FEDERAL COURT OF AUSTRALIA

Wilson on behalf of the Bandjalang People v Department of Land & Water Conservation [2003] FCA 307

NATIVE TITLE – whether native title applications over adjoining lands should be consolidated under Order 29 r 5 because evidence of witnesses to be called in the first application relates to the parcels of land covered by both applications – whether adjoining landowners should be joined as parties to the first native title determination application pursuant to s 84(5) of the Native Title Act 1993 (Cth) having regard to the provisions of s 86 of the Act

Federal Court Rules Order 6, r 17, O 29 r 5, O 78 r 31(2)(d)

Native Title Act 1993 (Cth) s 13(1), 61(1), 62(2)(a), 64(1), 64(2), 66, 67, 68(2)(a), 82(1), 84, 84(3), 84(5), 84(8), 86, 86(a), 86(a)(i), 86(c), 86A, 86G, 225, 253

Native Title Bill 1993 cl 79

Federal Court of Australia Act 1976 (Cth) s 23

Members of the Yorta Yorta Aboriginal Community v Victoria & Ors (2002) 194 ALR 538 referred to

Phillips v State of Western Australia [2000] FCA 1274 cited

Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 applied

Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia [2002] FCA 869 referred to

Bissett v Minister for Land & Water Conservation for the State of NSW [2002] FCA 365 referred to

Johnson v Gore Wood & Co [2002] 2 AC 1 applied

Re Ling; Ex Parte Ling v Commonwealth of Australia (1995) 130 ALR 596 referred to

Corporate Affairs Commission v Bradley 1974 1 NSWLR 391 referred to

Rushby v Roberts (1983) 1 NSWLR 350 cited

Shales v Lieschke (1985) 3 NSWLR 65 cited

Jack Woodbridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for the State of NSW & Ors [2002] FCA 1109 referred to

LAWRENCE JOHN WILSON ON BEHALF OF THE BANDJALANG PEOPLE v NSW MINISTER FOR LAND & WATER CONSERVATION & ORS

NG 6034 OF 1998

HELY J

9 APRIL 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The Notice of Motion filed on 10 December 2002 is dismissed with no order as to costs.

2.         On or before 30 June 2003 the applicant is to file and serve any amended Statements of Facts, Issues and Contentions (“Points of Claim”) setting out the facts and contentions relied upon in support of his claim for a determination of native title (“the claim”).

3.         The matters to be addressed in the Points of Claim are to include the matters in the schedule to the draft form of order circulated by Cridlands on 4 February 2003 insofar as they are relevant to the claim, or a statement as to why any such matter is not addressed.

4.         On or before 30 June 2003 the applicant is to file and serve any further reports by expert witnesses containing any further expert evidence upon which the applicant will rely, such reports to comply with the Court’s Guidelines for Expert Witnesses (“the applicant’s further experts reports”).

5.         Within 28 days of the service of the Points of Claim and the applicant’s further experts reports, whichever is later, any party who intends to participate in the trial and who wishes to dispute any of the facts set out in the Points of Claim, is to file and serve a document (“Points of Response”) which identifies:

(a)        the facts set out in the Points of Claim which are disputed by that party;

(b)        any additional facts or contentions relied upon by that party in opposition to the claim; and

(c)        any further or alternative orders sought by the party.

6.         On or before 30 June 2003 the applicant shall file and serve a statement or statements containing all the evidence of each proposed non-expert witness.

7.         Both matters are fixed for further directions on Friday 11 July 2003 at 9.30 am.  Well prior to that date in the Bandjalang #1 matter, the NSW Seafood Council and the States of NSW and Queensland should circulate to all other parties draft further directions containing a timetable for the provision of the respondents’ evidence, and such other matters as are considered appropriate.

8.         Liberty to apply on 7 days notice.

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

REASONS FOR JUDGMENT

1                     On 17 May 1996 Lawrence Wilson, on behalf of the Bandjalang people, and as a member of the Bandjalang Nation, lodged with the National Native Title Tribunal (“the NNTT”) an application for determination of native title numbered NG 96/16.  That application has proceeded in the Federal Court as NG 6034 of 1998 (“Bandjalang #1”).

