FEDERAL COURT OF AUSTRALIA
Table of Corrections
In paragraph 11 the word “justice” has been replaced with “injustice”.
(Walka Wani Oodnadatta Native Title Claim (SAD78/2013))
AUDREY STEWART (and another named in the Schedule)
(Walka Wani Oodnadatta #2 Native Title Claim
(Arabana No 2 Native Title Claim (SAD38/2013))
STATE OF SOUTH AUSTRALIA
AIRSERVICES AUSTRALIA (and others named in the Schedule)
DOUGLAS GORDON LILLECRAPP
DATE OF ORDER:
THE COURT ORDERS THAT:
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The applicants seek leave to appeal from the Court’s orders dated 15 August 2019 in Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding)  FCA 1282. The orders relate to the giving and publication of “male gender restricted evidence”, being information relating to Aboriginal law and custom of the Walka Wani People. The orders were made in the context of overlapping claims for determination of native title having been made over an area called the Oodnadatta Common. The hearing is scheduled to commence on 30 September 2019. Thus, there is a degree of urgency about the application which the Court has sought to accommodate by listing the application for leave to appeal promptly and immediately prior to any appeal before a Full Court if leave is granted.
2 For the following reasons, leave to appeal will be refused.
Summary of background
3 There is a comprehensive summary of the background to the proceeding in the primary judge’s reasons for judgment at -, which we gratefully adopt. In brief:
(a) The overlapping claims for determination of native title over the Oodnadatta Common are brought by the Arabana People and the Walka Wani People respectively. The competing claims for determination of native title cover a wider area than the Oodnadatta Common. They are being heard together to the extent that there is an overlap in relation to the particular area which comprises the Oodnadatta Common.
(b) By an amended interlocutory application, the Walka Wani applicants (whose claims for determination of native title are in proceedings SAD78/2013 and SAD220/2018) sought orders for the taking into account of particular cultural and customary concerns relating to both male gender restricted evidence and female gender restricted evidence. The Arabana People (whose claim for determination of native title is in proceeding SAD38/2013) have not sought any counterpart orders.
(c) The primary judge considered that it was appropriate to determine the amended interlocutory application insofar as it sought orders concerning male gender restricted evidence and to defer consideration of orders concerning female gender restricted evidence. The Walka Wani applicants, who seek leave to appeal, do not challenge the primary judge’s deferral of orders concerning female gender restricted evidence.
(d) In the proceeding below, the Walka Wani applicants sought an order defining male gender restricted evidence as follows:
Male gender restricted evidence” means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place from 30 September 2019 which information may not be disseminated to:
b. Aboriginal men who have not been initiated into the relevant men’s law that is to be the subject of the evidence;
(e) As the primary judge noted at , this order would have the effect of precluding any Aboriginal man who has not been initiated in the relevant Men’s Law from hearing the sensitive evidence or being informed of it.
(f) The Walka Wani applicants sought additional orders which would have the effect of limiting people who could be present at the hearing when male gender restricted evidence was given; who may read transcripts of that evidence; limiting the disclosure of that evidence; limiting the recording and transcription of such evidence, and specifying an arrangement, confined to males, by which best endeavours would be used to agree upon whether any of the evidence given in restricted session may be made available as a non-confidential transcript.
(g) The full terms of the order sought below by the Walka Wani applicants are set out at  to  of the primary judge’s reasons for judgment.
(h) The Arabana applicant and the State of South Australia opposed orders being made in the form sought by the Walka Wani applicants. In particular, in the case of the Arabana applicant, an objection was taken to the proposed restriction relating to Aboriginal men “who have been initiated into the relevant men’s law that is to be the subject of evidence” because that would preclude any member of the Arabana applicant from hearing, or being informed of, the male gender restricted evidence. They complained that the restriction would inhibit their ability to give instructions concerning, or to contest, that evidence.
(i) Accordingly, the Arabana applicant proposed certain variations to the proposed orders, the details of which are described by the primary judge at  to  of his Honour’s reasons for judgment. In essence, the proposed variations would permit two identified members of the Arabana applicant, upon each providing an undertaking to the Court, to hear the male gender restricted evidence for the purpose of giving instructions to the Arabana applicant’s male counsel and solicitor.
