10 Not one of the Attorneys-General intervened in response to the first Notice preceding Chapman No. 2. However on 7 August 2000 the Attorney-General for the State of South Australia intervened, but no other Attorney-General did so.
11 After Ms Saunders had articulated the grounds upon which she relied for not producing the documents, the Court heard argument from counsel for the applicants, for the third, fourth and fifth respondents (the Commonwealth respondents), for the Attorney-General for South Australia and for Ms Saunders. Counsel for the applicants argued that the ruling in Chapman No. 2 was indistinguishable as Ms Saunders had been called to give evidence and stood in no different position to Dr Fergie. It was also argued that s 35 had no application upon a number of additional grounds. Insofar as Ms Saunders relied upon a breach of confidence, that gave rise to an issue to be determined under s 130 of the Evidence Act, again a matter ruled upon in Chapman No. 2.
12 Counsel for each of the Attorney-General for the State of South Australia, for the Commonwealth respondents and for Ms Saunders opposed an order for production of the documents. Each argued that s 35 applied to protect Ms Saunders against producing the documents. The thrust of their arguments was that the ruling made in Chapman No. 2 was distinguishable because Ms Saunders was, in substance, merely being asked to produce the documents in response to a subpoena, that being a situation which Northern Territory of Australia v GPAO had decided was not a field into which the Evidence Act entered: see Gleeson CJ and Gummow J at 323-324 [16-17], Gaudron J at 352 [135], McHugh and Callinan JJ at 371 [199] and Hayne J at 387 [254].
13 The arguments of all counsel assumed that if s 35 of the AHA applied, and if Ms Saunders were to produce the documents to the Court in the course of her evidence, she would "divulge" Aboriginal tradition in contravention of that section. Perhaps, in strictness, the mere production of the documents to the Court would not reveal their contents. If the contents were thereafter to be revealed, and the Aboriginal tradition thereby divulged, that would not in law be the consequence of Ms Saunders' action. However such a construction of s 35 was treated as a technicality, and Ms Saunders addressed the reality of the situation, namely that if the documents were produced to the Court it would follow from the ruling made in Chapman No. 2 that limited access would be given to others contrary to the wishes of the Ngarrindjeri custodians of the knowledge. I adopt the same approach.
14 I do not accept the submission that the ruling in Chapman No. 2 is distinguishable from the circumstances which have now arisen concerning Ms Saunders. Ms Saunders on 7 August 2000 was not merely responding to a subpoena to produce documents. That may have been the situation on 2 August 2000, but on 7 August 2000 she attended, albeit in response to a subpoena to give evidence, and after taking an affirmation, was in the course of giving oral evidence on the topic of the documents when she refused a request to produce them. Section 47 of the Federal Court of Australia Act 1976 (Cth) and FCR O 33, r 1 contemplate that the normal mode of adducing evidence at a trial will be through witnesses sworn or affirmed who give oral evidence. In the course of giving oral evidence a witness may be asked to produce documents within the witness' possession about which the witness has relevant knowledge, just as a witness may be requested to demonstrate the occurrence of a relevant event by physical movement of the body. The receipt of evidence of a witness is not confined to oral expression. In the course of giving oral evidence, evidence in documentary form may be identified and proved through a witness.
15 Once Ms Saunders was called to give evidence, the Evidence Act governed the taking of evidence from her, including evidence to be received by way of the production of documents and things: see s 36 of the Evidence Act which provides:
"(1) The Court may order a person who:
(a) is present at the hearing of a proceeding; and
(b) is compellable to give evidence in the proceeding;
to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.
(2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.
(3) A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence."
16 In Ramirez v The Trustee of the Property of Zoltan Sandor, A bankrupt, (unreported, SC NSW, Young J, 2990 of 1995, judgment delivered 22 April 1979) (Ramirez) it was held that:
"Under s 36 a court may order a person 'to give evidence and to produce documents'. It would seem that by using the word 'and' the section is directed to a person who is not already giving evidence. Accordingly, s 36(1) cannot be availed of to order the witness who is in the box to produce a document."
