23 Binalong Pty Ltd (Binalong) established a marina on Hindmarsh Island in the mid-1980s. In 1988 the company decided to significantly expand the marina, and ultimately obtained planning approval to do so in six stages. However, beyond the first stage the consent was conditional upon the construction of the bridge. It is for present purposes unnecessary to further recount the long history of the obstacles and delay which the construction of the bridge encountered. The delays caused or exacerbated financial difficulties suffered by Binalong, and on 8 April 1994 receivers were appointed by its financier Partnership Pacific Limited. The company went into liquidation on 8 August 1994. In these proceedings the applicants seek to enforce rights alleged to have accrued to Binalong in 1994 in consequence of the construction of the bridge being halted by the s 10 declaration.
24 Against the first and second respondents, Luminis Pty Ltd (Luminis) and Dr Fergie, it is alleged that Luminis was engaged by ALRM to provide consultancy services, and that Dr Fergie was appointed by Luminis as its agent for that purpose. Against Luminis, Dr Fergie and Professor Saunders it is alleged that they engaged in misleading and deceptive conduct in the preparation of their reports, and are liable for Binalong's losses under s 82 of the Trade Practices Act 1974 (Cth) and corresponding provisions of the Fair Trading Acts of South Australia and Victoria. It is also alleged that Luminis and Dr Fergie were negligent in relation to preparation of the Fergie report, and that Professor Saunders was negligent in relation to the preparation of her report. It is alleged that Professor Saunders and Mr Tickner were guilty of a breach of statutory duty imposed by s 10 of the HPA, and that Mr Tickner was also guilty of negligence and misfeasance in public office. Against the Commonwealth a claim is made under s 51(xxxi) of the Constitution and s 28 of the HPA for reasonable compensation on the ground that the s 10 declaration constituted an acquisition of Binalong's property, namely rights under the planning approval, and contractual rights to have the bridge constructed.
25 The applicants contend that information as to the contents of the secret envelopes and information regarding restricted women's knowledge in Ngarrindjeri tradition is relevant to issues raised by their pleadings. In my opinion that submission is correct. The allegations of misleading and deceptive conduct pleaded against Luminis and Dr Fergie inevitably involve an assessment of whether the conclusions expressed by Dr Fergie were justified having regard to the information that was available to her. Her conclusions were, according to her report and her evidence, substantially based upon information recorded in Appendix 2 to her report. Knowledge of the contents of the secret envelopes is also relevant in the assessment of whether that information was recently fabricated, or whether it finds support from, and has some relationship with, other aspects of Ngarrindjeri history, culture and tradition about which evidence has been given.
26 Similarly, information as to the contents of the secret envelopes is relevant to an assessment of the justification for conclusions expressed by Professor Saunders in her report. It would also be relevant to learn from Professor Saunders and Ms Mullins what information Professor Saunders received first hand from Dr Kartinyeri, to assess whether she based her conclusion upon her own inquiries, or whether her conclusions were based upon representations conveyed by the Fergie report, including the information in the secret envelopes. Professor Saunders in her defence pleads that she based her report on information which she received directly from informants, and not on Dr Fergie's report, but that assertion does not necessarily answer the case pleaded against Dr Fergie. If Dr Fergie, upon the information base available to her should have reported that the oral tradition related to her by Dr Kartinyeri was on anthropological grounds suspect or unlikely to be true, such an opinion could have altered Professor Saunders' opinion.
27 In the case of Mr Tickner, he did not read the secret envelopes (although his assistant Ms Kee did so). It is alleged against him that his failure to do so constituted negligence, breach of statutory duty, and a misfeasance in public office. The causes of action based upon those allegations require the applicants to prove that the acts complained of caused the loss and damage alleged by them. It is therefore relevant to inquire whether, if the representations, including the secret envelopes, had been read by Mr Tickner, his decision to make a s 10 declaration would have been any different.
28 I hold that the evidence which Dr Fergie does not wish to give is relevant evidence. Similarly, questions which will be directed by the applicants' counsel to Professor Saunders, Ms Mullins and Ms Kee about the restricted women's knowledge, and the contents of the secret envelopes will seek to elicit evidence relevant to issues raised by the pleadings.
4. Next, Mr Anderson contended that evidence already given by Dr Fergie indicates that she has an incomplete, unreliable and unsafe recollection of events which occurred in 1994, and in these circumstances secondary evidence of the contents of the secret envelopes should not be accepted from her as it is not of a sufficient order of reliability, and, further, the evidence should in any event be excluded in exercise of the discretionary power in s 135 of the Evidence Act to exclude evidence which might be unfairly prejudicial to a party or be misleading or confusing.
