FEDERAL COURT OF AUSTRALIA

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 3) [2010] FCA 1455

THE COURT ORDERS THAT:

1.    The parties do file a consent order reflecting these reasons within 21 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    These reasons concern the future timetabling of this application. The application (the Yilka Claim) was filed on 15 December 2008. The area sought to be affected by a determination of native title is to the north-east of Kalgoorlie in Western Australia (the Yilka Claim Area). The Yilka Claim Area was the subject of another claim known as the Cosmo-Newbury claim (WAD 144 of 1998) (the Cosmo Claim). That claim was heard together with various other native title determination applications. Ultimately it was dismissed by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 (Wongatha).

2    The Cosmo Claim is still being pursued, at least to the extent that it is the subject of an appeal to the Full Court but the appeal has been stood over on a number of occasions, partly because of the existence of the Yilka Claim.

3    The Yilka Claim has been the subject of procedural orders regarding mediation and various other orders concerning addition and removal of parties. On 1 June 2010, however, at the same time as the order for the filing of submissions as to the future programming of the matter was made an order was made pursuant to s 86C(1) of the Native Title Act 1993 (Cth) (the Act) that mediation cease. It seems there is no prospect at this stage of the matter being resolved by agreement.

4    The applicant seeks to lead evidence additional to that led in the Cosmo Claim in relation to some questions that were the subject of adverse findings in Wongatha and some questions that were not the subject of findings. It is expected that there would be considerable overlap in the evidence sought to be led if both the Cosmo Claim appeal and the Yilka Claim were to proceed. The applicant contends that if the Yilka Claim can proceed to a hearing with the Cosmo Claim appeal being adjourned pending finalisation of the Yilka Claim, the possibility of the duplication of evidence will be removed or, at least, limited.

5    The first respondent (the State) contended that the Yilka Claim should be adjourned pending finalisation of the Cosmo Claim appeal. This was on the basis that the Yilka Claim related to the same area of land and was brought by the same applicant, apparently on behalf of the same claimant group as the earlier Cosmo Claim. The State points to the fact that the Cosmo Claim was heard by Lindgren J in conjunction with a number of overlapping applications in the combined Wongatha proceeding. That proceeding was long and complex requiring 100 hearing days, over 8000 pages of written submissions and producing almost 17,000 pages of transcript. The reasons for dismissing the Cosmo Claim were set out by Lindgren J (at [2893]) where his Honour said:

2893    The Cosmo Claim fails because:

1.    The Cosmo applicant was not authorised to make the Cosmo application, as required by s 61(1) of the NTA.

2.    The evidence does not establish that the Cosmo Claim group is recognised by WDCB traditional laws and customs as a group capable of possessing rights and interests in land or waters.

3.    The evidence does not establish that group rights and interests exist in the Cosmo Claim area.

4.    The evidence does not establish that at sovereignty WDCB laws and customs provided for an ancestral group of the Cosmo Claim group to possess group rights and interests in the Cosmo Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.

5.    The Cosmo Claim is an aggregation of claimed individual rights and interests, and the Cosmo Claim area is an aggregation of individual ‘my country’ areas, the subject of the claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.

6.    The Cosmo Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.

7.    While particular Cosmo claimants can point to earlier times when they or their ancestors lived, or had other connections with, particular places within the Cosmo Claim area, the present Cosmo Claim group has resided at the Cosmo Aboriginal Community only since 1989/1990, and as a group its connection to the Cosmo Claim area dates only from that time.

8.    The evidence does not establish that the Cosmo claimants have a connection to the Cosmo Claim area by Western Desert traditional laws and customs, as required by s 223(1)(b) of the NTA.

6    The applicant contends that the Yilka Claim is different from the Cosmo Claim because it is a claim for individual rights and interests whereas the Cosmo Claim was a claim for group rights and interests. That distinction is not necessarily apparent on the face of the two applications and the Yilka Form 1 should be amended to reflect it.

7    After considering the initial submissions exchanged between the parties, I considered that for the reasons advanced by the applicant it was appropriate for the Yilka Claim to proceed and I requested the parties endeavour to agree programming orders which would see the matter though to a completed hearing. The parties have exchanged correspondence and drafts and have agreed the form of some of the orders but not all. In the course of a recent hearing counsel for each of the parties explained the basis on which particular orders were sought.

8    The Yilka Claim and the Cosmo Claim cover the same area. That invites consideration of s 67(1) of the Act. That provision requires ‘facilitating the orderly and efficient administration of justice where claims overlap’ (Finn J in Kokatha Native Title Claim v South Australia [2006] FCA 838 (at [5]). But it does not necessarily preclude the Yilka Claim proceeding first and the Cosmo Claim being adjourned until the outcome of the Yilka Claim. In my view, that process best achieves these objectives.

PROPOSED ORDERS

9    In June 2010, the applicant proposed orders of a detailed nature involving steps up to and including the making of final submissions in the Yilka Claim. The applicant did not then contend that the Court should make orders seeing the matter through to its conclusion but did not object to the Court doing so. I propose adopting that course but will focus in these reasons primarily on the relatively few areas where agreement has not been reached.

10    Before turning to those matters, there are a few issues arising from the exchanges on which some observations are necessary. The parties appear to have accepted that the exchanged pleadings should not simply be formulaic but having regard to the requirements of s 37N of the Federal Court Act 1976 (Cth) should serve the purpose of identifying the real and substantive issues, bona fide in dispute.

11    The applicant and the State have agreed on provisions relating, among other matters, to:

1.    the use of relevant evidence received in the Cosmo Claim and a process to facilitate that step to save time and expense. To the extent that any restricted evidence is involved, consideration will be given to the terms of the restriction orders that affect the evidence.

2.    the preparation of the tenure evidence where a process is proposed that will result in a single index and volume to which all parties will contribute with a view to facilitating a more systematic consideration of the material in question and reducing the multiplicity of documents and volumes.

3.    the filing of draft expert reports, for the purpose of forming a basis for the conference of experts who will give evidence in the proceeding.

4.    preservation evidence, although it may not ultimately be required.

5.    non-documentary evidence about extinguishment, other interests and any evidence led to rebut evidence led by the applicant about the existence of native title as a matter of traditional law and custom.

6.    documentary evidence where a regime is established similar to that proposed in relation to the tenure evidence and the evidence from the Cosmo Claim. This documentary evidence might, for example, include historical and published material.

7.    an appropriate way to deal with material that is culturally sensitive or may involve particular privacy considerations.

DISPUTED MATTERS

12    I will adopt the suggestion of the applicant to rule on those matters which are not agreed and request the parties to cooperate to provide the Court with a clean and consecutively numbered set of consolidated draft orders and a calendar of the dates referred to in those draft orders.

13    The outstanding issues in respect of which there is not agreement are, in essence, related to:

(a)    the form and verification of pleadings;

(b)    preliminary applications arising on the basis of findings of Lindgren J;

(c)    the nature and status of a conference of experts; and

(d)    the form of evidence in chief of indigenous witnesses.

14    The position taken by the applicant on those four topics, shortly stated, is that:

(a)    pleadings should take the form of pleadings ordinarily contemplated by the Federal Court Rules and should be verified. Amendment of the Form 1 should follow pleadings;

(b)    any application that might result in summary disposal of the matter or involve the trial of a separate question should be raised by the State as soon as it arises on the pleadings or the evidence;

(c)    the utility of the conference of experts should be maximised consistent with the purpose of quickly, inexpensively and efficiently as possible resolving the issues in the proceedings; and

(d)    the evidence in chief of the applicant’s non-expert witnesses be in writing subject to legal objection and subject to the provision of the substance of evidence to be led on site visits.

Amendment of Form 1

15    There is disagreement between the parties as to the timing of any amendment of the native title determination application (the Form 1). For the State it is argued that the amendment should occur at the same time as filing of the Points of Claim. For the applicant it is argued that if any amendment in the Form 1 is required at all, it should occur following completion of the pleading process. The reasons for the applicant adopting this position are that:

(a)    it would defeat the purpose of the order if any amendment was to be made at the commencement of the pleading process as the purpose of the order is to ensure that the form is consistent with the end result of the pleadings;

(b)    if the State is given its preference, it may be necessary to seek leave to further amend the Form 1 after the close of pleadings, if pleadings result in the redefinition of some of the issues in the proceeding;

(c)    because of the additional statutory requirements involved in finalising an amended Form 1, it would be a more efficient and cost effective process if that took place only when the net result of the pleadings could be taken into account. The applicant argues that the Form 1 while being the formal document required under the Act for commencement of the proceeding, is generally unsuitable as a pleading because of the additional functions it serves. The applicant suggests that it would be more functional if the Form 1 were periodically bought into line with the pleadings such that it was consistent with the pleadings at the end of the trial. In that way, the applicant says there would be no prejudice to any party and a substantial savings of time and costs;

(d)    finally, the applicant argues that it would be appropriate for the applicant to make any amendments to the Form 1 first only if the Form 1 were to stand in place of applicant’s Points of Claim.