2                     On about 10 July 1998 Lawrence Wilson, on behalf of the Bandjalang people lodged a further application for determination of native title with the NNTT numbered NG 98/19.  That application has proceeded in the Federal Court as NG 6107 of 1998 (“Bandjalang #2”).

3                     Bandjalang #1 is a claim that has been made over land and waters which include national parks, reserves, pockets of Crown land and State forests, in and around the town of Evans Head.  There are 93 parties to this claim, of whom 82 are parties on the basis of their interests in fishing.  Four are parties with interests in beekeeping and the remainder are largely government.  None of the respondents has been joined as a party on the basis of pastoral or agricultural interests.

4                     The area covered by Bandjalang #2 adjoins the area covered by Bandjalang #1.  Bandjalang #2 covers a much larger area of land and waters.  It covers the hinterland of what is claimed to be the traditional country of the Bandjalang people.  There are about 113 parties to Bandjalang #2 including four indigenous respondents.  There are intra-indigenous issues which are the subject of mediation under the auspices of the NNTT.

5                     There is evidence which suggests that there is only one traditional Bandjalang area which consists of the lands the subject of Bandjalang #1 and Bandjalang #2, and that the division of the traditional area into two claims was the result of legal advice.  The applicant’s statement of facts, issues and contentions filed on 20 August 2002 describes the country of the Bandjalang people as the areas comprised in Bandjalang #1 and Bandjalang #2.

6                     NSW Native Title Services (“the NTS”) does not receive sufficient funding from ATSIC to progress all native title matters in NSW simultaneously.  Accordingly, claims are “prioritised” in terms of funding. Bandjalang #1 is one of four claims in NSW which has been accorded a high priority status.  Bandjalang #2 has not been accorded that status.  I have been informed that as matters presently stand, no funding has been allocated for Bandjalang #2.

7                     The two claims are at different stages of their development within the Court.  Affidavits and expert reports have been filed in Bandjalang #1, and a program for the progression of that matter has been put in place, although it will need to be amended to allow for the filing of supplementary evidence on behalf of the applicants and, possibly, an amended Statement of Facts, Issues and Contentions having regard to the decision of the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria & Ors (2002) 194 ALR 538.  The respondent’s evidence has not been filed.  Bandjalang #1 is likely to be ready for hearing in 2004.  No evidence has been filed in Bandjalang #2, nor has a program been fixed for progressing the matter. 

8                     The experts’ reports filed in Bandjalang #1 were prepared so as to address the connection of members of the native title claim group in the lands the subject of Bandjalang #1, although “of necessity” the documents canvass general aspects of Bandjalang traditional law and customs and may be of relevance to Bandjalang #2, given the geographic and anthropological context.  However, there is evidence that should Bandjalang #2 ever proceed to a hearing, it is likely that the applicant would wish to file further expert evidence focusing particularly on Bandjalang #2 , but NSW NTS is not in a position to fund such further work at this stage.

9                     Many of the middens and other sites referred to in the experts’ reports in relation to Bandjalang #1 are located within Bandjalang #2.

10                  Section 86 of the Native Title Act 1993 (Cth) (“the NTA”) relevantly provides:

“Subject to subsection 82(1) the Federal Court may:

(a)       receive into evidence the transcript of evidence in any other proceeding before:

            (i)         the Court, or

                        …

            and draw any conclusions of fact from that transcript that it thinks proper.

(b)       …

(c)        adopt any … finding, decision or judgment of [the Court] …”

Subsection 82(1) of the NTA provides that the Federal Court is bound by the rules of evidence except to the extent that the Court otherwise orders.

11                  The Explanatory Memorandum for the Native Title Bill 1993 contained the following passage in relation to cl 79.  Clause 79 was the predecessor (in a more limited form) to s 86:

“This means that the Court can save time or resources by choosing not to reconsider matters that have already been canvassed in earlier proceedings.”