17 In my opinion I am compelled by an authority of the Full Court of this Court (with which I respectfully agree) to decline to follow the decision in Ramirez and to hold that s 36 does apply to a witness who is giving evidence in a trial, whether the attendance of that witness was pursuant to a subpoena to produce documents or otherwise.
18 The decision of the Full Court is Morey v Transurban City Link Limited & Another (1997) ATPR 41-571. The appellant had brought proceedings claiming that certain statements in a prospectus issued by the respondents contravened s 52 of the Trade Practices Act 1974 (Cth). Central to the proof of the allegations that the prospectus contained statements that were likely to mislead or deceive was a report prepared by consultants upon which aspects of the prospectus was based. The report was not voluntarily forthcoming from the respondents. During the trial the appellant subpoenaed three people to produce the report there being reason to believe that each of those persons had a copy. On the return of the subpoena the respondents argued that the subpoena should be set aside on various grounds including the lateness of the subpoenas. The trial judge made an order to that effect. This order was made during the cross-examination of one Mr Johnston who was an officer of a consultancy firm that had been engaged by the respondents to participate in the preparation of the report. Upon the ruling being made, counsel for the appellant called for the report. The call was refused, counsel for the respondents saying that the report was the property of the respondents, not the property of the witness or his consultancy company.
19 On appeal, the Full Court (Lockhart, Heerey and Sundberg JJ) held that an order should have been made under s 36 of the Evidence Act against Mr Johnston for the production of the report. The Full Court said at 43,932:
"The call that was made by the appellant's counsel at trial should have led to an order being made under this section [s 36]. Even assuming that the copy of the Report in Mr Johnston's office was the property of the respondents, ownership rights could not stand in the way of an order for production under s 36(1). The ownership of the Report by the respondents was not relevant to the question whether the Report should be produced. When a document or other thing is produced to the Court, no question of interference with ownership arises. The Court takes the object in question into its custody, not to exercise any rights of ownership, but to use it for the temporary purpose of resolving disputed questions of fact. That power is essential to the proper administration of justice and prevails over private property rights.
Questions of relevance, admissibility, privilege and confidentiality can of course be considered once the document or thing is produced to the Court. But nobody can be heard to say: 'The Court cannot see this document because it is my property'."
20 In my opinion the decision in Northern Territory v GPAO does not extend so far as to hold that the Evidence Act has no operation in respect of a witness who is giving oral evidence in a trial in a Federal Court, and who is asked to produce a document in the possession of that witness.
21 Rather than formally order Ms Saunders there and then whilst she was in the witness box to produce the documents - thereby placing her in contempt of Court if she maintained her refusal - I made the order to which these reasons relate which required that she produce the documents into the control of the Court within seven days, and adjourned her further examination. I took this course to allow the parties time to consider my ruling, and for Ms Saunders to reflect upon her position.
22 I indicated to the parties on 7 August 2000 that in the event that Ms Saunders maintained her refusal to produce the documents, and did not comply with the order, I would take no action on my own motion in respect of that failure. It would be for the applicants to decide what if any action would be taken. I indicated that if compliance did not occur and were the applicants to commence proceedings against Ms Saunders in respect of that non-compliance, I would not interrupt the trial of these proceedings to hear that application. In my opinion this long running trial should proceed without further delay, and if collateral proceedings arise against Ms Saunders, they should be heard by another judge.
23 The applicants also argued that s 35 of the AHA was invalid because of its inconsistency with other federal laws besides the Evidence Act 1995. First, the applicants contended that inconsistency exists with FCR O 33, r 11 which makes provision dealing with claims to privilege by a person ordered to produce documents or asked a question in the course of examination. In my opinion no relevant inconsistency arises, nor does O 33, r 11 "otherwise provide" within the meaning of s 79 of the Judiciary Act 1903 (Cth), as O 33, r 11 by its terms exempts a person from compliance with an order to produce a document or an obligation to answer a question where "sufficient lawful objection" is substantiated. If s 35 of the AHA otherwise applied, it would constitute a sufficient lawful objection, and O 33, r 11, by its terms, would operate to preserve the objection, not to defeat it. Further, O 33, r 11(4) provides that:
"This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest."