Daniel v State of Western Australia

Response to the Subpoena 9 On behalf of the first applicants, reliance is placed on Order 33, Rule 11(1) of the Federal Court Rules, and claims are made that the communications and documents representing communications, being those sought by the subpoena, are subject to both client legal privilege and public interest immunity. 10 On behalf of Mr Robinson, no claim for any privilege is made to resist the subpoena in whole or in part. However, he objects to being compelled to answer the subpoena in a way which he contends breaches the client legal privilege which the communication and the communications represented by documents are subject to. He also supports the view that they are subject to public interest immunity. He therefore supports the claim made on behalf of the first applicants. 11 The second and third applicants are not presently exercising the opportunity to participate in the hearing of the application. No submissions have consequently been received from them on this issue. It is relevant to say that, expressed broadly, the second and third applicants are persons who it is alleged at one time formed part of the one applicant group. That is of significance because it may be that in preparing his field notes Mr Robinson recorded communications with some of the persons who are now either second applicants or third applicants and who were formerly in the one applicant group now known as the first applicants. 12 In these circumstances I think that the appropriate course is to regard the claims made on behalf of the first applicants as applicable to the second and third applicants so as to enable the resolution of the issues of principle. In the event that a privilege is upheld, it would be subject in the case of a communication or document containing a communication of the second or third applicants or any of them, to the assertion by them of that claim and the opportunity by them to decide whether there are any factual issues to be argued relevant to the decision on that claim. 13 The first and fifth respondents dispute the claims for privilege. 14 Counsel for Mr Robinson also appears on behalf of the Anthropological Society of Western Australian Inc.

Client Legal Privilege 15 The claim made by the first applicants is not that client legal privilege endures in the communications or documents containing communications which are sought by the subpoena so as to make them permanently immune from disclosure. Rather the claim made is that until Mr Robinson goes into the witness box and his expert report is adduced in evidence, such communications or documents remain privileged, but at that point in time they then may be required of him. 16 "Client legal privilege" is the subject of provisions in Division 1 of part 3.10 of the Evidence Act 1995 (Cth). In Esso Australia Resources Limited v Federal Commissioner of Taxation (1998) 159 ALR 664, the Full Court of this Court held by majority that ss 118 and 119 of that Division did not apply so as to preclude disclosure of such documents at the stage of discovery. Essentially the reasoning of the majority was that the use by Parliament of the words "evidence is not to be adduced" read alone and in the context of the development of the legislation showed that Parliament intended those sections to apply only at trial. The effect of those sections is to apply "the dominant purpose test" to the existence of client legal privilege rather than the "sole purpose test" recognised at the common law. 17 In Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402, Sackville J held that s 126 of the Evidence Act (which also forms part of Division 1) permitted the loss of client legal privilege in respect of claimed documents constituting a source for an anthropological report. That section provides: "If, because of the application of section 121, 122, 123, 124 or 125, this Division does not prevent the adducing of evidence of a communication or the contents of a document, those sections do not prevent the adducing of evidence of another communication or document if it is reasonably necessary to enable a proper understanding of the communication or document." Sackville J held also that s 126 could not be read as simply incorporating unchanged the common law test of implied waiver as laid down in Attorney-General (Northern Territory) -v- Maurice (1986) 161 CLR 475. 18 It will be observed that s 126 uses the words "the adducing of evidence". There appears no reason (nor is one contended for) to distinguish the meaning of those words as they appear in ss 118 and 199 as interpreted in Esso by the majority of the Full Court and as they appear in s 126. 19 Whether or not a return of a subpoena is the same as discovery, it is here the case that response to the subpoena is not intended to adduce material at trial, only to adduce material for consideration by the parties with a view to its adduction at trial. By parity of reason from the majority view in Esso by which I am bound, I do not consider the provisions in Division 1 can therefore be applied to the present claim of privilege. 20 Accordingly here it is to the common law that reference must be made to determine what is the test to be satisfied to establish client legal privilege. 21 The rule at common law is that established in Grant v Downs (1976) 135 CLR 674, as applied and interpreted in subsequent decisions. In Grant v Downs it was held that client legal privilege will only attach where communications or documents are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings (see at 688). The privilege "requires a combination of dedication to the stipulated purpose and reasonable anticipation that litigation will ensue before it is attracted" (see at 689) "The character of the documents the subject of the claim will illuminate the purpose for which they are brought into existence" (at 689). A court has power to examine the document for itself (also at 689). 22 It is clear that client legal privilege is founded on the need to protect "full and unreserved communication" between a citizen and his or her lawyer. See Baker v Campbell (1983) 133 CLR 52 at 118, per Deane J. The communications or documents in question must be confidential between the relevant parties for the privilege to be attracted. See for further emphasis on this point Cross on Evidence, 4th Australian Edition, page 705, par 25255; P. Gillies, Law of Evidence in Australia, 2nd Edition, p. 436. 23 It is not in dispute that the privilege is capable of applying to communications between the client or his agent and third parties if made so as to obtain information to be submitted to the client's legal professional advisers for the purpose of obtaining advice upon pending or contemplated litigation: see Trade Practices Commission v Sterling (1979) 36 FLR 244 at 245, par (f).

