Attorney General for N.T. of Australia v. Honourable M.D.A. Maurice, Aboriginal Land Commissioner & Ors [1986] FCA 86

Attorney General for N.T. of Australia v. Honourable M.D.A. Maurice, Aboriginal Land Commissioner & Ors [1986] FCA 86

Waiver of legal professional privilege in the 1982 claim book, by its prior publication and distribution, did not effect a waiver of privilege attaching to background documents used in its preparation, unless those documents were specifically deployed in evidence or relied on before the Commissioner. The source documents retain privilege unless and until used in evidence in the proceedings. Privilege persists for documents later prepared by former agents if based on confidential information received during the agency relationship. Section 23E of the Aboriginal Land Rights (Northern Territory) Act does not preclude former employees from giving evidence before the Commissioner.

Parties
Applicant / Prosecutor: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA; First Respondent: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER; Second Respondent: THE CENTRAL LAND COUNCIL; Third Respondent: THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY; Fourth Respondent / Third Respondent (in G344/1985): ROBERT BRUCE REYBURN
Jurisdiction
Australia
Judgment Date
27 March 1986
Procedural Posture
Application for Order of Review and Writ of Mandamus (judicial Review) / Hearing and Decision at Federal Court Judgment on Review of Interlocutory Rulings During Ongoing Land Claim Proceedings
Outcome
Application for judicial review dismissed. Order nisi for writ of mandamus discharged.
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Discovery and Production of Documents, Aboriginal Land Claims
Administrative Law Evidence Aboriginal Law Legal Professional Privilege Waiver of Privilege Discovery and Production of Documents Aboriginal Land Claims

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Parties

THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA

Applicant / Prosecutor

THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER

First Respondent

THE CENTRAL LAND COUNCIL

Second Respondent

THE ABORIGINAL SACRED SITES PROTECTION AUTHORITY

Third Respondent

ROBERT BRUCE REYBURN

Fourth Respondent / Third Respondent (in G344/1985)

Procedural Posture

Application for Order of Review and Writ of Mandamus (judicial Review) / Hearing and Decision at Federal Court Judgment on Review of Interlocutory Rulings During Ongoing Land Claim Proceedings

Legal Issues

  1. 1 Whether publication and use of the 1982 claim book waived legal professional privilege over supporting/source documents
  2. 2 Whether legal professional privilege is waived by publication or only when a document is admitted into evidence
  3. 3 Whether privilege continues over documents prepared after cessation of employment assisting claim preparation

Ratio Decidendi

Waiver of legal professional privilege in the 1982 claim book, by its prior publication and distribution, did not effect a waiver of privilege attaching to background documents used in its preparation, unless those documents were specifically deployed in evidence or relied on before the Commissioner. The source documents retain privilege unless and until used in evidence in the proceedings. Privilege persists for documents later prepared by former agents if based on confidential information received during the agency relationship. Section 23E of the Aboriginal Land Rights (Northern Territory) Act does not preclude former employees from giving evidence before the Commissioner.

Court Disposition

Application for judicial review dismissed. Order nisi for writ of mandamus discharged.

Orders

  • The application for judicial review be dismissed.
  • The order nisi for a writ of mandamus be discharged.