(See Phillips v State of Western Australia [2000] FCA 1274 at p 8.)

12                  Included amongst the respondents to Bandjalang #2 are a number of individuals who are members of the NSW Farmers Association (“the farmers”).  None of those persons has any interest in the lands the subject of Bandjalang #1, but they have interests of various types in parcels of land within the claim area of Bandjalang #2.  The interests include permissive occupancies, special leases and water licences.  They are represented by a firm of solicitors, Bruce & Stewart.

13                  I have before me a motion filed in Bandjalang #1 on 10 December 2002 on behalf of the farmers who are respondents to Bandjalang #2 seeking orders:

–          that they be joined as parties to Bandjalang #1 pursuant to s 84(5) of the NTA, or

–          that Bandjalang #1 and Bandjalang #2 be consolidated pursuant to Federal Court Rules Order 29 r 5.

14                  That application is made because of a concern on the part of the farmers that Bandjalang #1 is being brought by the same applicant on behalf of the same native group as has brought Bandjalang #2 in reliance on traditional laws and customs which are applicable to both claim areas.  It is submitted by the applicants to the motion that the provisions of s 86 are such as to give the farmers a special interest in Bandjalang #1 because evidence called, and decisions reached in these proceedings, may be received as evidence in Bandjalang #2. 

15                  The problem is said to be exacerbated by the age and ill health of certain of the elders.  “Early evidence” was taken from Mr Lawrence Wilson and Mrs Alvina Kapeen for that reason.  The evidence that was given by Mr Lawrence Wilson related to the Bandjalang country as a whole; it was not restricted to the area covered by Bandjalang #1, nor was any attempt made to confine Mr Wilson’s evidence in that way.  That is understandable, as any such confinement would have been artificial.  Mrs Alvina Kapeen’s evidence, however, related largely to an area known as “Goanna Headland”, which is situated on the coast to the south of Evans Head, within the area covered by Bandjalang #1.

16                  Sensibly, the parties agreed upon a modus operandi for the taking of the “early evidence” to accommodate the farmers’ desire to participate in the taking of that evidence.  By consent, an order was made for the joinder of one farmer as a party to Bandjalang #1 pursuant to s 84(5) of the NTA, but upon the basis that he cease to be a party pursuant to s 84(8) of the NTA at the conclusion of the hearing for the taking of early evidence from Mr Wilson and Mrs Kapeen.  The farmers were represented by senior counsel when the “early evidence” was taken.  There was no undue prolongation of the hearing of the “early evidence” arising from the farmers’ participation.

17                  The applicant opposes the making of the orders sought by the farmers’ motion.  He does so on the basis that the farmers have not established that they have an interest in the area the subject of Bandjalang #1, and on the basis that the NTA does not permit consolidation of the kind which the farmers seek.

18                  In the applicant’s submission, the existence of the s 86 power is irrelevant to the manner in which the Bandjalang #1 claim should be prosecuted.  Whether the applicant will seek to invoke that power in relation to Bandjalang #2, and how the Court would exercise its discretion (“may”) if the section were invoked, are purely matters of speculation at this stage.

Joinder

19                  These proceedings are an application for a determination of native title in relation to an area for which there is no approved determination of native title: NTA s 13(1), s 61(1).  A determination of native title is a determination of whether native title exists in relation to a particular area (the determination area) of land or waters, and if it does exist, a determination of:

“(a)     who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)       the nature and extent of the native title rights and interests in relation to the determination area; and

(c)        the nature and extent of any other interests in relation to the determination area; and

(d)       the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)        to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.”

NTA, s 225.

20                  Thus the Court’s task in Bandjalang #1 is to determine the non-indigenous and indigenous rights with respect to the lands comprised in the claim.