The primary judge’s reasons for judgment summarised
4 The reasons for judgment are comprehensive. It is sufficient to highlight the following relevant features.
5 First, the primary judge drew attention to the following provisions which were relevant to the amended interlocutory application:
(a) s 17 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which authorises the Court to order the exclusion of persons from a hearing;
(b) s 82 of the Native Title Act 1993 (Cth) (NT Act), which relevantly provides that, in conducting proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to “prejudice unduly any other part to the proceedings”;
(c) provisions in the Federal Court Rules 2011 (Cth) (2011 FCRs) concerning the Court’s obligation to take account of cultural and customary concerns in determining some applications; and
(d) provisions in the FCA Act concerning suppression or non-publication orders (ss 37AE, 37AF and 37AG).
6 Secondly, the primary judge set out extracts from earlier relevant decisions in which directions were given relating to gender restricted evidence, such as Western Australia v Ward  FCA 585; 76 FCR 492; Jango v Northern Territory of Australia  FCA 1230; Lake Torrens Overlap Proceedings (No 3)  FCA 899 and Northern Territory of Australia v Mr A Griffiths (Deceased) (No 2)  HCA 19; 93 ALJR 803. His Honour noted that some of those decisions related to earlier and differently worded provisions in both the Evidence Act 1995 (Cth) and the NT Act.
7 In particular, his Honour noted at  that, in 1998, s 82(2) of the NT Act was amended with the effect that, in contrast with the previous position whereby the Court was obliged to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, the amendment had the effect that the Court “may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings” (emphasis added).
8 Thirdly, the primary judge summarised the evidence relied upon by the Walka Wani applicants in support of their proposed orders.
9 Fourthly, at  to , the primary judge explained at some length and detail, the reasons why he considered that the proposed orders sought by the Walka Wani applicants would prejudice unduly the Arabana applicant because they would involve an abrogation of the natural justice hearing rule with respect to matters which appeared to be at the heart of the contest between the two claimant groups. In particular:
(a) His Honour emphasised the fundamental entitlement as an aspect of the natural justice hearing rule of a party to litigation to hear, or at least be informed about, evidence presented in the proceeding which is adverse to the party’s claim.
(b) The entitlement is not absolute but any departure from the fundamental entitlement should occur only where the Court is satisfied that the proper administration of justice warrants that departure.
(c) The primary judge accepted that the evidence the subject of the proposed restrictions was secret and sensitive and that the consequences or sanctions which may attend unauthorised disclosure of the sensitive material were significant. His Honour noted at , however, that the Court would have a “serious concern” if sanctions were visited on a person who had given evidence before it by reason of that evidence having been given as that could constitute a serious contempt.
(d) The primary judge described as another matter of concern the indication by one of the Walka Wani applicants (Mr Doolan) that if the proposed restrictions sought by the Walka Wani applicants were not made, Walka Wani men with the relevant knowledge would not give the evidence. As the primary judge stated, this could prejudice the Court’s ability to hear all the relevant and admissible evidence bearing on the competing claims.
(e) The primary judge explained why he did not accept the submission made on behalf of the Walka Wani applicants that natural justice requirements were sufficiently met by the availability of summaries of the proposed evidence and the proposed order which would require consultation between counsel and witnesses with a view to agreeing upon whether any of the evidence given in restricted session might be made available as a non-confidential transcript. The primary judge explained at  to  why he did not regard the latter matter as a “significant consideration”;
(f) The primary judge noted at  that the Walka Wani applicants had not identified any Walka Wani man or Western Desert man who would be willing to assist the Arabana applicant.
(g) His Honour explained at  to  why he considered that the contentions advanced on behalf of the Arabana applicant in support of their suggested variations to the proposed orders (as summarised at ) had “some force”.
(h) The primary judge’s acceptance of the need to vary the proposed orders along the lines of those suggested by the Arabana applicant essentially were that:
(i) there was an inconsistency in the position of the Walka Wani applicants in as much as they emphasised that it was “incredibly important” that the Court hear the detail of the restricted evidence yet, on the other hand, they contended that the Arabana applicant will not be “unduly” prejudiced by not being able to hear that evidence or be informed about it;
(ii) the more important that evidence was to the case of the Walka Wani applicants, the more significant was the prejudice to the Arabana People if the proposed restrictions applied without variation;
(iii) this was because there would be “a very grave impairment of the provision of natural justice to the Arabana People if not one of their number is permitted to hear, or be informed of, evidence which is fundamental to the claims advanced in competition with their own and which could be relied upon to defeat their own claim.”; and
(iv) both the identified Arabana elders the subject of the variations advanced by the Arabana applicant appeared to be responsible and able to appreciate the significance of the proposed undertakings.
10 Even though the primary judge varied the proposed restrictions, he urged the parties to continue discussing means by which the cultural and customary concerns of both applicant groups could mutually be accommodated.