29 In support of the first limb of this argument reliance was placed on Maks v Maks (1986) 6 NSWLR 34 and Mack v Lenton (1993) 32 NSWLR 259. In the first of these cases it was sought to lead oral secondary evidence as to the contents of a lost document said to evidence a declaration of trust by the defendant in favour of the plaintiff in respect of a half interest in a house property. In the second case it was sought to lead oral evidence of the contents of a lost deed. In both cases the court held that secondary evidence should not be received unless the oral evidence was clear and satisfactory as to the contents of the documents. However in each of those cases, the court was concerned with terms which delineated property rights. In cases of that type the need for clear evidence as to the terms stated in the lost document is obvious. In Mack v Lenton, Young J referred to American authority which instructs that the degree on which the court will require there to be certainty of the reconstruction will to a great extent differ, depending on what is the document and what is the purpose of its admission. However where property disputes were in question his Honour accepted that, at least in specific performance proceedings, clear and satisfactory evidence of the contents of the lost document was necessary.
30 In my opinion those cases are distinguishable, as in this case precise recollection of the words used in the lost document is not essential. Even a recollection of topics would assist in the resolution of the issues involved. Poor memory as to the detail of information given in relation to topics would go to weight, and it may be, at the end of the day, that no weight could be given to the recollection of Dr Fergie. However, in advance of receiving evidence from her it is not possible to tell whether she has any memory at all of the contents, and if so, whether that memory is entitled to weight. Quite apart from questions that may be directed to Dr Fergie as to the contents of Appendix 2, in my opinion the secondary evidence rule does not apply insofar as Dr Fergie is asked to recount what was said to her by Dr Kartinyeri. The conversation between the two witnesses is otherwise admissible. If Dr Fergie's recollections of the conversations are poor, then her evidence about those conversations will be evaluated in the same way as evidence as to events based on faulty recollection given by any other witness will be assessed.
31 As to the second limb of the argument under s 135, there is always a risk that the oral evidence of a witness with a faulty recollection will be misleading or confusing, or that the imperfect recollection of the witness may lead to a misinterpretation or wrong conclusion about the fact in issue. That however is not normally a ground for rejecting the evidence of a witness in a civil case. The usual course is to accept the evidence, and if the court is of the opinion that at the end of the day it is not entitled to weight, the evidence is put to one side. This is not to deny that the power to exclude evidence exists under s 135, and an exceptional case might arise where the probative value of evidence sought to be led is minimal, and outweighed by one or other of the dangers specified in s 135. Even if Dr Fergie were merely appearing in the case as a witness, I consider that evidence as to the content of the restricted women's knowledge is of sufficient importance that the balancing exercise required under s 135 would result in the admission of the evidence. Dr Fergie however is not merely a witness. She is a party to the proceedings, and the evidence sought from her goes to central issues in the case against her. In my opinion that is an important consideration in favour of the admission of the evidence.
32 Mr Anderson has argued that if Dr Fergie is required to give evidence about the restricted women's knowledge, it should in the first instance be received on the voire dire, so that the application under s 135 can be reconsidered in the knowledge of the evidence that she is able to give. On reflection I think that such a course is not appropriate and would only serve to further prolong and complicate the trial. Insofar as Dr Fergie may give evidence that her recollection has deserted her or is faulty about the restricted women's knowledge, that is a matter to be taken into account in the general assessment of the weight and reliability to be accorded to her evidence on other topics about which she claims memory, and should form part of the trial evidence.
5. Finally, Mr Anderson contended that quite apart from the "strict position" which Dr Fergie asserts exists under s 35 of the AHA, the evidence proposed to be led from her should be excluded under s 130 of the Evidence Act on the ground of public interest immunity, or as s 130 now describes the ground, as evidence of a matter of state. Section 130 relevantly provides:
"(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
…
(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
…
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:
(a) the importance of the information or the document in the proceeding;
…
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
…"
Counsel submits that the oral evidence already led, and witness statements filed, show the confidential nature of the relationship between Dr Kartinyeri on behalf of the Ngarrindjeri women, Dr Fergie and a tradition of restricted disclosure, and that the disclosure by Dr Fergie (or by other witnesses) of the restricted women's knowledge would prejudice the proper functioning of the Government, and in particular the protection of Aboriginal culture and heritage in the manner intended by the HPA. To that submission could be added the risk of prejudice to the functioning of Government of the State of South Australia in respect of the protection of Aboriginal sites, culture and tradition in South Australia.
33 Counsel for the Commonwealth respondents also contends that evidence as to the restricted women's knowledge, the subject of Appendix 2, should be excluded on the ground that it relates to matters of state.
34 Written submissions filed in advance of oral argument by counsel for the applicants agitates the Constitutional issues outlined in the s 78B notices. Those submissions make particular reference to Northern Territory of Australia v GPAO (1999) 161 ALR 318. However in light of the approach taken in oral argument by counsel for Dr Fergie, Ms Shaw QC, counsel for the applicants, concentrated her oral argument on matters of evidence and law raised by the respondents' arguments.
35 Both under s 35 of the AHA, and s 130 of the Evidence Act it is necessary to consider whether the divulging of the restricted women's knowledge would be contrary to Aboriginal tradition.