16    For the State it is argued that it would be illogical and wasteful to require the respondents to respond to proceedings which have as the foundational document a Form 1 which will not correspond with the case the applicant proposes to propound and which will be revised after close of pleadings. The State argues that if the amendment to the Form 1 is not carried out at the outset then, at the least, the applicant should indicate when submitting its Points of Claim what parts of the Form 1 should and what parts should not be considered by the respondents in responding to the Points of Claim.

17    It seems to me that this latter alternative advanced by the State is a functional compromise. It will mean that the State does not need to deal with issues which are not ultimately going to be part of the case. However, it will on the other hand, from the applicant’s perspective, mean that it is not required to commit to the final form of the amendment at the outset. Realistically, it would be unsurprising if an amendment made now were reviewed again at a later time.

18    Therefore, on the amendment of the Form 1, I would not require the amendment at this stage but agree with the State’s submission that the applicant should at least indicate in writing when submitting its Points of Claim, what parts of the Form 1 should and what parts should not be had regard to by the respondents in responding to the Points of Claim.

Points of claim and verification of pleadings

19    It is common ground that this is an appropriate case for use of pleadings to identify and narrow the issues. The applicant proposes that the pleadings would conform with the requirements of the Federal Court Rules and has almost completed a Points of Claim consistent with the terms of the order it proposes, namely, that it contains a statement in summary form of the material facts on which the applicant relies in seeking the making of the native title determination. The applicant proposes that the pleadings be verified.

20    The State says that the words ‘in summary form’ and ‘material’ apply to pleadings anyway and are redundant and apt to confuse. I do not propose wasting a lot of time on this distinction. I am content that the words be included as a matter of emphasis.

21    The State has also added to the pleading requirement that a statement of facts and inferences which are said to arise from facts and contentions (including contentions as to the laws and customs that are said to be relevant and the identity of the body of persons that are said to observe or to have observed such laws and customs and/or contentions as to the application of any statutory provisions) on which the applicant relies in seeking the making of that determination be added to the pleading requirement. In my view, given the potential complexity of the case, this is desirable. Particularising the pleading in this way hopefully obviates the need for subsequent particulars. It is a way of ensuring that vague and general assertions do not defeat the purpose of ensuring that the State knows the case it has to meet.

22    The applicant also seeks an order that the State files and serves an affidavit by the senior officer of the Office of Native Title deposing as to the matters put in issue in the Points of Response being bona fide in dispute after he or she has considered the material reasonably available in relation to the material facts on which the applicant relies. The applicant says such an order is in keeping with the objectives of Pt VB of the Federal Court of Australia Act 1976 (Cth) for the proceeding to be resolved as quickly, inexpensively and efficiently as possible.

23    The State objects to that process and points to the fact that counsel will be, in any event, required to certify that there is a proper basis for the allegations, denials and non-admissions in the pleading pursuant to O 11 r 1B(1) of the Federal Court Rules and Form 15B. The State says it is well aware of its obligations to identify the issues which are bona fide in dispute. There is no reason to conclude otherwise in this proceeding.

24    I agree with the State’s argument on this point.

Preliminary applications – Order 7

25    This issue relates to a proposed Order in the following terms:

7.    (1)    Any respondent which seeks to raise an issue that goes to the viability of the proceeding or any matter in issue in the proceeding in reliance on any finding or order made in relation to the native title determination application in proceeding WAD 144 of 1998 or in any proceeding heard concurrently with WAD 144 or 1998, as soon as possible after the issue arises on the basis of the then state of the Applicant’s case, make any application in relation to such issue by filing and serving a notice of motion, supported by affidavit and written submissions.

