Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551

Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551

Neither legal professional privilege nor without prejudice privilege attached to the Sackett Connection Report or Sackett Overlap Report as sought by subpoena. The dominant purpose for creation of the Sackett Connection Report was submission to the State for consent determination negotiations, not confidential legal advice or adversarial litigation. The Sackett Overlap Report was not created at the request or for the confidential use of any client or applicant. Even if privilege had existed, it would have been waived by provision to the State, by subsequent conduct of the parties in exchanging similar materials, or would have lapsed when the applicant ceased to exist. YMAC, as custodian,...

Jurisdiction
Australia
Judgment Date
23 September 2019
Procedural Posture
Interlocutory (practice and Procedure – Objection to Production Under Subpoena) / Interlocutory Application; Determination of Objections to Production of Documents Under Subpoena
Outcome
Objections overruled; production ordered.
Legal Topics
['legal Professional Privilege' 'without Prejudice Privilege' 'waiver of Privilege' 'subpoena for Production of Documents' 'native Title Act 1993 (cth) – S 61 Applicants and Prescribed Body Corporate' 'expert Evidence – Anthropological Reports' 'representative Body – Powers and Role']
['practice and Procedure' 'native Title'] ['legal Professional Privilege' 'without Prejudice Privilege' 'waiver of Privilege' 'subpoena for Production of Documents' 'native Title Act 1993 (cth) – S 61 Applicants and Prescribed Body Corporate' 'expert Evidence – Anthropological Reports' 'representative Body – Powers and Role']

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Procedural Posture

Interlocutory (practice and Procedure – Objection to Production Under Subpoena) / Interlocutory Application; Determination of Objections to Production of Documents Under Subpoena

Legal Issues

  1. 1 ['Whether legal professional privilege or without prejudice privilege can be claimed over pre-existing anthropological reports (Sackett Reports) subpoenaed from a native title representative body (YMAC)' 'Who holds the asserted privilege in the context of native title claims—the applicant, prescribed body corporate, claim group, or representative body' 'Whether submission of anthropological reports to the State for consent determination negotiations waives any privilege' 'Whether the Sackett Reports are privileged and if so, whether privilege has been waived']

Ratio Decidendi

Neither legal professional privilege nor without prejudice privilege attached to the Sackett Connection Report or Sackett Overlap Report as sought by subpoena. The dominant purpose for creation of the Sackett Connection Report was submission to the State for consent determination negotiations, not confidential legal advice or adversarial litigation. The Sackett Overlap Report was not created at the request or for the confidential use of any client or applicant. Even if privilege had existed, it would have been waived by provision to the State, by subsequent conduct of the parties in exchanging similar materials, or would have lapsed when the applicant ceased to exist. YMAC, as custodian,...

Court Disposition

Objections overruled; production ordered.

Orders

  • ['Objections by Yamatji Marlpa Aboriginal Corporation to production and inspection of specified documents are overruled.' 'Leave granted for the second and third applicants to inspect and copy two specified Sackett reports forthwith.' 'No order as to costs of the interlocutory hearing, subject to any application by...