21                  Section 84 prescribes who the parties are to a native title determination application.  A person becomes a party to proceedings by force of s 84(3) of the NTA (but subject to s 84(8))  if his interests may be affected by a determination in the proceedings and a written notice is given to the Federal Court within the notification period (s 66) that the person wants to become a party to the proceeding.  The farmers did not give such a notice, hence their entitlement to become parties to the proceedings depends upon s 84(5) of the NTA.  Section 84(5) provides:

“The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings.”

22                  The “interests” which could be affected by a determination in relation to an application for native title, and thus entitle the person to become a party to the application under s 84(5) of the NTA are not confined to the interests referred to in s 253 of the NTA in the definition of the term “interest”, in relation to land or waters: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1.

23                  In Byron (supra), Black CJ said at pp 7-8:

“The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance.  The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.

There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need be proprietary or even legal or equitable in nature.  Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination.  To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party.  Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed.”

24                  The following observations of Merkel J at p 42 are similar in their effect:

“… when regard is had to the subject matter, scope and purpose of the relevant provisions of the Act standing as a party under the Act is restricted to persons whose interests:

·        may be genuinely, demonstrably and not indirectly affected by a determination of native title;

·        are not remote or so insubstantial that it will be mere speculation as to whether and, if so, how they may be actually affected by the determination; and

·        can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law.”

25                  Lockhart J said at p 19 that the meaning of affectation of interest is not encased in technical rules, and no narrow construction of the expression is called for.

26                  The form in which the NTA is now couched differs from the form which it took when Byron (supra) was decided.  Then, a consequence of a person becoming a party was that the person had the benefit of an express statutory obligation imposed on the NNTT of ensuring that every party had a reasonable opportunity of presenting its case.  Further, the opposition of any one party to an agreed determination of the NNTT meant that the application had to be referred to the Federal Court for judicial decision.  The relevant legislative provisions can be found in Byron at pp 28-32.

27                  Now, the fact that a person becomes a party to proceedings in the Federal Court carries with it an entitlement to a reasonable opportunity of presenting the person’s case without the need for express statutory provision to that effect.  A party to the proceedings may be involved in mediation conferences held pursuant to Division 4A of NTA.  The purpose of a mediation by the NNTT is to assist the parties to reach agreement as to the matters which in the absence of agreement would be required to be determined by the Court under s 225 of the NTA: NTA s 86A.  One party can effectively veto the making by the Court of a consent determination: NTA s 86G.

28                  Accordingly, the decision of the Full Court in Byron is not affected or diminished by the subsequent changes in the Act.  In Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia [2002] FCA 869 French J at p 6 referred to a number of decisions given after the 1998 amendments to the NTA which continued to apply the Byron test on the nature of the interest sufficient to support joinder.

29                  There is no reason for giving a narrow or confined operation to s 84(5) particularly as the Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings: s 84(8).  But it is difficult to see how a person who does not assert any interest in the claim area, whether of a proprietary nature or otherwise, and who does not assert any connection with the claim area, has an interest which may be affected by a determination of native title in relation to the claim area.

30                  Leaving aside s 86, it may be that the farmers have an indirect and non-specific interest in the outcome of Bandjalang #1 as the decision might provide a “precedent” (using that term in a loose sense) in relation to issues which may arise in relation to Bandjalang #2.  Whether and to what extent this is likely to be so is a matter of speculation.  In any event, an interest of this type does not satisfy the tests enunciated in Byron.  Such an interest is not capable of clear definition, and it is indirect, or remote.

31                  The power which the Court has by virtue of s 86(a) of the NTA to receive into evidence in Bandjalang #2 the transcript of evidence in Bandjalang #1 does not lead to the conclusion that the farmers’ interests may be affected by a determination of native title in relation to Bandjalang #1.  But the Court deciding Bandjalang #2 is empowered by s 86(c) of the NTA to adopt any finding, decision or judgment of the Court in Bandjalang #1.  Whether the Court deciding Bandjalang #2 will ever be asked to exercise that power, and if so, whether the Court would be likely to do so cannot be known at this stage.  Any Court asked to exercise the s 86(c) power would have to take into account any opposition by the farmers to its exercise, and any injustice which would accrue to the farmers or other respondents if the power were to be exercised.