(2)    Notwithstanding (1), 28 days after compliance with each of Orders 4, 32, 41(c), 42 and 44, and after any (sic) the filing of any further amendment of the Applicant’s Points of Claim or Form 1 each respondent be taken to have indicated to the Court and the Applicant that it does not intend to make an application of the kind referred to in (a) on the basis of the then state of the Applicant’s case, unless within that time it gives notice in writing to the Court and the Applicant that it intends otherwise;

(3)    if a respondent makes an application of the kind referred to in (1) otherwise than in accordance with this Order and the proceeding is nevertheless dismissed upon that application the respondent shall not, unless the Court otherwise orders, receive any costs of the Application or the proceeding or both; and the Court may order the respondent pay the Applicant’s costs of the application, or the proceeding or both.

26    The regime the applicant proposes is based on the way that O 52 r 18 of the Federal Court Rules requires a challenge to the competency of an appeal to be raised.

27    The concern arises because on 5 August 2010, the State’s legal representative speaking to the possibility of such a claim informed the Court that, to the extent that the State might want to address such an application, it would do it ‘upfront’. Clearly the objective of the applicant is to ensure that there is no unnecessary wastage of time and resource. The applicant argues that the State should be required at the close of pleadings to inform the Court as to whether it will make such an application. Similarly, if pleadings are further amended, a similar requirement should be imposed.

28    The State fully accepts that it should make any application based on res judicata, issue estoppel or Anshun estoppel as soon as possible and recognises the desirability of avoiding unnecessary or avoidable costs being incurred. That said, however, the State argues that it is not clear that an applicant that may have such concerns as to its vulnerability is entitled to bind the other parties and the Court to make a final determination on such a matter at a time or stage in the proceedings of its choosing. In particular, that is so in the present situation when the possibility of a subsequent further amendment of the applicant’s claim has not been excluded. As the State says, certain questions may come into sharper focus when, for example, anthropological evidence is available or when the extent to which the applicant intends to rely on evidence in the earlier proceedings has become apparent or, indeed, when the applicant’s case is explained in the applicant’s final written submissions. The State argues that there is no basis upon which the respondents should be prevented from relying on particular principles or the applicant should be protected from the operation of those principles by the imposition of a pre-emptory deadline. The State argues that the proposed Order 7 should be omitted and the matter left to judgement and commonsense of the respondent parties.

29    In my view the State’s submission is correct. That said, it would be most unfortunate if such an application or submission were deferred to a late stage in the proceeding when it was open to be made and supported at an earlier time in the proceedings. It seems to me, however, that it is highly improbable that the State would take that course. Quite apart from its own model litigant obligations, it would simply be a waste of the State’s time and resources to defer an application which could sensibly be made at an earlier time until a later time.

30    I do not consider proposed Order 7 is necessary or appropriate.

Conference of experts

31    The draft minute concerning experts presently contemplates the following four orders concerning the conference of experts:

28.    In the week commencing 4 June 2011, on a date to be fixed by the Native Title Registrar of the Court (Registrar), the Registrar convene a compulsory conference or conferences to be attended, in each case by the expert witnesses of a particular discipline whom any of the parties intend to call to give evidence in the proceeding, to confer with a view to identifying matters and issues about which their opinions are in agreement and about which they differ (conference of experts).

29.    The conference of experts may be reconvened from time to time as considered appropriate by the Registrar and may be limited to experts of a particular discipline or disciplines.

30.    Within fourteen (14) days of the conclusion of the conference of experts, the Registrar produce a report for the use of the parties and the Court identifying:

(a)    the matters and issues about which the opinions of the experts are in agreement; and

(b)    the matters and issues about which their opinions differ

31.    Terms of reference for each conference of experts be as agreed by the Applicant and each other party who intends to call an expert who is to participate in a particular conference or, failing such agreement, determined by the Registrar having regard to Order 30 above and any draft terms of reference proposed by such party or parties and provided to the Registrar.

32    The applicant relies on several precedents for the position it advances. The first of those appropriately is contained in the reasons for the decision of Lindgren J in Wongatha in which Lindgren J referred to the conference of experts in the following terms:

404    After they had provided their reports, including their responsive reports, the experts within the same discipline, pursuant to a direction of the Court, conferred and produced a joint report on their points of agreement and disagreement (naturally, this did not apply to the one and only archaeologist called, Professor Peter Veth). Except in the case of the linguists, who conferred by telephone, a Deputy Registrar of the Court attended the conferences and assisted in production of the reports.

