Sampi v State of Western Australia

A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O'BYRNE, ELAINE O'BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD

REASONS FOR JUDGMENT (ON RENEWED APPLICATION TO ISSUE SUBPOENAS FOR PRODUCTION)

INTRODUCTION 1 In reasons for judgment given on 4 December 2000, I dealt with an application to issue subpoenas addressed to expert anthropologists seeking production of the following: "All: 1. handwritten or electronically recorded notes used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies; 2. sound recordings used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies; 3. video recordings used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies; 4. any other recordings of like nature used in gathering information for preparation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies;

5. notes of observations or transcript made during interviews with the applicants and other persons who provided information for the purpose of and incidental to the compilation of the report[s] and/or genealogies authored or co-authored by you in these proceedings (WAG 49 of 1998) whether or not that information was ultimately included in the report[s] and/or genealogies; in your possession, custody or control. All records made of all information and data gathered for the purpose of compiling the applicants' anthropology report, including any handwritten or electronically recorded notes, sound recordings, video recordings or any like record made of any observations made by the applicants' researchers and/or interviews or other communications made with any persons, including the applicants, who provided information for the purpose of and incidental to the compilation of the anthropologist's report, whether or not that information was ultimately included in the report." 2 On 4 December 2000, I made orders as follows: "1. That the solicitors for the applicants specifically draw to the attention of Ms Glaskin and Mr Bagshaw, in writing, the following provisions of the Federal Court guidelines for expert witnesses. 'There should be attached to the report, or summarised in it, the following: (i) all instructions, (original and supplementary and whether in writing or oral) given to the expert which define the scope of the report; (ii) the facts, matters and assumption upon which the report proceed; (iii) the documents and other materials which the expert has been instructed to consider.' 2. That the solicitors for the applicants request Ms Glaskin and Mr Bagshaw to confirm in writing as soon as practicable whether their reports complied with those guidelines and if not, the extent to which they did not do so, and the steps, if any, proposed to be taken to achieve compliance; subject however to any lawful claim for privilege in relation to (a) a communication between the expert and the solicitors (both ways) when such communication is made for the purpose of confidential use in the litigation; or (b) a communication between the applicants or their agent and third parties if made so as to obtain information to be submitted to the applicants' legal professional advisers for the purpose of obtaining advice upon pending or contemplated litigation. 3. That the solicitors for the applicants file and serve a copy of the correspondence referred to [in] pars 1 and 2 as soon as practicable. 4. Reserve liberty to the respondents to apply in connection with any question arising in respect of these orders. 5. Standover…generally the first respondents' application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow." 3 By letter dated 10 January 2001 filed in the Registry, Katie Glaskin responded as follows: "Please find here my written response to the above court order. (i) The genealogies prepared by Mr Bagshaw and myself (February 1999) were commissioned by the Kimberley Land Council, but without specific instructions from the Kimberley Land Council defining the scope of the genealogies, or with respect to Federal Court guidelines concerning expert reports. As the anthropologists we determined the scope of the genealogies which is summarised in the 'Guide to the Genealogies'. We note that the genealogies do not purport to represent every Bardi and/or Jawi claimant, nor the entirety of the community of native title applicants, but that in our opinion, they do represent a substantial portion thereof. This opinion is based upon our fieldwork and with reference to other unpublished genealogies we have been able to consult (Elkin, Tindale and Birdsell, Robinson). Where those have been referred to or relied upon as a basis for our opinions this is indicated on each genealogy through the use of different coloured fonts. (ii) The supplementary anthropological report (October 2000) co-authored by Mr Bagshaw and myself expressly refers to the Directions upon which it is based. As a supplementary report it relies, where relevant, upon the facts, matters, assumptions and opinions in the first report (Bagshaw 1999). 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 the first report (Bagshaw 1999) or the second supplementary report (Bagshaw and Glaskin 2000). (iii) I have never been instructed to consider any documents or materials in the preparation of either the genealogies or the supplementary report. Rather, relevant materials have been considered as per anthropological research methodology. All published and unpublished materials referred to or commented upon in the supplementary report are indicated in the body of the text as well as in the bibliography of the report. Wherever specific statements of fact of informants have been relied upon as a basis for opinions expressed in the supplementary report co-authored by Mr Bagshaw, such statements have been quoted and the relevant Bardi and/or Jawi individuals are clearly identified. I therefore consider that, allowing for the relatively early time at, and during which, the genealogies were compiled, they and the supplementary report fully comply with the Federal Court's guidelines." 4 By letter dated 15 January 2001 filed in the Registry, Geoffrey Bagshaw responded as follows: "Please find enclosed my written response to the above court order. (i) In October 1994 (i.e. some years before I was apprised of any Federal Court guidelines concerning expert reports) I was commissioned by the Kimberley Land Council to produce an anthropological report on the Bardi and Jawi native title claim. In this connection, I received no specific instructions defining the scope of my first report (February 1999) or the accompanying genealogies co-authored by Ms. Glaskin. Rather, it was left to me as the responsible anthropologist to define same. I therefore chose to explicitly summarise the scope of that report in section 1.1 thereof. Specific instructions are, however, appended to the second report (October 2000), co-authored by myself and Ms. Glaskin. (ii) I believe that both of the reports adequately set out the 'facts, matters and assumptions' upon which they are based. (iii) I have never been instructed to consider any documents or materials in the preparation of my reports. Rather, as an anthropologist, it has been entirely up to me to ascertain the nature and extent of relevant anthropological materials. In anthropological writing, bibliographies are the conventional form of listing all published and unpublished works referred to or commented upon in the body of a text. Both reports contain extensive bibliographies. My first report (pages 13 - 14) further contains an entire section identifying the principal ethnographic works - both published and unpublished - relied upon, or otherwise mentioned, in that document. In cases where my written opinions have directly relied upon the verbatim comments of Bardi and Jawi individuals, or, alternatively, have relied upon such comments to illustrate a particular point or finding, both the content and source of the relevant statements have always been clearly identified. I therefore consider that, allowing for the relatively early time at, and during which, my first report was researched and written, both reports adequately comply with the Federal Court's guidelines." 5 The State of Western Australia now renews its application for the issue of the subpoenas in the light of these responses.

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.

ORDERS 25 I make the following orders: 1. That the solicitors for the applicants request that Ms Glaskin and Mr Bagshaw state in writing as soon as practicable whether, in the course of the process of reasoning leading to the formation of their opinions, they considered any field information other than that specifically referred to in their reports, and if so, to identify specifically the information not so referred to. 2. That the solicitors for the applicants file and serve a copy of the correspondence referred to in par 1 as soon as practicable. 3. Reserve liberty to the respondents to apply in connection with any question arising in respect of these orders.

4. Standover generally the first respondents' application for leave to issue subpoenas, with liberty to restore the application upon such notice as a Judge of the Court may allow.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont.

Associate: Dated: 22 February 2001 G M G McIntyre Counsel for the Applicants:

Solicitor for the Applicants: Kimberley Land Council

Counsel for the First Respondents: R Webb

Solicitor for the First Respondents: Crown Solicitor for the State of Western Australia

Counsel for the Second Respondents K M Pettit

Solicitor for the Second Respondents: Australian Government Solicitor

Counsel for Western Australia Fishing Industry Council and the Eighth Respondents K White

Solicitor for Western Australia Fishing Industry Council and the Eighth Respondents Hunt & Humphrey

Counsel for the Seventh Respondent L Flynne

Solicitor for the Seventh Respondent: Blake Dawson Waldron

Date of Hearing: 15 February 2001

Date of Judgment: 22 February 2001