FEDERAL COURT OF AUSTRALIA

Wilkes v State of Western Australia [2002] FCA 222

RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS, ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY, WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY AND GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY and CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS V STATE OF WESTERN AUSTRALIA AND OTHERS

NO. WAG 142 OF 1998

NO. WAG 141 OF 1998

NO. WAG 137 OF 1998

NO. WAG 138 OF 1998

NO. WAG 139 OF 1998

NO. WAG 140 OF 1998

NO. WAG 149 OF 1998

BEAUMONT J

8 MARCH 2002

PERTH

THE COURT ORDERS THAT:

1.                  The trial hearing dates fixed to commence on 4 June 2002 be vacated.

2.                  SWAL&SCAC be directed to file and serve a preliminary anthropological report by 4 June 2002.

3.                  Fix 4 June 2002 as the date for hearing the following:

(a)                Mr Bodney’s evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis;

(b)               SWAL&SCAC’s motion to strike out the Bodney Applicants;

(c)                Any claim by any respondent for appropriate declaratory relief;

(d)               Any application by any party for any directions, including any direction necessary as a consequence of the contents of SWAL&SCAC’s preliminary anthropological report;

(e)                Any application by any party for summary disposal of the whole, or any part, of the proceedings.

4.                  Liberty reserved to any party to apply on three days’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(ON APPLICATION TO VACATE HEARING DATE)

BEAUMONT J:

1                     The hearing of this application for a determination of native title was fixed in 1999 for hearing in September 2001.  In March 2001, upon the application of the Noongar Land Council, that hearing date was vacated and fresh hearing trial dates in this month were fixed.  In December 2001, again upon the application of the Noongar Land Council, this month’s hearing was vacated, and a fresh hearing, to commence on 4 June 2002, was fixed.

2                     A recognised Representative  Body, The South West Aboriginal Land & Sea Council Aboriginal Corporation (“SWAL&SCAC”), which was joined in February 2002 as a party to the proceedings, now seeks an order vacating the June hearing.

3                     The basis for the request for vacation of the June hearing appears from the affidavits of  Mr D D Pearce sworn 5 February 2002 and 7 March 2002.  Mr Pearce is CEO of SWAL&SCAC and was previously CEO of the Noongar Land Council, its predecessor in this matter.  According to Mr Pearce’s evidence, both representative bodies have experienced serious funding and constitutional problems, with the consequence that grave difficulties have been encountered in progressing these claims, beyond engaging in “a structured anthropological and historical research program …” during early and middle 2001 (par 10, affidavit sworn 5 February 2002).

4                     On the material before the Court, it seems that by 4 June 2001, SWAL&SCAC will be able to file and serve a preliminary anthropological report.  I will so direct.

5                     However, it is apparent SWAL&SCAC will be unable to do anything more than this by 4 June, given its recent involvement in what is plainly complex litigation.  This is hardly satisfactory from anybody’s perspective (given especially the fact that, already, several potential witnesses have died), but, for the moment, it is unavoidable.

6                     There are, however, a number of matters that ought to be dealt with during the period commencing on 4 June 2002, namely –

(a)                the taking of Mr Bodney’s evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis;

(b)               the determination of SWAL&SCAC’s motion to strike out the Bodney Applicants;

(c)                the determination of any other claim by any respondent for declaratory relief of the kind considered in these proceedings in the case of the University of Western Australia;

(d)               the giving of any directions required, generally;  and specifically, as now suggested by SWAL&SCAC, arising of its preliminary anthropological report, a direction that a joint case management conference be held in respect of the several native title claims pending in the South West Region of Western Australia;

(e)                Any application by any party for summary disposal of the whole, or any part, of the proceedings.

ORDERS

7                     I make the following orders:

1.                  The trial hearing dates fixed to commence on 4 June 2002 are vacated.

2.                  Direct SWAL&SCAC to file and serve a preliminary anthropological report by 4 June 2002.

3.                  Fix 4 June 2002 as the date for hearing the following:

(a)                Mr Bodney’s evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis;

(b)               SWAL&SCAC’s motion to strike out the Bodney Applicants;

(c)                Any claim by any respondent for appropriate declaratory relief;

(d)               Any application by any party for any directions, including any direction necessary as a consequence of the contents of SWAL&SCAC’s preliminary anthropological report;

(e)                Any application by any party for summary disposal of the whole, or any part, of the proceedings.

4.                  Reserve liberty to any party to apply on three days’ notice.

Associate:

Dated:              8 March 2002