405    On the hearing, witnesses with the same discipline were sworn in immediate succession and occupied the witness box together. Their reports were tendered. Each witness was invited to make an opening statement of his or her position on the issues in dispute. Then there was an opportunity for the witnesses to question each other. Next each witness was invited to make a statement of his or her position in the light of what had transpired. Finally, each witness was cross-examined and re-examined in the conventional way. The greater part, by far, of each expert witness’s testimony is to be found in his or her reports, cross-examination and re-examination. The utility of the joint reports was diminished because of their brevity and generality, and their relative importance was reduced because of the extensiveness of the experts’ written and oral testimony.

406    I set out below the text of the joint reports. In the case of the anthropologists, the fact that not all attended the conference also reduced the value of the report. The reports are not to be read as statutes. The experts’ oral testimony revealed that the generalisations expressed in them masked points of disagreement. The reports did, however, like any out-of-court statement, record what a participant had been prepared to subscribe to at the time.

407    If a participant departed from the joint report in oral testimony, the inconsistency is to be taken into account like any other inconsistency between an expert witness’s sworn testimony and an out-of-court statement. It makes no difference that the conference was held, and the report prepared, pursuant to a court direction. The reports are not pleadings.

33    The report resulting from the conference was apparently received in evidence. His Honour went on to set out the report (at [411]) of this reasons. However, it appears that the conference did not have the assistance or guidance of specific propositions considered to be relevant by and of particular interest to the parties.

34    Reliance is also placed on the decision of Selway J in Gumana v Northern Territory (2005) 141 FCR 457 where his Honour said (at [173]):

I have already referred to the agreement reached between the senior anthropologists. That agreement significantly reduced the extent of the factual disputes between the parties and the time involved in hearing the witnesses. Before any pleadings were filed in these proceedings procedural orders were made for the exchange by the parties of draft anthropological reports. Orders were then made for a "hot tub" involving each senior anthropologist for each party under the supervision of the Deputy Registrar. The purpose of the "hot tub" was to enable the experts to identify the issues and principles about which they agreed or disagreed. Legal advisers were not present. The result of those discussions between the anthropologists was an agreement between them as to certain propositions. The agreement was provided to the legal advisers. That agreement was not put before me until it was referred to and adopted by Professor Morphy as part of his evidence. The propositions agreed by the anthropologists and adopted by Professor Morphy as part of his evidence are set out in Appendix 1 to these reasons.

35    It seems clear from this passage that his Honour regarded the reduction in the number of issues resulting from the conference of experts as beneficial.

36    The applicant also refers to a presentation made by M/s Caroline Edwards, then the District Registrar (Northern Territory) of the Federal Court in relation to lawyers and anthropologists in native title cases. The District Registrar made the point in Gumana (also known as the Blue Mud Bay case) that pleadings were postponed until after the conference of experts.

37    In Akiba on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (QUD 6040/2001) Finn J ordered that the two reports of the conference of experts not be admitted into evidence notwithstanding that unlike the situation in Wongatha the conference involved consideration of and resulted in a report that recorded the opinions separately of each expert in relation to specific propositions considered relevant by and of particular interest to the parties. In Akiba v Queensland (No 2)(2010) 270 ALR 564 (at [129]-[133]) Finn J said:

129    In pre-trial directions I ordered that a conference of anthropological experts be convened and that a report thereof be prepared by the Native Title Registrar "for the use of the parties". The conference was held. Two reports were produced. They took the form of statements of 86 quite disparate propositions to which the experts assigned their agreement or otherwise, occasionally with brief explanatory comments. The experts signed declarations at the end of each report. The Applicant subsequently sought to tender both reports primarily for the purpose of proving the opinion of the experts on the various propositions. I made a ruling pro tem on 1 December 2008 that I would reject the tender. These are my reasons for so doing.

130    The tender was, to say the least, ambitious. As I indicated at the time of the ruling, the direction given to convene a conference of experts was not made under O 34A(3)(2) of the Federal Court Rules. I did not seek and did not anticipate that I would be provided with reports that would be of use to the Court. Having examined them on the voir dire, my expectation has been confirmed in relation to matters of critical significance in the proceedings. Secondly, in giving the direction, the issue did arise as to what possibly might be the subsequent evidentiary use of the reports. I indicated at the time that the reports as such would be without evidentiary significance. This is not to say that material provided to the experts for the conference may not have been able to be used consistent with the provisions of the Evidence Act in cross-examination etc. It was for this reason that I did not, at the request of the parties, make an order which would have ensured the entire confidentiality of the materials used at the conference and in particular each expert's draft report.