32                  In Bissett v Minister for Land & Water Conservation for the State of NSW [2002] FCA 365, Tamberlin J pointed out that it would be wrong to equate affectation by “a determination in the proceedings” with that of a final determination of native title rights which is provided for in the definition of “a determination of native title” in s 225 of the NTA.  The actual decision in Bissett (supra) was followed by Hill J in Jack Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for the State of NSW & Ors [2002] FCA 1109, but his Honour observed (without needing to decide the point) that if the word “determination” should be given a broader meaning in the context of s 84(5) than the ultimate determination of native title, then there is some difficulty in drawing a line as to what “determination” might mean.

33                  The only determination which the farmers relied upon as being one by which their interests may be affected is the final determination of the Court in Bandjalang #1.  The farmers’ “interests” are their occupancy rights in relation to the lands comprised in Bandjalang #2.  Those interests will not be directly affected by the determination ultimately made in Bandjalang #1.  But the farmers’ interests may be affected by decisions made in Bandjalang #1 as to, eg, the connection between the members of the claim group and “Bandjalang country” if the Court hearing Bandjalang #2 chose not to reconsider matters that had already been decided in Bandjalang #1.

34                  The possibility that this might occur is not sufficient to establish that the farmers’ interests may be affected by a determination in Bandjalang #1.  It is not that determination which may affect their interests.  If there is any affectation of the farmers’ interests it will be because the Court in Bandjalang #2 decides to adopt findings made in Bandjalang #1 without reconsideration of the matter.  Any interest which the farmers have in the determination made in Bandjalang #1 is at best indirect and remote, and, at this stage, it is mere speculation as to whether they may be actually affected by the determination.

35                  Party status entitles the party to participate in the mediation process for which the NTA provides, and to veto a proposed consent determination.  It would be inconsistent with the scope and purpose of the NTA for the farmers to be accorded party status in Bandjalang #1 and thus to receive those entitlements, when their interests are in relation to lands within Bandjalang #2.

Intervention

36                  An alternative course, subject to questions of power, would be to permit such of the respondents to Bandjalang #2 who wish to do so to intervene in Bandjalang #1 for the limited purpose of questioning witnesses called in Bandjalang #1 upon their evidence insofar as it touches and concerns Bandjalang #2.

37                  Order 6 r 17 of the Federal Court Rules deals with intervention, but it is clear from sub rules (3) and (4) that it does not authorise intervention to allow the participation which the farmers seek.  There may be a question as to whether the Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to permit the farmers to intervene in Bandjalang #1 even though they do not come within Order 6 r 17, and even though they are not entitled to party status under s 84(5) of the NTA.  There are decisions of the Supreme Court of NSW which cast a shadow over the extent of a Court’s inherent jurisdiction to permit intervention: see, eg, Corporate Affairs Commission v Bradley 1974 1 NSWLR 391; but cf Shales v Lieschke (1985) 3 NSWLR 65 at 80-81, 89-90; Rushby v Roberts (1983) 1 NSWLR 350, 353, 360.  No submissions were put on this point.

38                  In the absence of argument I do not propose to pursue this possibility further beyond observing that as presently advised, I am not satisfied that I have the power to permit intervention in proceedings in circumstances outside the provisions of Order 6 r 17, or if I have that power, that it would be appropriate to exercise it for a purpose unrelated to the just disposition of those proceedings.  A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party: Corporate Affairs Commission v Bradley (supra) at 396.  If the putative intervener is not within s 84(5) then he should not be joined into the proceedings.

Consolidation

39                  Order 29 r 5 provides:

“Consolidation

5          Where several proceedings are pending in the Court, then, if it appears to the Court –

            (a)        that some common question of law or fact arises in both or all of them;

            (b)        that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or

            (c)        that for some other reason it is desirable to make an order under this rule,

            the Court may order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them.”

