CONCLUSION ON THE PRESENT APPLICATION
6 On behalf of the State, it is submitted that the responses made by Ms Glaskin indicate that the Guidelines have not been complied with in several respects as follows.
7 First, in respect of guideline (i), the State submits that Ms Glaskin did not attach, or summarise, the instructions given to her which define the scope of the 1999 genealogies. Although she states that there were not any "specific instructions … defining the scope of the genealogies …", she does say that the genealogies were commissioned by the Kimberley Land Council. It follows, the State argues, that this commission constituted her instructions and should have been disclosed.
8 Although there is some force in the argument, I have difficulty accepting it.
9 It is true that a literal distinction may be drawn between a "specific" instruction in a particular connection, and a "general" instruction. But I do not think that Ms Glaskin was seeking to take advantage of this distinction, when she said that she had been "without specific instructions … defining the scope of the genealogies …" (emphasis added). That is to say, I would read her response as stating that she was commissioned to report on the relevant genealogies by an "open" (i.e. without any particular direction from the client) retainer or commission. On that assumption, it would appear that the guideline (i) has been complied with in this respect. I will also assume, in the absence of any contrary indication, that the same position also applied to Ms Glaskin's supplementary (2000) report.
10 Secondly, in respect of guideline (ii), the State submits that Ms Glaskin did not attach, or summarise, all of the facts, matters and assumptions upon which either of her reports proceed.
11 The State notes her statement that -
"There is no other fact matter or thing upon which our opinions expressed in the second report rely upon other than that which is disclosed in either … report."
12 But, the State argues, what is mandated by guideline (ii) is disclosure of the facts, matters and assumption upon which the report proceeds, and not merely the facts (etc.) relied upon in the formation of the opinions expressed in the report.
13 In support of its argument, the State refers to statements made in both reports describing extensive fieldwork, which was recorded in fieldnotes, to which, at least to some extent, reference was not made in the reports.
14 Reference is made by the State to a statement in Mr Bagshaw's 1999 report that it is -
"…primarily based on 104 days of … fieldwork …. Most of my field research was conducted by Ms Glaskin [who] took … detailed verbatim notes of many of the interviews …."
15 The State further refers to a similar statement made in the second (2000) report.
16 The State argues that the whole of this fieldwork and all of the field notes must comprise "facts [and] matters … upon which the report proceeds". The State accepts that some of this fieldwork (and the related notes) may have been quoted directly in a report. But, given the amount of time spent by the experts in the field (104 days by Mr Bagshaw; 110 days by Ms Glaskin), it should be inferred first, that considerable parts of the fieldwork, evidenced in the fieldnotes, have not been mentioned in the reports; and secondly, that this unmentioned section of the fieldwork must have informed the experts' judgment to some extent at least in expressing their opinion.
17 (The State also contends for a breach of guideline (iii) in this connection, but I need not consider this in the light of my conclusion on guideline (ii). In any event, the available material indicates an "open" (i.e. non-specific) retainer.)
18 In my opinion, there is substantial force in the State's argument in these particular circumstances; that is to say, given the substantial fieldwork, presumably evidenced by substantial field notes, involved.
19 It will be recalled that in her letter dated 10 January 2001, Ms Glaskin stated that the expert opinion in the 1999 report "is based upon our fieldwork and with reference to other [material there mentioned]". Ms Glaskin proceeds to explain how other materials have, where relevant, been identified. She goes on to state that "[w]herever specific statements of fact of informants have been relied upon as a basis for opinions expressed …, such statements have been quoted and the … individuals clearly identified".
20 In my view, guideline (ii) is intended to ensure adequate disclosure of the basis upon which the expert opinion is formed. Where that opinion is (in whole or in part) based upon fieldwork, an appropriate description of that fieldwork ought to be provided, sufficient to enable a reader to understand fully the actual process of reasoning which led to the formation of the opinion. To take a hypothetical illustration, if a report were to selectively quote only field information which was consistent with the opinion expressed, without mentioning the existence of field information which was inconsistent with the opinion, guideline (ii) would not, I think, be satisfied. In other words, when the guidelines mandate disclosure of the material upon which the report proceeds, its aim is wider than revelation of information that supports the opinion. It requires disclosure of material which the expert considered but decided, for good reason, not to rely upon it, or considered that it was not necessary to refer to it, because it did no more than reinforce the conclusion reached.
21 In the present case, one is left with the impression that Ms Glaskin has not fully appreciated the scope of guideline (ii), believing that, so far as fieldwork information is concerned, her obligation extended no further than disclosure of what she actually relied upon, without needing to disclose the existence of any other field information of which she took account in the process of reasoning towards her conclusion. This would include field information that she considered, but which (a) she did not specifically mention in the process of forming her opinion because, in her view, it merely corroborated other information which she had quoted, or otherwise directly referred to in the report; or (b) she rejected as unhelpful because, in her view, it was unreliable or irrelevant. In my opinion, guideline (ii) requires disclosure of both (a) and (b). The level of disclosure is governed by what is appropriate to enable a reader to arrive at a proper understanding of the approach taken by the expert to the field information, information which is fundamental to the formation of the expert opinion in this class of case. At the same time, the proportionalities of the task should not be lost sight of; prima facie, information in category (a) ought to lend itself to a more generalised treatment than material in category (b).
22 Accordingly, I propose to direct that the solicitors for the applicants request Ms Glaskin to state in writing as soon as practicable whether, in the course of the process of reasoning leading to the formation of her opinion, she considered any field information other than that specifically referred to in the reports, and if so, to identify specifically the information not so referred to.
23 The State further submits that in the case of Mr Bagshaw, there has also been a failure to comply with guideline (ii). In my opinion, the position is the same as for Ms Glaskin. I propose to give the same direction here.
24 It is again said for the State that the issue of the subpoenas is now the most efficient and practical course. But, as I said in my earlier judgment, these questions should prima facie be considered in the environment of the expert's duty of candour to the Court. I will, however, stand over the subpoena application and reserve liberty to restore it should that ultimately become necessary.