by government and lawyers in private practice acting for the plaintiff.

[82] The first category might be related to the seeking and giving of advice, as claimed, and the second, in relation to the litigation. There is little in the evidence to clearly differentiate between all the documents, some may fall into one class or the other and others may be concerned with both.

[83] Assuming that some documents relate wholly or in part to the issue of the provision of financial and other assistance by the government to the plaintiffs, as the second defendant alleges, then it is by no means clear that they are privileged. They may be in the first category, concerned with the seeking and giving of legal advice, but given the high level of communication, departmental head to minister and between departmental heads, in some instances, there is a possibility that those documents may relate to matters other than the seeking and giving of legal advice.

[84] There is no suggestion that any of the communications were for the dominant purpose of providing legal advice to either of the plaintiffs.

[85] As to the second category of communications, it does not seem that they are the subject of the privilege. There is nothing to suggest that they sought or communicated information to be used in the litigation. For examples of privileged communications in this class see the documents referred to by Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at 245-246 especially par (e) and par (f) and the cases cited.

[86] If legal professional privilege is claimed over communications and documents passing between the solicitor and a non-agent third party, the claimant must satisfy a twofold test, per Barwick CJ in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 677:

(1) that at the time of preparation of the communication, litigation was either contemplated or commenced; and

(2) that the communication was brought into existence for the dominant purpose of that litigation.

[87] There is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation. Where the third party is not an agent of the client, the documents are privileged only if they are delivered to the solicitor for the sole or dominant purpose of anticipated litigation (Baker v Campbell (1983) 153 CLR 52).

[88] Bills of costs are not privileged per se, they will however be privileged to the extent that they contain or refer directly to confidential matters so as to disclose the subject of the communication (Packer v Deputy Commissioner of Taxation (1984) 55 ALR 242).

[89] Communications from Noonans to the Solicitor for the Northern Territory relating to the provision of financial or other assistance to the plaintiffs are not for use in the litigation; they are for the purpose of supporting the plaintiffs as parties to the litigation in relation to the cost of the litigation. In Baker v Campbell (1983) 153 CLR 52 at p 166, Gibbs CJ excluded from the privilege the confidential communications made to a banker. In so far as they include legal advice they are not communications between solicitor and client.

[90] Bearing all these considerations in mind I came to the view that I should inspect all of the documents in respect of which legal professional privilege was claimed.

[100]

[91] File 96/32. The documents from this file comprise copies of the letter from the Solicitor for the Northern Territory to the Secretary of the Department of the Chief Minister dated 3 September 1996 to which are attached copies of some bills of cost from Noonans. The dominant purpose of the letter is not the giving of legal advice, it is the seeking of instructions by the Solicitor for the Northern Territory in a capacity other than for the giving of legal advice. The accounts from Noonans are not privileged. They are not addressed to either of the plaintiffs, they were not brought into existence for the purposes of seeking or giving legal advice, and the Solicitor for the Northern Territory was not the solicitor for Mr Noonan or the solicitor for the plaintiffs. There is no solicitor and client relationship. On their face the bills do not disclose any confidential communication as between the plaintiffs and Mr Noonan. The facsimile transmission from Mr Conran to Mr Anderson of 5 September with the handwritten note is not privileged. It does not seek legal advice. A five page document, "Alcoota Land Claim - Report by James Noonan, Solicitors, of the representation of Arthur Turner up to 29 May 1996", is unsigned, and there is no recipient marked on it. There is a stamp which says "Attachment 3 September 1996" and the evidence suggests that it was attached to the letter from the Solicitor for the Northern Territory to Mr Conran. The report was referred to by the Solicitor for the Northern Territory in his letter to Mr Conran in the context of his seeking instructions to which reference has been made above. There is no evidence from which to make a finding as to the purpose for which that report was prepared. It is not privileged. All the documents may be inspected. They are in an envelope marked "96/32".

[92] As to LS961262 Part 2, the following documents are not subject to the privilege:

(a) Claims for payment being internal formal Northern Territory government forms containing particulars of monetary claims in respect of "Alcoota Land Claim". There are attached what appear to be financial records relating to the Alcoota Land Claim and they are not privileged either. There is a separate bundle of documents related to internal financial transactions, the first of which appears to be a receipt for $100,000 numbered 151753. They are not privileged.

(b) A copy of a memorandum of 27 March 1997 from the Acting Secretary Northern Territory Attorney-General's Department to Jim O'Brien, a senior ministerial officer, providing financial information regarding costs is not privileged.

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