DONNELLY & ANOR v TENTERFIELD SHIRE COUNCIL & ANOR

2 The applicants claim an interest in the land the subject of these proceedings. They claim to hold native title to the land. Accordingly they claim, pursuant to s 23(6) of the Native Title Act the same procedural rights in relation to the activity the subject of these proceedings as if they held ordinary title to the land. The status of the applicants and the nature of their interest in the land appears to be one of the relevant issues in the proceedings. Nevertheless, the respondents object to the disclosure of the agreement upon a number of bases. Firstly , it is submitted by Mr C R Ireland, who appears for the second respondent, that the document is not relevant to any issue in the case. It is said to be a document of a private nature concerning a party to the litigation and other parties being strangers to the litigation. Moreover, he submits that the agreement is not relevant because it expressly provides that the parties make no admissions as to whether native title rights or interests exist or have been extinguished and they have further agreed that nothing in the agreement can be used in the prosecution of any native title claim by the Tabulam Bunjalung or by any person on their behalf.

3 In Waind v Hill & Anor (1978) 1 NSWLR 372, Moffitt P (with whom Hutley and Glass JJA agreed) described the three steps in the procedure of having documents brought to court by a third party in answer to a subpoena to produce documents. The first step is obeying the subpoena by bringing the documents into the court. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court in cross-examination or otherwise.

4 The stage in the process at which we have arrived in this instance is the second stage described by Moffitt P, that is to say, I am not concerned with the question of whether the document may be admitted into evidence. I am only concerned with the question of whether or not permission should be given to the applicants to inspect the document. Mr Ireland=s submissions relate to the third stage of the process, namely, the admissibility of the document into evidence. There is nothing in his submissions which suggest that the document ought not be produced and inspected by the applicants.

5 Moreover, it seems to me that the existence of a claim to native title by rival claimants to the applicants in these proceedings is relevant to the applicant=s claim to be the holders of native title to the land. The question of whether those rival claimants are pursuing their claim also appears to be relevant. The fact that no admission is made in a document does not mean that the document is not relevant. Whether the document is admitted into evidence on this basis is ultimately a matter for the trial judge, but as I have said, nothing in Mr Ireland=s submissions based on this ground suggest that the document should not, at this stage, be produced or that the applicant should not have access to it.

6 Secondly , Mr Ireland submits that the agreement is a confidential document. Clause 19.1 of the agreement provides: A Obligation The Parties will not disclose, directly or indirectly, any information to any person in relation to this Agreement or any of the transactions contemplated by this Agreement or any information which may come into their possession in relation to this Agreement without the prior written approval of the other Parties, other than to its employees, legal advisers, auditors and other consultants if those persons undertake to keep that information strictly confidential upon the same terms.@

7 Clause 19.3 provides: Direction to NNTT The Parties will direct the NNTT, at any time that this Agreement is given to the NNTT pursuant to the NTA, not to disclose to any person, directly or indirectly, this Agreement, any part of it or any part of the contents of this Agreement. This clause 19.3 will serve as such a direction to the NNTT.@

(The reference to the NNTT is a reference to the National Native Title Tribunal established under the Native Title Act .)

8 Clause 19.4 provides: A Freedom of Information Exemption (a) The Parties agree that this Agreement contains information: (i) concerning the personal and financial affairs of the Tabulam Bunjalung; and

(ii) that has a commercial value to Ross and which concerns the commercial and financial affairs of Ross.

(b) New South Wales will ensure to the extent lawfully possible that this Agreement in an exempt document under the Freedom of Information Act 1989 (NSW).@

9 The agreement is one, which Mr Ireland submits, having been made pursuant to s 34 of the Native Title Act , is given contractual efficacy by s 41(1) of that Act. Accordingly, he submits that public policy considerations require that the parties be held to their agreement, including that of confidentiality.

10 The Native Title Act contains provisions which are framed to encourage and to facilitate the entering into of negotiations and the making of negotiated agreements. It is in this context that s 41(1) operates so as to give full effect to any agreement thus made. If parties are to be encouraged to enter into negotiated agreements under the Act and in so doing they disclose confidential information to each other, they may be less likely to enter into such agreements if third parties can subsequently obtain access to such confidential information by issuing subpoenas to produce documents. The Tabulam Bunjalung are not parties to the present proceedings, neither is the State of New South Wales. The respondents to the present proceedings and the State of New South Wales object to the applicants having access to the agreement, consistently with the provisions governing confidentiality contained within it and which I have described. In my view the public policy considerations to which I have referred, together with the confidentiality provisions within the agreement itself, require that access to the document sought by the applicants should be denied.

11 The third submission of Mr Ireland is that the document relates to different land to that which is the subject of these proceedings. Mr Neumann, who appears for the applicants, submits, however, that the native title claim covers the whole of the local area including the subject land and the land the subject of the agreement. It seems to me that the extent of the area of land claimed may be of relevance, particularly on the question of the exercise of the court=s discretion in due course, should it come to that. I would thus not regard this factor as disentitling the applicant to access.

12 The fourth submission of Mr Ireland is that the document is one which came into existence in the course of settlement negotiations between the parties. Mr Ireland relies on s 131 of the Evidence Act 1995, which excludes evidence of communications made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute, or a document that has been prepared in connection with an attempt to negotiate a settlement of a dispute. It seems to me, however, that s 131 is directed to pre-settlement negotiations. It does not apply to agreements which are made as a result of settlement negotiations. Accordingly, I would not have been prepared to deny access on this ground.

13 There is one additional matter. Mr Neumann tendered a document being an addendum to a report of the Director of Environmental Services of the first respondent (the Council) to a meeting of the first respondent held on 18 December 1997. That document refers to the Aboriginal Heritage Protection Protocol which is contained in Schedule 2 to the agreement. The document then purports to summarise the protocol.

14 It seems to me that the parties to the agreement have waived confidentiality in respect of the Aboriginal Heritage Protection Protocol being Schedule 2 to the agreement. Accordingly, the applicants may have access to Schedule 2 to the agreement, however, access is denied to the remainder of the agreement.

I certify that this and the 5 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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