40                  A native title determination application necessarily relates to a particular area of land.  If an order for consolidation of the applications were made, the two applications would be merged into one, with respondents to each application becoming respondents to the consolidated application.  A necessary consequence of an order for consolidation being made would appear to be that the land the subject of the consolidated proceedings would be the two areas the subject of the existing applications.  In order to achieve that result, amendment of the applications in this and other respects would be required.

41                  Section 64(1) of the NTA provides that an amendment to an application must not result in the inclusion of any area of land or waters that was not covered by the original application.  However, s 64(2)of the NTA provides for an exception where the application is a claimant application and the amendment combines the application with another claimant application.  Each application is a claimant application: NTA s 253.  If Mr Wilson sought to combine the two claims, that would not be prohibited by s 64(1) as the exception to subsection (1) for which s 64(2) provides would be applicable.  But can the Court force Mr Wilson to combine the two claims, and should any such power be exercised?

42                  The NTA is structured on the basis that it is for the applicant to define or describe the area covered by his application: see, eg s 62(2)(a).  Under s 67 of the NTA the Court is bound to make such orders as it considers appropriate to ensure that overlapping claims, to the extent that they cover the same area, are dealt with in the same proceeding.  Section 67 recognises or creates a power in the Court to force a combination of claims in the circumstances in which the section applies.  Section 67 has no relevant application in the present circumstances.

43                  The farmers have not contended that the bringing of the two claims constitutes an abuse of the process of the Court.  If that was their contention, then the appropriate course would have been to move for a stay of Bandjalang #2 upon the basis that the claims made in Bandjalang #2 could, and should reasonably, have been raised in Bandjalang #1.

44                  That is not the course which the farmers have adopted.  That observation is not intended as a criticism of the farmers or their lawyers, because their objective is a more limited one namely, to have the opportunity of cross-examining on evidence to be given in Bandjalang #1 which at some future time might be tendered against them in Bandjalang #2.

45                  I should add, if only parenthetically, that it is not obviously the case that the division of the claim into two is oppressive given the differences in the types of area covered by the two claims, and the differences in the persons who have interests in these areas.  In Johnson v Gore Wood & Co [2002] 2 AC 1 at 59 Lord Millet recognised, admittedly in quite a different context, that it may in a particular case be sensible to advance claims separately, particularly where the respondents to the two claims are different.

46                  The power to consolidate proceedings is a discretionary power.  In Re Ling; Ex Parte Ling v Commonwealth of Australia (1995) 130 ALR 596 at 600 Hill J outlined the criteria by which the Court should be guided when considering an application to consolidate proceedings.  The structure of the NTA is such that I have real doubts as to whether the Court has power to force a combination of native title claims except in the circumstances referred to in s 67, and if it has no such power, then it cannot effectively order consolidation of proceedings which relate to separate claims.  Even if there is such a power, it has not been shown that the prosecution of two claims rather than a combined claim is an abuse of the process of the Court, and that is a highly relevant factor in determining whether the two claims should be consolidated.  An order for consolidation is particularly inappropriate in the present case as consolidation would force the different respondents to the two claims to participate in much larger proceedings relating to areas in which many of the respondents have no interest.  An additional reason for refusal of consolidation is that it might impede the prospects of a negotiated settlement being arrived at in relation to either claim and may unnecessarily complicate the mediation process.

47                  For these reasons I refuse the application to consolidate the proceedings. 

Concurrent trials

48                  Order 29 r 5 allows for an order to be made that different proceedings be tried at the same time, even if the proceedings are not consolidated.  I have considered whether I should order that Bandjalang #1 and Bandjalang #2 be heard together for the purpose of taking the evidence of any witness in Bandjalang #1 whose evidence bears on both applications, on the basis that the evidence of those witnesses shall be evidence in both proceedings.  Once the evidence common to both claims has been taken, the applications could once again proceed on their separate paths.