131    My purpose in having the conference was to facilitate the development of the experts' opinions through a process of interchange between them. This is a familiar scholarly process in the social sciences. The conference was intended to inform the experts of the views of their colleagues and hence enhance the sharpness of their final reports. It equally was intended that it assist them in ascertaining what were and were not the matters in issue between them. It was not in any way intended to be a conference which would lead to the production of a document for the court containing opinions of the experts. If I had in mind such a purpose, the directions I would have given would have been of a totally different character. My intention was clearly understood by the State and the Commonwealth. Such appears not to have been the case with the Applicant for whatever reason. This is unfortunate but it in no way affects my view on the admissibility of the document.

132    I have very little doubt that the manner of participation of the scholars concerned would have been affected in varying degrees by the basis upon which the conference was intended to be held. The Applicant sought to avoid the obvious consequence of what informed my giving the conference direction, by reliance upon a document subsequently agreed by the legal advisers which it is said carried the matter beyond what I might have envisaged. I do not accept the agreement (which has been tendered for present purposes) had that effect and clearly it was not seen to do so by the Respondents. It contained no agreement as to the potential use of the report, although a clause in it reserved the position of the parties. That agreement would always of course be subject to my ruling under the Evidence Act insofar as admissibility of reports in whole or in part were concerned and, in this respect, I would refer to s 135 in particular.

133    The Applicant also contended that, not to allow the reports to be admitted, would deprive them and the Court of the benefit of what is said to be a considerable level of agreement between the experts on issues they were asked to consider by the various parties at the conference. The experts' final reports indicate, in my view, the utility of the process engaged in at the conference. Moreover, there was simply no reason to assume that the issues upon which there may have been agreement would in fact be found in any way to be relevant in the proceedings. Even if the reports might be said to have had probative value, I ruled them inadmissible under s 135, given the circumstances of their provenance and the reliance thereon by the State and the Commonwealth.

38    A conference of experts and report were also ordered by North J in VID6004/1998.

39    Of the orders set out above, Orders 28 and 31 have been agreed but there is a substantial difference between the State and the applicant in relation to the nature and purpose of the conference of experts which is reflected in the respective drafting proposed for Orders 29 and 30.

40    The State’s proposal for Orders 29 and 30 is as follows:

29.    The conference or conferences of experts shall not be a convened under Federal Court Rules O34A r3(2) but shall be intended to promote the informal development of experts opinions through interchange between them. A conference may be reconvened from time to time as considered appropriate by the Registrar and may be limited to experts of a particular discipline or disciplines.

30.    Within fourteen (14) days of the conclusion of each conference of experts, the Registrar shall produce a report for the use and guidance of the experts in finalising their reports. Any such report of the Registrar:

(a)    shall identify, the matters and issues about which, to the perception of the Registrar, based on the proceedings at the particular conference of experts the opinions of the participating experts are in agreement;

(b)    shall identify, the matters and issues about which, to the perception of the Registrar, based on the proceedings at the particular conference of experts, the opinions of the participating experts differ;

(c)    in the interests of promoting frank discussion amongst the experts attending such a conference [absent agreement or subsequent order or further application by any party]:

(i)    shall not be received as evidence in the proceedings,

(ii)    shall not be referred to in the final reports of experts (which final reports may however address the substance of any issue identified at a conference of experts by the Registrar),

(iii)    shall not be put to an expert on cross examination, and,

(iv)    shall not directly or indirectly be made the subject of a notice to admit facts.

41    As to this, the applicant expresses concern as to the ‘extreme limitations, vagueness of purpose and the absence of appropriate guidance to the experts’ which, it says, is suggested by the first sentence of the State’s draft for Order 29.

42    The State considers it prudent to guard against a misunderstanding as to the approach to be taken in this conference and seeks to ensure that the free exchange of ideas between experts is encouraged in the conference before final reports are filed and served. The State is anxious that the conferences should not become or be taken as an opportunity to lay groundwork work for cross-examination, the securing of admissions or otherwise gaining procedural advantage. To that end, the proposal is to make it clear that the report of the Registrar is not to be used by the Court but is to guide the experts in finalising their reports.