Consideration and disposition of application for leave to appeal
11 The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court’s discretion include:
(a) whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and
(b) whether substantial injustice would result if leave were refused, supposing the decision is wrong.
12 Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation  FCAFC 139; 81 ATR 36 at - per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission  FCAFC 111 at  per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments.
13 Other considerations which are relevant to the consideration of the Walka Wani applicants’ application for leave to appeal were recently identified by the Full Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission  FCAFC 97; 242 FCR 153 at  to :
(a) leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure;
(b) appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution (referring to Hogan v Australian Crime Commission  HCA 21; 240 CLR 651 at  per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc.  HCA 39; 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and
(c) where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King  HCA 40; 55 CLR 499 at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge.
14 With these background guiding principles in mind, we consider that the primary decision is not attended by sufficient doubt to warrant it being reconsidered by a Full Court because:
(a) for reasons which we will develop below none of the proposed grounds of appeal has sufficient prospects to warrant leave being granted; and
(b) no arguable appealable error has been identified in the primary judge’s carefully reasoned judgment as to the appropriate balance to be struck in exercising his judicial discretion.
15 In addition:
(a) that discretion is on a matter of practice or procedure and, while there is no doubt that the orders give rise to grave and genuine concerns on the part of the applicants, they have not identified any issue of general principle which is at stake; and
(b) while the applicants genuinely believe that substantial justice will result if leave is refused, supposing the primary judge’s decision to be wrong, the weight to be given to this limb must take into account the distinct weakness of the proposed grounds of appeal.
16 Although we accept the Walka Wani applicants’ submission that litigation under the NT Act is not ordinary inter partes litigation (see Western Australia v Fazeldean (No 2)  FCAFC 58; 211 FCR 150 at ), and that the issue of connection has both physical and spiritual dimensions, the orders made by the primary judge below undoubtedly concern matters of practice or procedure. The distinction between such matters and substantive law was described in Salmond on Jurisprudence, 10th ed (1947) at p 476 and referred to approvingly in Adam P Brown at 176-177:
Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.
17 For the following reasons, we consider that none of the proposed grounds of appeal has sufficient prospects to attract a grant of leave.
18 This proposed ground is as follows:
1. The primary judge erred in:
(a) Failing to afford the Appellants with a reasonable opportunity to present their case by refusing to impose the restrictions sought by the Appellants on the persons who could be present at the hearing of the 'male gender restricted evidence' and on the persons to whom details of the gender restricted evidence could be disclosed in circumstances where:
(i) that evidence was of fundamental importance to the Appellants' case (Reasons at ); and
(ii) it was evidence that could not be adduced unless those restrictions were imposed (Reasons at ).
(b) Failing to find that it would be contrary to the interests of justice not to impose the restrictions sought by the Appellants in the proposed 'male gender restricted evidence' orders;
(c) Finding that the Appellants' summary of evidence of the proposed 'male gender restricted evidence' did not contain a description of the proposed restricted men's evidence sufficient to allow the Second Respondent to give instructions to its lawyers (Reasons at );
(d) Finding that it was not a significant consideration to take into account in deciding whether to make the 'male gender restricted evidence' orders sought by the Appellant that:
(i) the proposed 'male gender restricted evidence' orders would require counsel for the parties to use their best endeavours to agree upon whether any of the evidence given in restricted session may be made available as non-confidential transcript and whether a statement may be tendered as to the effect of the content of the remaining restricted material (Reasons at );
(ii) if the Court was not satisfied that counsel had used their best endeavours it could re-visit the proposed 'male gender restricted evidence' orders itself with a view to either varying the orders or indicating that it would give the restricted evidence no, or only limited, weight (Reasons at ); and
(iii) the Second Respondent's male counsel would have had the opportunity to fully test the Appellants' male gender restricted evidence' in cross-examination (Reasons ).
19 The Walka Wani applicants contended that the primary judge gave insufficient weight to their unchallenged evidence that, unless the restrictions sought by them were imposed, the men would not give that evidence because of their very real concern of serious physical and spiritual sanctions.
20 For the following reasons, we consider that there are insufficient prospects that this ground would be upheld if leave were granted. As we have emphasised above, it is important to bear in mind that the primary judge was exercising a discretion on a matter relating to practice or procedure. In such a case, appropriate self-restraint is required to avoid excessive fragmentation of proceedings (see In re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323 per Jordan CJ).
