Carter on behalf of the Warrwa People v State of Western Australia

1. The interlocutory application dated 17 May 2024 by the Applicant in WAD598/2016 Boorroola Moorrool Moorrool (BMM Applicant) is refused.
2. On or before 13 June 2024, the BMM Applicant do provide to the associate to the case managing judge a minute of the orders that it seeks in relation to inspection of the documents produced by Dr Palmer in response to the subpoena issued on 7 May 2024 by the Applicant in WAD33/2019 Warrwa Combined. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The Warrwa People and the Boorroola Moorrool Moorrool claim group have overlapping claims to determinations that native title exists in respect of an area in the Kimberley Region of Western Australia (Overlap Area). The relevant claims were filed quite some time ago. Agreement has been reached as to the terms of a proposed consent determination of native title over the Overlap Area. The agreement relates to all issues relevant to the making of a consent determination except for one. It is the subject of orders for the trial of a separate question which concerns whether the descendants of Topsy Mouwudjala possess native title rights and interests in the Overlap Area. Expert evidence in the trial of that separate question is scheduled to be received in the period 28 to 30 October 2024. 2 In January 2024, at a case management hearing, the Court was informed that the applicant in the native title proceedings brought by the Boorroola Moorrool Moorrool claim group (BMM Applicant) was retaining Dr Kingsley Palmer for the purpose of providing an expert opinion that would assist the Court to determine the separate question. Dr Palmer is a well-known anthropologist who has given expert evidence in many native title proceedings. 3 Orders have been made for the exchange of expert evidence ahead of the hearing of the separate question. The time for the exchange by the two applicant claim groups of expert reports has now passed. In the result, the BMM Applicant has not disclosed a report of Dr Palmer, having indicated at a case management hearing on 14 March 2024 (held some two months before for the time for exchanging expert reports) that the BMM Applicant did not intend to call an expert. 4 The applicant in the native title proceedings brought by the Warrwa People (Warrwa Applicant) seeks production of documents held by Dr Palmer which concern matters which relate to the determination of the separate question. The Warrwa Applicant sought and obtained the issue of a subpoena addressed to the BMM Applicant. The subpoena required production of the following: All reports, opinions or memoranda prepared by Dr Kingsley Palmer in relation to the Boorroola Moorrool Moorrool Native Title Application (WAD598/2016) during the period 1 January 2023 to 15 March 2024. 5 After the subpoena was served it was clarified that the subpoena only sought documents that were in relation to the brief to Dr Palmer to produce a report as to matters the subject of the separate question. 6 An application was brought by the BMM Applicant to set aside the subpoena. The grounds for the application were expressed in the following terms in written submissions in support of the application: The BMM Applicant seeks to set aside the subpoena on the following grounds: a) The subpoena is not issued for a legitimate forensic purpose as it is not apparent that the documents sought would assist on a material issue in the proceedings (Legitimate forensic purpose issue); b) The subpoena is an abuse of process if by it the Warrwa Applicant is seeking to obtain the name of the BMM Applicant's witnesses and the nature of their evidence (Abuse of process issue); c) The subpoena is 'fishing' (Fishing issue). 7 None of those grounds was a compelling basis to set aside the subpoena. However, by written reply submissions on the application, the BMM Applicant changed tack. The application to set aside the subpoena was withdrawn and submissions were advanced to support a claim of legal professional privilege. By those reply submissions it was said that the only document in the possession of the BMM Applicant that might answer the subpoena was a draft of a report provided by Dr Palmer to the BMM Applicant on 25 January 2024. 8 The application to set aside the subpoena was heard by me on 1 May 2024. In the course of oral submissions, I queried why it was that the subpoena was directed to the BMM Applicant rather than Dr Palmer. I expressed the preliminary view that it seemed likely that a draft report by an expert briefed to provide a report for use in the hearing of the separate question that was provided to the lawyers acting for one of the parties at their request was likely to be privileged from production. I made orders dismissing the interlocutory application to set aside the subpoena, extended the time for compliance by a few days and made the following directions: Any affidavit and submissions in support of any claim to legal professional privilege in respect of documents to be produced in response to the subpoena be filed and served by 4.00 pm AWST on 3 May 2024. Any affidavit and submissions in answer to any claim to legal professional privilege be filed and served by 4.00 pm on 7 May 2024. Any claim to legal professional privilege be determined at a hearing to be held at 3.00 pm AWST on 9 May 2024. 9 Thereafter, on the application of the Warrwa Applicant an order was made setting aside the subpoena. The hearing scheduled for 9 May 2024 was vacated. At the same time, the Warrwa Applicant has sought and obtained the issue of a subpoena to Dr Palmer in substantially the same terms as the earlier subpoena save that it is directed necessarily to documents in the possession of Dr Palmer himself. 