FORREST & FORREST PTY LTD -v- MINISTER FOR ABORIGINAL AFFAIRS [2025] WASCA 149 (10 October 2025)

Thalanyji as a group is opposed to the construction of Weirs in the Ashburton River (otherwise known as the MARS Project).

The minutes of all discussion preceding the resolution are masked in the redacted minutes.

1. The appellant sought an unredacted copy of the minutes of discussions leading to the resolution so as to be in a position to test BTAC's case that the Thalanyji people are opposed to the project.[2] BTAC opposed the application, claiming that the redacted discussion preceding the resolution was protected by legal professional privilege.
2. The power to order the production of documents is conferred by s 34(5) of the State Administrative Tribunal Act 2005 (WA) (SAT Act), in the following terms:

The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.

1. That power is conferred in the context in which s 32 of the SAT Act provides that the Tribunal:

(a) is not generally bound by the rules of evidence or any practices or procedures applicable to courts (s 32(2)(a));

(b) may inform itself on any matter as it sees fit (s 32(4)); and

(c) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding (s 32(7)(a)).

The power is also conferred in the context of the main objectives identified in s 9 of the SAT Act, including for the Tribunal to make or review decisions fairly and according to the substantial merits of the case, and to act as speedily and with as little formality and technicality as is practicable.

1. The Tribunal found that the assertion that redacted parts of the minutes were the subject of legal professional privilege was sufficient to raise the claim at that stage of the proceedings.[3] There is no challenge to that conclusion in this appeal. The Tribunal left open the prospect that the claim of legal professional privilege might be challenged, in which case the Tribunal might review the unredacted version of the minutes.[4]
2. The Tribunal rejected the appellant's submission that any privilege had been waived by BTAC's reliance on the resolution recorded in the minutes in support of its contention that the Thalanyji people are opposed to the project.[5] In doing so, the Tribunal applied the principles identified by this court in Poland v Hedley.[6] The Tribunal concluded:[7]

In the present case, BTAC relies upon a resolution of the 2025 Common Law Holders meeting to evidence that the Thalanyji people oppose the weirs proposed by the [appellant].

I am not satisfied that by doing so, BTAC has put 'in issue' the contents of privileged legal advice given or 'necessarily' opens such advice 'to scrutiny'. Equally, I do not accept that by relying on the resolution, BTAC has 'impliedly made an assertion about the contents' of the advice given. It is the [appellant], not BTAC, which seeks to make an issue of, for example, the content of the advice given. There is nothing inconsistent between BTAC's reliance on the resolution and its claim for privilege over the legal advice which preceded it.

1. On 26 September 2025, the appellant instituted the present appeal against the order dismissing its application for production of documents. The sole ground of appeal in the appellant's case filed on the same day contends that the Tribunal erred by ruling that the claimed legal professional privilege had not been waived. The question of law identified in the ground is: 'whether the legal criterion for waiver of legal professional privilege was met by the established facts?'.
2. The court convened on 10 October 2025 to consider the appellant's applications for leave to appeal and for an urgent appeal order.

1. Under s 105 of the SAT Act, the current appeal can only be brought on a question of law and only if this court gives leave to appeal.
2. The principles governing the grant or refusal of leave to appeal are well established and were recently reiterated by this court in Medical Board of Australia v GLP.[8] The court recognised that the ultimate issue is whether the grant of leave is in the interests of justice having regard to all the circumstances of the particular case. However, in many cases it may be necessary for an applicant for leave to appeal to show that there is sufficient doubt about the correctness of the Tribunal's decision to justify the grant of leave to appeal and that to allow the error to go uncorrected would impose substantial injustice.
3. In the context of the requirement for leave to appeal from interlocutory orders of judges of the General Division of this court, it is recognised that this court exercises particular caution (sometimes referred to as 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure. It is also recognised that leave to appeal from a discretionary decision involving a matter of practice and procedure will not ordinarily be granted unless the application raises an issue of principle, a question of general public importance or the applicant for leave can demonstrate that significant injustice is likely to result if leave is not granted.[9] These observations apply with at least equal force to the grant of leave under s 105 of the SAT Act in respect of interim discretionary procedural decisions of the Tribunal. Indeed, the broad character of the Tribunal's procedural powers, and the provision for the Tribunal to act speedily and informally, reinforces the need for caution in the grant of leave to appeal against interim discretionary procedural decisions of the Tribunal. It is generally not in the interests of justice for Tribunal proceedings to be fragmented and delayed by the institution of appeals against interim discretionary procedural decisions of the Tribunal, which tend to impede the achievement of the main objectives of the Tribunal identified in s 9 of the SAT Act.