43    In my view, the State’s position is appropriate and accords with the reasoning of Finn J in Akiba. I would therefore make orders in accordance with the States draft Order 29 and Order 30. This would not preclude the parties developing between themselves a different regime if such agreement can be reached. Nor would it preclude the position being reviewed on a later motion. To that end, I have added ‘absent agreement or subsequent order or further application by any party’ to the preamble to the State’s proposed Order 30(c).

Evidence of applicant witnesses other than expert witnesses – Order 50

44    The proposal advanced by the applicant on this topic is as follows:

50.    Subject to Order 50E, at least 28 days before the hearing at which the evidence will be taken the Applicant’s representatives are to file and serve:

(a)    a statement containing, in consecutively numbered paragraphs, the evidence proposed to be led from each proposed witness other than an expert witness; and

(b)    a copy of each photograph or other document (appropriately captioned or described) which it proposes to tender or refer to in the evidence of that witness (where such photograph or other document is not an annexure to a statement or affidavit).

50A.    Where a party objects on legal grounds to any part(s) of any of the statements served pursuant to Order 50(a) above being admitted into evidence as the evidence in chief of the witness concerned or any photograph or other document served pursuant to Order 50(b) above being admitted as evidence it will, on or before at least 7 days before the hearing at which the evidence will be led, file and serve a notice identifying those parts of the statements or photographs or documents which that party objects to and the legal grounds for each objection.

50B.    The parts of the statements, photographs or other documents that are not identified in any notice given under Order 50A above shall (subject, in the case of a statement, to the witness being made available for cross-examination) be received as evidence.

50C.    Any cross examination of a witness giving evidence at the Session shall take place at the conclusion of the evidence in chief of the witness.

50D.    Without prior leave of the Court, the Applicant will not be permitted to lead evidence from a witness during the Session unless Order 50(a) above or 50E below as the case may be, has been complied with in respect of that witness.

50E.    In relation to evidence intended to be given on site visits, the Applicant’s representatives are to file and serve a detailed program in relation to the proposed evidence, which identifies the places at which the evidence is intended to be given, the witnesses who will give evidence there, and the substance of the evidence to be given there.

45    The regime proposed by the applicant is said to accord with or at least be similar to regimes imposed by Marshall J in WAD 6221/1998 and Barker J in WAD 6123/1998 and part WAD 6193/1998.

46    The State’s draft in relation to this topic is as follows:

50.    (a)    No later than 24 June 2011 the Applicant file and serve:

(i)    a written statement or affidavit of the evidence in chief of each witness it intends to lead evidence from other than an expert witness, and

(ii)    a copy of any document to be referred to by any witness it intends to lead evidence from other than an expert witness.

(b)    Within 21 days after service of statements referred to in (a) above the Respondents may file and serve:

(i)    notice identifying the part or parts (if any) of each written statement or affidavit of the evidence that the applicant serves, which a respondent requires to be given orally,

(ii)    notice identifying any document that is objected to and the grounds for the objection.

(c)    Except insofar as part or parts of a witness statement are the subject of a notice under (b)(i) above the written statement of a witness served under (a)(i) above shall, upon adoption of that part of the statement by the witness in question, stand as the evidence in chief of the witness, and

(d)    insofar as part or parts of a witness statement are the subject of a notice under (b) above the written statement of a witness served under (a) above shall not be received as evidence and the applicant shall be at liberty to elicit the substance of those parts of the witness statement in oral evidence.

47    The applicant contends that its procedure achieves fairness and efficiency without undue expense. For the applicant to reduce the evidence in chief of all of its indigenous witnesses to writing senior counsel says would be extraordinarily expensive and would run to hundreds of thousands of dollars at least. It would take much longer to prepare evidence to be led orally. Additionally, on the regime proposed by the State, the election of evidence to be led orally would add significantly to the applicant’s costs. There is, the applicant says, an appearance of unfairness and discrimination in that lay witnesses of the respondents will not be subject to the discretionary requirement of evidence to be led orally. Rather the State proposes that those witnesses be subject to the ordinary ‘objection’ regime requiring consideration of the admissibility of the evidence. There is a further suggestion of unfairness, the applicant says, in that on the State’s submissions the respondents would have the advantage of all the evidence in writing well in advance of the hearing at the considerable expense of the applicant.