21 Moreover, no House v The King error has been identified. The Walka Wani applicants claim that the primary judge gave “insufficient weight” to the unchallenged evidence regarding the men’s genuinely held fears and concerns regarding sanctions strongly suggests that they are inviting the Full Court to come to a different view on the merits of their proposed orders without identifying any House v The King error in the primary judge’s exercise of discretion.
22 His Honour recognised that there was a need to balance two competing interests, namely the genuine cultural and customary concerns of the Walka Wani applicants while, on the other hand, recognising the fundamental entitlement of a party in litigation to procedural fairness, including knowing the evidence which is adverse to their rights and interests. More particularly, the primary judge correctly recognised that, in conducting the requisite balancing exercise, proper effect had to be given to the terms of s 82(2) of the NT Act, which empower the Court to take into account cultural and customary concerns, but not so as to prejudice unduly any party to the proceeding. No arguable appealable error has been identified in respect of the primary judge’s conclusion that the order proposed by the Walka Wani applicants unduly prejudiced the Arabana applicant.
23 For completeness, we should also state that we do not accept the contention that the primary judge gave insufficient weight to the sensitivity of the evidence or the potential consequences which might flow from unauthorised disclosure. This is made clear at  to  of the primary judge’s reasons for judgment.
24 We also reject the applicants’ contention that the primary judge considered that any sanctions imposed on the men for revealing secret and sacred knowledge would constitute a serious contempt of the Court. Rather, at , his Honour simply said that it would be a matter of serious concern for the Court if sanctions were visited on a person in such circumstances and that this could constitute a serious contempt of the Court. The primary judge then immediately noted Mr Doolan’s evidence that, if the proposed restrictions sought by the Walka Wani applicants were not made, then the men with the relevant knowledge would not give that evidence. It was in this context that the primary judge said that this was also a matter of concern to the Court, albeit of a different kind.
25 As to the Walka Wani applicants’ claim, as raised by proposed ground 1(b) (i.e. the primary judge erred in failing to find that it would be contrary to the interests of justice not to impose the restrictions sought by them as to male gender restricted evidence), we do not consider that there are sufficiently strong prospects of establishing any of the alleged errors in the balancing exercise conducted by the primary judge. We consider that the primary judge’s reasons for accepting that the suggested variations to the proposed orders were in the interests of justice are compelling and disclose no arguable appealable error.
26 The primary judge was plainly aware that the concepts of “interests of justice” and “the proper administration of justice” (which concepts are in s 17 of the FCA Act and s 37AG of the NT Act respectively) were relevant as he mentioned them at , , , ,  and  of his reasons for judgment. The power of the Court to make orders limiting the disclosure of evidence must necessarily take into account relevant provisions of the NT Act, where the Court is exercising jurisdiction under that legislation, including s 82(2), as the primary judge correctly recognised at , ,  and .
27 As we have emphasised, merely because judges hearing an application for leave to appeal may have weighed matters differently from the primary judge is insufficient to attract a grant of leave to appeal, yet that is what we are effectively invited to do by the Walka Wani applicants under the rubric of the issue whether the orders were “contrary to the interests of justice”.
28 As to proposed ground 1(c) and the contention that the proposed open summary of the restricted evidence was sufficient to safeguard the Arabana applicant’s interests, no arguable appealable error has been demonstrated in the primary judge’s reasons for rejecting that contention at  and  to . In particular, we reject the contention raised in the Walka Wani applicant’s reply submissions that ground 1(c) is an error of fact which resulted in the primary judge not taking into account a relevant consideration, namely that instructions could be obtained based upon the open summary of evidence. The primary judge plainly turned his mind to this contention and rejected it for the reasons he gave.
29 The applicants contended that if evidence was led in a restricted session which departed in any significant way from the summary, counsel for the Arabana applicant could object. We consider that counsel would be placed in an invidious and impossible position in this regard unless instructions could be given which would inform their professional judgment as to whether an objection should be taken.
30 Although at first glance it might be considered that there is some force in the Walka Wani applicants’ contention that it is difficult to see what further instructions the proposed uninitiated Arabana men could provide to their lawyers in relation to restricted evidence of Men’s Law about which they presumably knew nothing (because they are uninitiated), the contention goes nowhere in the absence of knowing the content of the evidence and whether it is probative of connection arising from customary law and tradition. We consider that the primary judge adequately explained at  of his reasons for judgment why there was no force in the Walka Wani applicants’ suggestion that the Arabana applicant could seek the assistance of an Aboriginal man from outside their claim group.