Evidence 24 The first applicants' claim of privilege relies on an affidavit of Mr Robinson sworn on 13 September 1999. Mr Robinson was cross-examined on that affidavit.

The Communications with the expert 25 The communications in issue are principally communications from some of the first applicants. As I have said, however, there are possibly some communications from the second applicants and the third applicants and I have already stated that in the event of these being identified, if a privilege is found to exist, those parties should be given the opportunity to decide whether to make a claim and support it with argument. 26 If there are communications to Mr Robinson by persons other than any of the applicants, that is persons other than any client, there is no basis for a client based privilege. 27 Because the communications principally in issue are those of the first applicants as client, it is not necessary to make any definitive findings on whether Mr Robinson was or was not an agent of that client, and I accept submissions to that effect. It is sufficient that he was the third party to whom the communications were made. If the claim succeeded on that basis it would be even more secure if the true position was that there was a communication from a client to its own agent.

Were the communications made for the sole purpose of obtaining legal advice or for use in litigation? 28 It is to be noted that this is not a case where it is agreed that the material in issue was created for the sole purpose of legal advice or use in litigation: cf Towney (supra). 29 There are a number of categories of documents and I list them by sub-headings: (a) Notes (field notes). The field notes comprise six to eight notebooks being a mixture of:- (1) recordings of communications with solicitors and counsel for the purposes of legal advice; (2) communications from some of the first applicants for the purpose of heritage surveys; (3) communications from some of the first applicants to Mr Robinson concerning genealogical and other information relevant to the present claim; (4) observations by Mr Robinson. (I have already noted that in reference to communications from some of the first applicants I am presently notionally including the possibility that the second or third applicants may have been the authors of some of those communications). 30 The evidence also shows the following in relation to the nature of those communications: they are held by Mr Robinson on the basis he regards them as the property of the first applicants' so far as they relate to this case. 31 In the case of genealogies, they have been pressed onto a CD-ROM, a copy of which being supplied to the Aboriginal Legal Service as solicitors for the first applicants, and a further copy of which Mr Robinson holds. 32 Field books have not otherwise been sent by Mr Robinson to the Aboriginal Legal Service or to counsel for the first applicants or to any other lawyer. 33 The field books are in the form of notebooks containing continuous recordings of what the first applicants were saying to Mr Robinson. Sometimes what was recorded were verbatim quotes. Some quotations so recorded appear in Mr Robinson's report. 34 The use of materials from the notes in the expert's report to which I have previously referred was done without Mr Robinson seeking the consent of the person quoted. However it was done with the general consent of the first applicants as a group, in that the draft report was sent to the Aboriginal Legal Service as solicitors for the first applicants and considered at a meeting attended by Mr Robinson before finalisation. 35 I return to the four categories of content of the communications in the field notes which I have identified. Re (1) - Field notes involving communications between solicitor and client are privileged. Re (4) - Observations by Mr Robinson are not communications to which the privilege attaches. See the authorities cited below in relation to the first video. Re (2) - Field notes on heritage surveys. In his affidavit, Mr Robinson deposes that information recorded in the surveys was communicated by some of the first applicants to enable the solicitors for the first applicants to advise in relation to a proposed third party development. This evidence is uncontroverted, therefore field notes being communications to Mr Robinson by some of those clients made for that purpose would be privileged. 36 It may be necessary to consider to what extent publication of the heritage survey constituted a waiver of such privilege, a question of fact which can be approached later if necessary. 37 I add that I do not accept the submissions for the first respondent that there were no such communications to Mr Robinson or that such communications concerning heritage surveys were made as not confidential. The evidence in cross-examination relied upon on their behalf to support these submissions took me to evidence which refers to the heritage surveys themselves and in my view not to the communications to Mr Robinson in this respect. Re (3) - In relation to the remainder of the field notes, it was submitted for the first respondents, and I quote: "The documents in question include records of communications between members of the first applicant claim group and an anthropologist. Those documents, (as distinct from various reports compiled from them), were never intended to be supplied to a lawyer for advice or for the purpose of litigation. They were not intended to be surrendered by Mr Robinson till the end of these proceedings and then only to form part of the documentary record …such communications are outside both the "advice" and the "litigation" limbs of legal professional privilege: Interchase -v- Grosvenor Hall [1999] 1 QDR 141 at 153, 161, 162; Attorney-General -v- Maurice supra at 480, lines 15-19 per Gibbs CJ (relying on Grant -v- Downs supra), and at 487 per Mason and Brennan JJ; and Trade Practices Commission -v- Sterling supra at 245-6, especially Lockhart J's category (f)." 38 Several issues arise in relation to this primary submission. (A) The Federal Court practice direction concerning expert evidence requires that "an expert's written report must give details of … the … other material used in making the report". Furthermore it directs that "there should be attached to the report, or summarised in it …the facts, matters and assumptions upon which the report proceeds". In my view this direction did not require Mr Robinson as an expert anthropologist to attach field notes to the report where these have been summarised in it, or otherwise. The content of the direction does not make more likely that the communications would not be privileged. (B) No evidence was called from any of the applicants making the communications as to their intent in doing so. The intent for which the communications were made is therefore to be inferred from the only available evidence, being that of Mr Robinson. (C) From that evidence the only inference open, in my opinion, is that the communications in the remainder of the field notes involving communications from any of the first applicants were made to Mr Robinson for use by him in preparing a report for the purposes of the litigation. (D) In Interchase Corporation (supra) it was held unanimously by the Court of Appeal of the Supreme Court of Queensland that documents brought into existence or obtained by the expert to assist in preparation of the expert's statements were not the subject of client legal privilege. Thomas J (at 162) with whom de Jersey J agreed held that: "In general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject of legal professional opinion." 39 The reasoning of Pincus JA and of Thomas JA, with each of whom de Jersey J agreed, appears to have been founded on the need for the relevant communications to be between lawyer and client. In this case the communications are by clients to Mr Robinson for the sole purpose of the use for the purposes of the litigation. This is not a case where the communications sought are pre-existing documents as they were in Interchase. 40 I accept the submission for the first applicants that the Court needs to look at the particular communications to decide whether or not they were made in circumstances in which they attracted client legal privilege. If the communications do attract that privilege, it will only be lost by waiver. 41 I therefore distinguish Interchase Corporation because there the communications to the expert were in relation to the pre-existing documents not stated to be from the client asserting the privilege. 42 I return to the categories of subpoenaed items.

