Kohen v Deerubbin Aboriginal Land Council

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This matter continues to have at its heart the probable inadequacy of the existing processes of the law to deal with the fundamental matters at issue in a practical, timely and, as far as possible, inexpensive way. 2 Dr Kohen, an expert engaged by the applicants in the principal proceedings and the applicant on the Notice of Motion, seeks by Notice of Motion to strike out the subpoena issued by the third respondent in the principal proceedings, the Deerubbin Aboriginal Land Council ("the Council"). 3 The applicant in the principal proceedings says that he and persons he is associated with, are the descendants of the original inhabitants of an area now covering much of the area of the north-western suburbs of Sydney and adjacent agricultural and other lands. 4 The Council was established under New South Wales law. In an effort by the State Parliament to address some of the historical wrongs done to Aboriginal people in New South Wales, land councils such as the Council were established on the basis that, for each particular area, the council would be quite "democratically" constituted, that is by election of councillors from the adult Aboriginal persons living within the area covered by the council. The Council succeeded, under New South Wales legislation, in acquiring title to the subject land which is about 25 acres of bushland in the Hawkesbury area. 5 The Council, having had access to the expert reports sought to be relied upon by the applicant in the principal proceedings, remains apparently implacably of the view that the applicant, Mr Gale, and those associated with him, do not have the historical legitimacy, as the descendants of the original owners of the land, which they claim. In these circumstances, the Council takes the view that it would be contrary to principle for it to involve Mr Gale and/or his group in the management of the land in question. Further, the Council takes the view that while only a small amount of land is involved in this case, should Mr Gale be successful, the consequences for a great deal of other land, either already owned by the Council or which it might wish to acquire, would likely be great. Accordingly, the underlying matter looks to be incapable of resolution by mediation, at least at this stage. 6 The applicant in the principal proceedings has filed an expert report of Dr Kohen. He is a senior lecturer in the field of Human Geography. Dr Kohen's report, on the very superficial examination I have made of it with a view to determining the present procedural question, appears to be couched mainly in terms of generalities. Furthermore, it is not closely footnoted in the style of the typical academic article. However, the Council seeks under the subpoena a number of other documents which have been referred to in wide terms as: "Field books, field notes, correspondence, emails, video and audio recordings, information stored in computers or any other documents reporting information which [Dr Kohen] relied upon in preparing or in assisting in the preparation of [certain documents contained in the report and the documents supporting it, which Dr Kohen relied on, as well as other limited material]." 7 The parties have engaged in some discussions. The applicant in the principal proceedings and Dr Kohen, who is represented also by the solicitors for the applicant, take the view that they cannot resist the gravamen of the subpoena (which was issued before the Court adopted the current rule that permits the issue of subpoenas to produce documents only with leave of the Court) if fair estimates of Dr Kohen's personal expenses and the associated expenses of clerical assistance he may need are paid. 8 It is clear that a great amount of work would be involved. Dr Kohen estimates an amount of $5000 would cover the value of his own time and that of associated expenses of the kind I have referred to. On the face of it, this is a reasonable estimate. 9 Accordingly, those parts of the Schedule to the subpoena which are struck out in the draft Schedule appearing at page 19 of the affidavit of Mr Toni of 2 March 2001 are struck out. I order, pursuant to O 27, r 4 of the Federal Court Rules, that the third respondent in the principal proceedings pay Dr Kohen his costs in the sum of $5000 of attempting to comply with the subpoena. The Notice of Motion is otherwise dismissed. 10 A request has been made for an order that the third respondent pay Dr Kohen's costs of these proceedings. These proceedings are probably a separate proceeding between Dr Kohen and the Council, and it is doubtful whether the prima facie prohibition in s 85A(1) of the Native Title Act 1993 (Cth) on parties' costs orders applies. In any event, I do not think this is a matter in which it is appropriate to make a costs order. Accordingly, the parties are to pay their own costs of this application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.