1. In our view, it is not in the interests of justice to grant leave to appeal in the present case, having particular regard to the following matters.
2. First, the Tribunal's decision that the claimed legal professional privilege has not been waived is not attended by sufficient doubt to justify the grant of leave to appeal. To the contrary, the Tribunal's decision is plainly correct.
3. In Poland, the court recognised that the assessment of whether a party has waived privilege is determined by considering whether, viewed objectively, the conduct of the privilege‑holder is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.[10] Where a party to proceedings makes an assertion as part of its case that, directly or indirectly, puts the contents of privileged documents in issue, or necessarily opens them to scrutiny, with the consequence that an inconsistency arises between the making of the assertion and the maintenance of the privilege, privilege will be impliedly waived. This may occur where the privilege‑holder puts the contents of the legal advice in issue by specifically relying on the contents of the advice (and not merely the fact of the advice) to vindicate its claimed state of mind.[11]
4. In the present case, BTAC has not relied on the content or the fact of legal advice to explain or vindicate the views of the Thalanyji people expressed in the resolution at the meeting of 25 March 2025. BTAC's proposal to adduce evidence of the fact of a resolution that may have been preceded and influenced by legal advice does not put the content of privileged communications in issue in the Tribunal proceedings. Merely adducing evidence of conduct which may have been engaged in after the receipt of legal advice is not inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.
5. Senior counsel for the appellant submitted that the motive of the Thalanyji people for opposing the appellant's proposal will be an issue in the Tribunal's review of the Minister's decision. However, counsel for BTAC reaffirmed at the hearing before us that BTAC does not seek to rely on the minutes of the meeting on 25 March 2025 to prove the motive of the Thalanyji people's opposition to the project, as opposed to the fact of that opposition. There is no inconsistency between relying on the redacted minutes of the meeting for that purpose and maintaining a claim of legal professional privilege over the redacted parts of the minutes. For the reasons given by the Deputy President, the Tribunal was correct to reject the appellant's submission that BTAC had waived its claimed legal professional privilege.
6. Secondly, even if, contrary to our view, the Tribunal's decision was in error, leaving the error uncorrected at this stage would not occasion any substantial injustice to the appellant. No substantive rights are impaired or otherwise adversely affected by the Tribunal's decision. Moreover, if the decision is wrong, and could be shown to have materially affected any ultimate decision to affirm the Minister's refusal of consent under s 18 of the AH Act, then the appellant could seek to raise the alleged error in an appeal from the Tribunal's final decision.
7. Thirdly, the grant of leave to appeal would potentially have the undesirable effect of fragmenting and delaying the resolution of the Tribunal proceedings, which already have a long and unfortunate history. If leave to appeal were to be granted then, even if an urgent appeal order were to be made, it is highly unlikely that this court could hear and determine the appeal before the hearing scheduled to begin on 3 November 2025. There is a real prospect that the grant of leave to appeal would result in the vacation of those hearing dates and the need to relist the Tribunal hearing at a time suitable for the parties some time after this court made final orders in the appeal.
8. Fourthly, the appeal does not raise any question of public importance or general principle. The Tribunal applied the principles relating to waiver of privilege identified by this court in Poland. The appellant does not seek to challenge the correctness of that statement of principle in this appeal. The only question of law sought to be raised by the appeal concerns the application of those established principles to the particular circumstances of this case.
9. Fifthly, even if this court were to set aside the Tribunal's finding that privilege had not been waived, that would not inevitably lead to BTAC being required to produce the unredacted minutes. The fact that the Tribunal would have power to order production of the unredacted minutes if privilege were waived would not require the Tribunal to order the production of those minutes. As the Tribunal correctly noted, the Tribunal does not approach the question of production of documents on the basis of principles of discovery which apply in courts, and establishing a legitimate forensic purpose for seeking documents is not sufficient to justify an order for their production. So long as the Tribunal has before it those documents which are necessary for it to fulfill its function, it is not required to allow the parties to engage in broad-scale enquiries seeking orders in the nature of discovery.[12]
10. In the present case, a material issue under s 18(3) of the AH Act will be whether the Tribunal should consent to the proposed use of the land having regard to the general interest of the community. Questions of what might have motivated or influenced a meeting of the Thalanyji people to express opposition to the appellant's proposal at a meeting in March 2025 would, at first blush, seem to be at best of peripheral relevance to that issue. Even if this court were to conclude that the claimed privilege had been waived, it would be well open to the Tribunal to decide not to require production of the unredacted minutes in the exercise of its broad discretion under s 34(5) of the SAT Act. The discretionary nature of the Tribunal's power to order the production of documents would make it inappropriate for this court to itself exercise the power on an appeal under s 105 of the SAT Act.[13] If the appeal were to succeed, it would be necessary for this court to send the matter back to the Tribunal for reconsideration of the question of whether it should order production of the unredacted minutes of the meeting conducted on 25 March 2025. That would result in further delay to the determination of the review of the Minister's decision under s 18(3)(b) of the AH Act, without any necessary ultimate procedural benefit to any party to the Tribunal proceedings.

1. In all the circumstances, at the hearing on 10 October 2025 we were not satisfied that it was in the interests of justice to grant leave to appeal. As such, there was no utility in making an urgent appeal order. For these reasons, we made the following orders:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.
   3. The appellant's application in an appeal filed on 26 September 2025 is dismissed.
   4. The appellant pay BTAC's costs of the appeal to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96.

[2] Forrest and Forrest Pty Ltd v Minister for Aboriginal Affairs [No 2] [2025] WASAT 101 (primary decision) [114].

[3] Primary decision [134], [139], [141] - [142].

[6] Poland v Hedley [2023] WASCA 69 especially at [72] - [75].

[8] Medical Board of Australia v GLP [2025] WASCA 87 [39] - [41].

[9] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [59] - [63].

[13] Scaffidi v Chief Executive Officer, Department of Communities [2017] WASCA 222; (2017) 52 WAR 368 [205], [210].