(b) Books (Heritage Surveys) 43 These constitute possibly 12 surveys for which Mr Robinson was instructed by the applicants' solicitors. Submissions for the first applicants accept that the heritage survey reports were provided to a third party (a development proponent) so that in such instance the sole purpose would not include legal advice or litigation and no privilege could attach.

(c) Video Tapes The first video recorded an occurrence during an inspection of an area. The recording was made by Mr Robinson for no purpose other than use in this proceeding. However, it was a recording by way of observation of the behaviour of an applicant. It is not a communication or document of communication to which the privilege attaches. See Commonwealth Federal Police v Propend Finance [1997] 188 CLR 501 at 508, 526 and 552, and Attorney-General (Northern Territory) v Maurice at 487. See also P. Gillies Law of Evidence in Australia, 2nd Edition, p. 440 and the authorities in footnote 41. In my view it is in the category of a fact observed and so attracts no privilege. The second video recorded what some applicants were saying in explaining the significance of a site. It was recorded at Mr Robinson's direction for the purposes of this litigation. I consider this may satisfy the sole purpose test. It is distinguishable from the first video because it is the record of an actual communication rather than a fact observed. However, it would require inspection by the Court to ascertain whether it was only recording events which occurred in public and so were not confidential.

(d) Audio Tapes 44 The first audio tape was made for a purpose ancillary to a heritage survey. It cannot therefore satisfy the sole purpose test. 45 The purpose for which the second audio tape was made is not established on the evidence. It does not therefore satisfy the sole purpose test.

(e) Other Documents 46 These comprise documents such as drawings, loose bits of paper, probably including annotated maps. There is no evidence that these were communications from the client to Mr Robinson and in my view it is not established they satisfy the sole purpose test. 47 Reference was also made to witness proofs or statements. These on their face would satisfy the sole purpose test. 48 Therefore, in relation to the subpoenaed material the sole purpose test would be satisfied only by the field book records of communications from any of the first applicants in the circumstances to which I have referred, and subject to inspection, possibly the second video.