10 The BMM Applicant then applied to set aside the subpoena to Dr Palmer. It advanced three grounds in support of the application, namely: (1) the subpoena is not issued for a legitimate forensic purpose; (2) it is oppressive to put Dr Palmer to the effort of responding to the subpoena; and (3) it is an abuse of process because it seeks to undermine the orders made setting aside the earlier subpoena to the BMM Applicant. 11 As to (1), documents will serve a legitimate forensic purpose if they have apparent relevance to the issues to be determined in the proceeding, such that they will have a bearing on the issues that is not 'unreal, fanciful or speculative' or where it is 'on the cards' that the documents will materially assist the party who has requested the issue of the subpoena: Wong v Sklavos [2014] FCAFC 120 at [12] (Jacobson, White and Gleeson JJ). The following principles as extracted from Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 by the Full Court in Seven Network (Operations) Limited v Fairfax Media Publications Pty Limited [2023] FCAFC 185 at [38] (Wheelahan, Anderson and Jackman JJ) apply in considering whether to set aside a subpoena on the basis that it seeks documents that lack sufficient relevance (citations omitted): (a) the language of 'tests' should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose …; (b) it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena …; (c) it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive …; (d) put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case …; and (e) it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist … . 12 It is said by the BMM Applicant that a copy of the draft report in the hands of Dr Palmer would be privileged. It is then said that any other documents held by Dr Palmer would be of no utility because: a) No party has filed an expert report of Dr Palmer; b) No party is calling Dr Palmer as a witness; c) Dr Palmer has only ever produced the draft report, over which privilege is claimed; d) The draft report cannot be admitted into evidence as, putting to one side the client legal privilege claimed over it, it is in draft, it would not meet the requirements of Part 23 of the Federal Court Rules 2011 (Cth) and the Federal Court's Expert Evidence Practice Note, and Dr Palmer is not a witness and not available for cross-examination; e) The Warrwa Applicant has retained its own experts and has filed expert reports from those experts; f) The State has retained its own expert and is expected to file a report from its own expert on or before 21 June 2024. 13 These submissions are misconceived. Whether a draft report in the hands of Dr Palmer is privileged will depend upon the facts. The BMM Applicant does not condescend into any factual detail in that regard. As to other notes and records, they will be apparently relevant given that the description of the documents is by reference to documents that concern the subject matter of the separate question. 14 This is not a case where the documents are sought in order to be able to rely upon the documents themselves. Rather, they are sought by reason of what they may indicate as to the opinions held by Dr Palmer an acknowledged expert in the field of considerable experience. Further, on the evidence before the Court, Dr Palmer has turned his mind to matters that bear upon the separate question and has deliberated sufficiently to have prepared a draft report. Therefore, the documents sought in answer to the subpoena may record opinions genuinely held by Dr Palmer or materials that are in his possession that may provide a foundation for those opinions (or which otherwise bear upon the resolution of the separate question). It is on the cards that documents held by him are of a kind that may be used to be put to other experts that have been retained by the Warrwa Applicant. It is not to the point that the draft report itself may not be in a form that could be admitted into evidence (a matter that it is not necessary to resolve). On the evidence on the application, the documents sought may materially assist in the sense that they may cast light on an issue or be deployed in some forensic way to assist in the determination of the separate question. The availability of other expert evidence does not make the documents sought by the subpoena forensically insignificant. 15 As to (2), Dr Palmer has responded to the subpoena and produced materials to the Court some three weeks ago. Reliance upon that ground was not pressed at the hearing. 16 As to (3), the submission made is that the Warrwa Applicant now seeks from Dr Palmer essentially the same documents as it sought from the BMM Applicant in the earlier subpoena, despite having requested that the subpoena be set aside. It is said that this somehow undermines the orders that were made setting aside the subpoena. 17 This submission is hopeless. The subpoena now sought is different in that it seeks the production of different documents by a different party. The documents in the possession of Dr Palmer are not the documents in the possession of the BMM Applicant (though they may include Dr Palmer's own copy of the draft report). Further, it is common for the same categories of documents to be sought from different subpoena recipients. 18 For those reasons, I determined that the application to set aside the subpoena should be dismissed. 19 As the substantive issue between the parties appeared to concern whether the documents that had been produced by Dr Palmer without objection may be the subject of a claim for legal professional privilege by the BMM Applicant by reason of his retainer to prepare the draft report, I made a direction that the BMM Applicant propose orders as to the terms of inspection of the documents produced in answer to the subpoena so that the issue may be addressed as soon as possible. I indicated that I would provide an opportunity to the Warrwa Applicant to make submissions as to those orders before making orders as to inspection and the adjudication of any privilege claim. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.