49                  Ideally, evidence which is common to the two applications should be given once only, and all interested parties should have an opportunity of testing it.  However, there are a number of problems associated with the procedure referred to above.  The first is that Bandjalang #1 has progressed to a point where it will be ready for trial in the relatively near future.  Bandjalang #2 is nowhere near that point.  Bandjalang #2 is still in mediation by the NNTT.  The applicants in Bandjalang #2 have not progressed to the point of filing a statement of facts, issues and contentions. Second, the proposal assumes that I will be the judge who determines both Bandjalang #1 and Bandjalang #2.  The farmers have already foreshadowed that if I make findings of fact in Bandjalang #1 which are adverse to their interests, there will be an application that I disqualify myself from hearing Bandjalang #2.  Third, there is a problem of determining which witnesses are common to both applications, particularly bearing in mind that the issue is to determine what are the indigenous and non-indigenous rights in the areas of two different, separate, non-overlapping applications. If, as I am told, evidence is being compiled which has as its focus Bandjalang #1, I do not think that it would be appropriate for me to require that the focus of such evidence be expanded so that it encompasses all that the witness could say which is relevant to either application. Fourth, the other respondents to Bandjalang #2 are not parties to the motion.  They may not be in a position to cross-examine witnesses in Bandjalang #1 whose evidence may touch and concern Bandjalang #2 before any definition of the issues in those proceedings, and before the respondents have prepared their case in those proceedings.

50                  I have come to the conclusion that I should dismiss the farmers’ motion and allow Bandjalang #2 to take its course.  The applicant may or may not seek to invoke s 86(a)(i) or s 86(c).  The Court might decline to receive evidence in Bandjalang #1 or findings made in Bandjalang #1 if it came to the conclusion that to do so would be unfair to the respondents in Bandjalang #2.

51                  I accept the applicant’s submission that the s 86 power, and the potential for its application in relation to Bandjalang #2 should not govern the progress of Bandjalang #1.

52                  I dismiss the farmers’ motion.  I am not prepared to make an order for costs against the farmers because it was not unreasonable for them to make this application.

53                  It is a pity that the co-operative spirit which enabled agreement as to a modus operandi in relation to the taking of “early evidence” has apparently evaporated, particularly as a possible consequence may be that the s 86 power may not be capable of exercise in Bandjalang #2 because of the applicant’s objection to participation on the part of the farmers in the taking of evidence in Bandjalang #1.

54                  I give the following directions as to the future progress of the matter:

1.         On or before 30 June 2003 the applicant is to file and serve any amended Statement of Facts, Issues and Contentions (“Points of Claim”) setting out the facts and contentions relied upon in support of his claim for a determination of native title (“the claim”).

2.         The matters to be addressed in the Points of Claim are to include the matters in the schedule to the draft form of order circulated by Cridlands on 4 February 2003 insofar as they are relevant to the claim, or a statement as to why any such matter is not addressed.

3.         On or before 30 June 2003 the applicant is to file and serve any further reports by expert witnesses containing any further expert evidence upon which the applicant will rely, such reports to comply with the Court’s Guidelines for Expert Witnesses (“the applicant’s further experts reports”).

4.         Within 28 days of the service of the Points of Claim and the applicant’s further experts reports, whichever is later, any party who intends to participate in the trial and who wishes to dispute any of the facts set out in the Points of Claim, is to file and serve a document (“Points of Response”) which identifies:

                        (a)        the facts set out in the Points of Claim which are disputed by that party;

                        (b)        any additional facts or contentions relied upon by that party in opposition to the claim; and

                        (c)        any further or alternative orders sought by the party.

5.         On or before 30 June 2003 the applicant shall file and serve a statement or statements containing all the evidence of each proposed non-expert witness.

6.         Both matters are fixed for further directions on Friday 11 July 2003 at 9.30 am.  Well prior to that date in the Bandjalang #1 matter, the NSW Seafood Council and the States of NSW and Queensland should circulate to all other parties draft further directions containing a timetable for the provision of the respondents’ evidence, and such other matters as are considered appropriate.

7.         Liberty to apply on 7 days notice.

Associate:

Dated:              9 April 2003