Are the communications confidential? 49 It is also submitted for the first respondent that none of the communications in issue is confidential in the requisite sense since the intention was always that Mr Robinson would reveal the contents of at least some of them in his report and the contents of any of them if asked in cross-examination or evidence-in-chief, and the intention has always been to call Mr Robinson, which intention was confirmed by the incorporation of his report into the first applicants' statement of facts, issues and contentions. See Propend at 508, 526 and 552, Maurice at 487; Roberts, Evidence, Proof and Practice LBC Information Services 1998 at 200, and compare ss 118 and 119 of the Evidence Act. In Propend (supra) at 526, Toohey J referred to the fact that confidentiality of itself does not create the privilege. Certainly there must be a confidential communication, but it must be given for the requisite sole purpose. 50 In his affidavit Mr Robinson deposed that he gave an undertaking to the first applicants informing them that what was conveyed to him would not be disclosed without their permission to any person other than the solicitors for the purpose of the proceeding. 51 Knowledge by Mr Robinson of the future use of the information during the course of the hearing does not in my view negate the purpose of the communication and the intention to communicate it confidentially which is to be inferred from the evidence available relating to the time at which the communications came into existence. There is no evidence, for example, that the communications took place in non-confidential circumstances. 52 Furthermore, the approval of the first applicants for the future use of the report does not support, in my view, any inference of waiver of confidentiality of any of their communications at a point in time prior to such usage. 53 In relation to the second video I have already commented on the necessity for the Court to verify whether there was confidentiality in the circumstances of its making.

Waiver 54 The first applicants have voluntarily provided copies of certain statements referred to in the report of Mr Robinson to the first respondents and a copy of the typed field notes of John Laurence. I accept this voluntary disclosure does not result in any waiver of privilege on other documents such as the remainder of the field notes. 55 Waiver of privilege is to be implied and imputed by a court when by reason of some conduct on the privilege holders part it becomes unfair or misleading to maintain the privilege: See Attorney-General for the Northern Territory v Maurice (supra) at 487. As previously stated, the first applicants accept that when they call on the expert Mr Robinson to present his opinion, assumptions and facts on which the expert proceeded must be open to be explored. 56 It is said prior to that time no unfairness can exist by maintenance of the privilege. The first respondents dispute that on the basis that if disclosure only occurs then, they will have lost the opportunity to cross-examine any of the applicants on information which those applicants provided to the expert and on which he relied. The first respondents also rely on Hoad v Nationwide News (1998) 19 WAR 468 where Steytler J did not accept that no implied waiver could occur unless and until documents in question had been used in Court. He stated that principle with reference to "circumstances of this kind." The circumstances of this kind to which he referred were those involving partial disclosure of legal advice. His reasoning derives significantly when what was said in Maurice at 482 - 3, 498, 488, and 493. Nevertheless, the circumstances before him involving that partial disclosure are not the circumstances presently before me. 57 The relative unfairness is one which must be addressed in the context of the trial, if there is such unfairness to be found. The trial commenced in September and on the best estimate of the first applicant and first respondent will continue until April or August, 2000 with some intervals of non-hearing time. Delay in waiver only has these results, namely to possibly extend the time of the trial if witnesses are to be recalled for cross-examination and to impose a burden of preparation on the first respondents and other respondents in the heat of cross-examination. There is therefore to be weighed by me, what I perceive to be a forensic advantage sought by the first applicants in maintaining the privilege until a point in time when the first applicant's witnesses, who are authors of the relevant communications, are no longer available for cross-examination. 58 However, in weighing whether that is an unfairness I must consider, and I consider it is important, that none of the first applicants have been discharged so that further cross-examination of any of them concerning communications to the expert is still arguably a possibility. No unfairness, in my view, can therefore be inferred at this point in time because, if such cross-examination is allowed, it would address any arguable unfairness to the respondents, albeit at the cost of delay possibly to the progress of the trial. In any event, I consider there is a further barrier to waiver being implied. For waiver to be implied, there must have been some disclosure or use of the material, Maurice at 482 - 3 per Gibb CJ. There has to be some conduct touching the point of disclosure: Maurice at 488 per Mason and Brennan JJ citing Wigmore on Evidence. The privileged material has to be used: Maurice at 493 per Deane J and the effect of the use is such that there has to be an assertion of the effect of the privileged material or the disclosure of part of its contents. 59 It is well established that reference to a document in pleadings will not amount to a waiver if it is not re-produced in full: Maurice at 481. In Maurice it was held that the preparation, publication, tender and limited reference to the 1982 Claim Book did not impute to the Aboriginal claimants a waiver of their right to rely on client legal privilege in relation to documents which neither formed part of nor were expressly referred to in the Book. In my opinion the use of the expert's report to date in the proceeding is not such that there has been a relevant assertion of the effect of the privileged material and, in any event, the ratio of Maurice should be followed.