31 As to proposed ground 1(d), we consider that the primary judge gave correct and comprehensive reasons at  to  for concluding that order 5 of the orders proposed by the Walka Wani applicants did not cure the prejudice to the Arabana applicant of not being permitted to hear, or be informed of, the restricted evidence. No arguable appealable error of the kind in House v The King has been identified, including in respect of what the primary judge said at . The Walka Wani applicants contended that this paragraph reveals error. There, the primary judge adequately explained, without arguable appealable error, why the course the subject of proposed order 5 (which related to post-restricted hearing consultations), did not overcome the undue prejudice to the Arabana applicant. In any event, we consider that  represents only one of several reasons why the primary judge regarded proposed order 5 to be inadequate in avoiding undue prejudice (see, in particular,  to ).
32 Proposed ground 2 relates to the primary judge’s observations concerning the “flexibility” of traditional law and culture. It is as follows:
2 Finding that the alternative orders proposed by the Second Respondent involved only a "modest extension" of the so-called "flexibility" of the law and culture of the Appellants because the Appellants were prepared to disclose the restricted information to the primary judge and to non-Aboriginal male parties, lawyers and staff (Reasons at ).
33 The Walka Wani applicants contended that the primary judge erred in finding at  that it was pertinent that the law and culture of the Walka Wani applicants is sufficiently flexible so as to allow disclosures of the relevant evidence to some persons who are not initiated as Walka Wani, as reflected in the categories of persons listed in the proposed orders. It is no answer to say, as the Walka Wani applicants do, that it was made clear in their Statement of Cultural and Customary Concerns that the prohibition under the relevant Aboriginal law related to disclosure to women (whether Aboriginal or not), children (whether Aboriginal or not) and to uninitiated Aboriginal men, as opposed to all men. The point that the primary judge was making was not one which overlooked the distinction between Aboriginals and non-Aboriginals, but rather simply served to emphasise that the varied orders constituted only a modest extension of the flexibility under which information could be disclosed to certain non-initiated Walka Wani.
34 Furthermore, we accept the submission of the State of South Australia that the primary judge’s reference to “flexibility” may simply reflect the fact that the Walka Wani applicants themselves demonstrated that there was some flexibility when they amended their original interlocutory application to narrow the categories of persons affected by the proposed orders.
35 We are not persuaded that there is an arguable case that the primary judge took into account an erroneous and irrelevant consideration. Proposed ground 2 is not sufficiently arguable to warrant a grant of leave.
36 Proposed ground 3 is as follows:
3 Taking into account that it could constitute a serious contempt of the Court if sanctions were visited on a person who had given 'male gender restricted evidence' (Reasons ).
37 The Walka Wani applicants have not persuaded us that there is an arguable appealable error sufficient to warrant a grant of leave in the primary judge’s reference at  to the possibility of a serious contempt of Court occurring if punishment was inflicted on a man who gave men’s gender restricted evidence where unauthorised persons were present. As we have explained above, the primary judge’s reference to this matter did not form part of his essential reasoning for adopting the proposed variations. Rather, the reference is of a passing nature, to which the primary judge gave no weight and did not take the matter into account. This was because he immediately observed that the potential for a serious contempt of the Court to occur could not arise if the proposed variations were accepted because the evidence led by the Walka Wani applicants was that, in those circumstances, the evidence simply would not be given. Thus, in those circumstances, there was no risk of contempt. There is no arguable case that the primary judge took into account an irrelevant consideration in what he said at .
38 For these reasons, leave to appeal is refused.
39 Finally, we wholeheartedly endorse the primary judge’s encouragement to the parties to continue to explore and discuss means by which the cultural and customary concerns of both applicant groups may mutually be accommodated. During the course of the hearing, the Court raised the possibility of adjusting the present orders by deleting Order 2(f) and providing an opportunity for the Arabana applicant’s expert anthropologist to seek information from either of the two members of the Arabana applicant referred to in that order if male gender restricted evidence was given (without either of them being present) upon which the anthropologist required further input. It would be a matter for the primary judge to determine how and when this would occur, noting that we were told that a period of 1.25 hours had been set aside on the second day of the two week period for indigenous evidence to be given in the substantive proceeding. Mr Collett, who appeared for the Arabana applicant, was unable to obtain final instructions on this suggestion by the Court. The Court urges the parties to give earnest and early consideration to this possible alternative course (or some variant thereof) before the substantive hearing commences. If necessary, the primary judge could rule on it.
SAD 185 of 2019
Second Applicant (Walka Wani No 2 (SAD220/2013)
Dean Ah Chee
First Respondent (Arabana No 2 (SAD38/2013))
GREG WARREN (SNR)