36 Section 35 prohibits, without the authority of the Minister, the divulging of information relating to Aboriginal tradition, in contravention of Aboriginal tradition. Two separate questions arise under the section, first whether the information sought to be divulged is information relating to Aboriginal tradition, and secondly whether to divulge that information would be contrary to Aboriginal tradition. The present case is, perhaps, extraordinary in that a Royal Commissioner appointed by the State of South Australia has reported that the information sought by the applicants does not relate to a genuine Aboriginal tradition, but to a fabricated story. That finding is very much in dispute in these proceedings. Without knowing the detail of the alleged Aboriginal tradition the Court is obviously at a considerable disadvantage in forming a view on that topic. Whilst the Royal Commissioner, on information which differs substantially from that before this Court reached such a conclusion, the conclusion is of no evidentiary force in these proceedings. The evidence presently before the Court does not justify even on a provisional basis, a finding on the topic. In my opinion therefore the Court should approach the present question upon the footing that the information sought about restricted women's knowledge is, or at least might be, about Aboriginal tradition of the kind which the Act seeks to protect from disclosure.
37 The question whether disclosure is contrary to Aboriginal tradition in many cases may be a question that is also difficult to decide without knowing the subject matter and content of the Aboriginal tradition about which information is sought. This raises an interesting question whether, in a case governed by s 35 of the AHA, the Act is to be construed in a manner which would permit a court to be informed of the tradition before ruling whether a witness should be obliged to give evidence about it in Court proceedings. However this is not such a case as it has not been suggested by Dr Kartinyeri, by Dr Fergie or otherwise that it is necessary to know the restricted women's knowledge to determine whether it would be contrary to Aboriginal tradition to divulge it.
38 The alleged Constitutional issues foreshadowed by the applicants will arise only if the information sought to be divulged is contrary to Aboriginal tradition. If not, s 35 has no application, and no question of inconsistency will arise.
39 In the present case there is information from a number of sources as to restriction said to arise under Aboriginal tradition in respect of the alleged restricted women's knowledge disclosed by Dr Kartinyeri. The parties have indicated that they do not wish to adduce any further evidence in relation to Aboriginal tradition that might restrict the disclosure of that knowledge. Dr Kartinyeri's evidence indicates that she was a custodian of the particular knowledge, and the evidence does not suggest that anyone else in the Ngarrindjeri community would be able to offer better evidence than she has done about restrictions imposed on its disclosure.
40 On the information available I hold that Aboriginal tradition confines the disclosure of the restricted women's knowledge (and related restricted knowledge possessed by other Ngarrindjeri women) to Ngarrindjeri women, chosen by those who possess the knowledge as appropriate to be trusted with it. However that restriction is not exhaustive. In situations judged appropriate by those who hold the knowledge, the knowledge may be disclosed to others including, in an exceptional case, to a non-Aboriginal male person with a special interest to receive it. The outer limits of circumstances that may be judged appropriate for disclosure are not revealed by the available information, but permitted circumstances include disclosure authorised by Ngarrindjeri women who the custodian or custodians of the information respect as Elders in the Ngarrindjeri community, where the disclosure is for the purpose of protecting that tradition or other Ngarrindjeri traditions. Disclosure in these circumstances should only be to the extent necessary to achieve the protection sought. Such a disclosure may be made even though it may result in the restricted women's knowledge being revealed to a particular man. In such a case the particular man is treated as having been granted permission in accordance with the Aboriginal tradition to receive the restricted knowledge.
41 The following pieces of evidence I think support and illustrate these conclusions. The written outline of submissions by Dr Fergie refers to more than ninety other pieces of evidence which I consider are also generally supportive of these conclusions.
42 Dr Kartinyeri maintains that she was told the restricted women's knowledge by her Auntie Rosie who passed it to her saying that the information was not to be told to men, in particular to white men. However, she has said that she was not told not to tell a white woman. On that basis Dr Kartinyeri considered it was in order to relate the information to Dr Fergie, Professor Saunders, and other white women assisting Professor Saunders and Mr Tickner.
43 Although Dr Kartinyeri did not consider it contrary to Aboriginal tradition to disclose the knowledge to the white women concerned with the preparation of the report for the purposes of the s 10 application, elsewhere in her evidence she indicated that the knowledge was not to be generally disseminated to all women. On the contrary, she said that the knowledge was only to be made available to Ngarrindjeri women selected by the custodian or custodians of the information as women who could be trusted with it. For that reason Dr Kartinyeri refused requests in late 1994 and 1995 to reveal the contents of the secret envelopes to a number of other Ngarrindjeri women.
44 In March 1995 the secret envelopes were in error delivered to Mr Ian McLachlan MP, the then opposition shadow Minister for the Environment in Parliament House, Canberra. Dr Kartinyeri publicly expressed outrage that a man should have gained access to the documents. Dr Kartinyeri referred to this incident in the course of being questioned about whether she would reveal what was in the secret envelopes to this Court. The following exchange occurred between her and the applicants' counsel:
"What I'm asking you is, as I understand it, that you are saying that you won't tell us in this Court what is in those secret envelopes because it's against your tradition, your law to do so?---Well it is against our tradition and our law, our culture, but we didn't give Ian McLachlan permission to read those things. It was done in a devious way, as far as I was concerned at the particular time, and I feel I've revealed as much - in fact more than I really should have in all this, and I've sort of lived to regret it, and I'm still going through this trauma, and I've been feeling very strong about my culture and my tradition all through my life, and for some reason I feel now that one man took that away from me…"