Public Interest Immunity. 60 A claim of public interest immunity requires a court to decide: "whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence: Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 38." 61 Relevant to that weighing exercise here will be the following two factors. Firstly, it is appropriate to take into account proper protection of minority rights including deeply held spiritual beliefs: Bowen CJ in Aboriginal Sites Protection Authority v Maurice (1986) 65 ALR 247 at 256. Secondly, it is relevant to consider whether disclosure would involve a breach of confidence. The concerns to that effect expressed on behalf of Mr Robinson and the Anthropological Society are akin to those expressed on behalf of the anthropologist, Mr R. B. Rayburn in the Aboriginal Sacred Sites Authority at 253 - 4. 62 The critical question is where the balance of the public interest lies, taking into account these matters and all other relevant considerations. 63 There are two features which I think are particularly important here. The first is that the first applicants have no objection to the discovery of all the subpoenaed materials at the time the expert report of Mr Robinson goes into evidence, so far as that report makes use of that subpoenaed material. It is not therefore maintained that there are any of the public interest considerations such as I have referred to which endure beyond that point in time. Secondly, the first respondents here expressly abjure that the response to the subpoena should in any way disturb the orders of the Court in respect of secret or culturally sensitive information. 64 The result is that the factors favouring non-disclosure in the public interest do not have predominant weight. They are out-weighed by the public interest in having the court not denied evidence of opinion expressed by the present witnesses upon which Mr Robinson himself relied. In my opinion, there is no public interest immunity attaching to any of the subpoenaed communications in the circumstances.

Conclusion The position which I consider pertains is therefore:- (1) The first applicants are entitled to maintain their client legal privilege in communications to Mr Robinson until such time as his expert report is introduced into evidence whereupon such privilege would be waived in respect of such communications referred to therein, but not otherwise. (2) Any communications by any of the second or third applicants to Mr Robinson, whether in his report or field-notes, should be identified by him so that those applicants are given the opportunity to assert any privilege they may consider is applicable to such communications. (3) Counsel for the respondents should have the opportunity to consider whether they wish to argue that publication of any of the Heritage Surveys constituted a waiver of privilege attaching to source material, being communications from the first applicants referred to therein. (4) The second video should be inspected by the Court to ascertain whether it was made in confidential circumstances. (5) The communications and documents otherwise referred to in the subpoena are not subject to any claim of privilege. (6) Counsel for the first applicants should be given a short opportunity to propose practical steps by which privileged material may be withheld but non-privileged material made available in response to the subpoena. I add the following: I have stated in these reasons that no witness of the first applicants being discharged, it remains open to the Court to consider ordering further cross-examination on presently privileged communications when privilege is waived on those communications as a consequence of tender of the expert report. In those circumstances, the first applicants may wish to consider whether there would be any prejudice to them in waiving the privilege after conclusion of the cultural evidence of their witnesses. This would enable the respondents to examine the formerly privileged material in the interval between the taking of cultural and expert evidence. This would avoid a delay in the court's time-tabling next year. It would mean the initial presentation of cultural evidence would not have been arguably side-tracked by cross-examination on such communications. It would also mean the respondents could be expected to return to court next year, or at some other date, better informed on the need to cross-examine any of the undischarged witnesses of the first applicants. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON J.

Associate: Dated: 25 October 1999 Counsel for the first applicants: M Barker QC W de Mars Solicitor for the first applicants: Aboriginal Legal Service of Western Australia (Inc) No appearance for the second applicants No appearance for the third applicants Counsel for the first respondents: K Pettit S Wright Solicitor for the first Respondents: Crown Solicitor's Office Counsel for the 2A respondents: J Allanson S Nash Solicitors for the 2A respondents: Australian Government Solicitors No appearance for the 2B respondents Counsel for the fourth respondents: M Gregory Solicitors for the fourth respondents: Minter Ellison Counsel for the fifth respondents: D Martino Solicitors for the fifth respondents: Jackson Macdonald No appearance for the sixth, seventh, and eleventh respondents No appearance for the eighth, twelve A and twelve B respondents Counsel for the ninth and tenth respondents: G Gishubl Solicitors for the ninth and tenth respondents: Jackson Macdonald No appearance for the thirteenth, fifteenth, sixteenth and seventeenth respondents Counsel for fourteen C respondents: R Butler No appearance for the nineteen B respondents No appearance for nineteen D respondents No appearance for the twenty second respondents Date of Hearing: 8 October 1999 Date of Judgment: 25 October 1999