48    The proposed Order 50 from the State differs from the applicant’s orders in three main respects. First the State seeks service of all materials before the commencement of evidence and in sufficient time before commencement of evidence to allow the impact of the totality of the applicant’s case to be understood. Secondly, the State seeks statements providing detail rather than summaries of the evidence to be given in respect of facts summarised in the applicant’s Points of Claim. The third point of difference is that the State seeks to follow a regime used in other cases including the Cosmo Claim in which uncontroversial written evidence is received quickly and efficiently and evidenced in areas of particular importance might be required to be given orally. Thus, the State would propose service of all written statements or summaries by a specific date. In the State’s proposal, the date identified is 28 days before the commencement of evidence allowing the State time to consider the material. If statements are coming through ‘in a trickle’ which having regard to the proposed hearing dates, would provide the respondents with some of the applicant’s written statements or summaries after other witnesses had completed their evidence and at a time when the respondents attention would be fully directed towards the hearing then in progress, the respondents would have insufficient opportunity, the State argues, to properly digest and prepare for the evidence.

49    The provision of only a brief written summary of a witnesses’ evidence, the State complains, creates the potential for the respondents to be taken by surprise when the evidence is actually given. An example would be possible evidence concerning kinship rules or a particular place. It is the content of the rules or of particular evidence about the place that would be important. The risk presented by the approach favoured by the applicant is that this may not be revealed until the particular witness actually gives evidence. That risk is heightened when the applicant’s proposed Order 1 requiring the brief summary of the substance of evidence is read with the applicant’s proposal for its Points of Claim – a statement in summary form of material facts.

50    In short, the State’s argument is that the process favoured by the applicant appears to be one in which the case will gather specificity as it advances towards the completion of the oral evidence which it is proposed to be given in remote places over several weeks. Summaries that do not adequately capture the detail of the evidence, even if provided together and with ample opportunity for them to be understood as a whole before the commencement of the exercise, would place the respondents in a position of not really knowing what evidence should be treated as significant or even momentous when taken with other evidence to be given later.

51    In relation to the opportunity for respondents to require parts of the evidence to be led orally, the State argues this is an appropriate way to proceed as it allows uncontroversial evidence to be received efficiently. It permits the Court and the parties to hear evidence on matters of significance in the words of the witness. In essence, that was the regime applied in Wongatha, parts of which will no doubt be relevant in the present proceedings. That approach was adopted with the agreement of the parties in Wongatha before Lindgren J and although it was later in the proceedings the subject of discussion, it was the approach taken throughout.

52    It is also said to be consistent with and to reflect the approach of the Supreme Court of New South Wales in its Practice Note SC CL 5(at [30]).

53    In my view the State’s arguments on this topic are correct and the regime it proposes is to be adopted. As witnesses will have to be prepared, in any event, completion of a written statement will not greatly increase the cost or delay of case preparation. It will add significantly to the efficiency of the hearing where the cost to a greater number of people will be a real consideration.

OTHER MATTERS MOSTLY AGREED

Orders 25-27 - draft expert reports

54    There is a slight difference in wording in relation to the proposed orders concerning the draft expert reports.

55    I consider that the following wording prepared by the applicant is appropriate:

25.    On or before 7 March 2011, the Applicant serve draft reports, which need not be signed and which shall contain the then proposed evidence in chief of each expert witness on which it intends to rely.

26.    On or before 4 May 2011, each respondent serve draft reports which need not be signed and which shall contain the then proposed evidence in chief of each expert witness on which it intends to rely.

27.    Upon the request in writing by another party, a party shall, within fourteen (14) days of such request, allow the requesting party to inspect and, if requested, provide at the requesting party’s expense one copy of each document referred to in the party's draft expert reports that is unpublished or not reasonably accessible by the requesting party's experts.

Orders 32-34 – final expert reports and amendment of pleadings

56    The applicant’s position in relation to this material is that if orders are made in terms of its draft Orders 29 and 30 set out above, then proposed Order 34 can be deleted. Proposed Order 34 is in the following terms:

34    In complying with Orders 32 and 33 in relation to final reports each expert witness is to:

(a)    pay particular attention to the matters and issues about which the report referred to in Order 30 reported differences between experts; and

(b)    identify the matters about which he or she agreed with the other experts and briefly indicate the basis for each such opinion.

57    As proposed Orders 29 and 30 are not made in the form sought by the applicant, it would be appropriate, the applicant contends, the experts be guided to ensure that in their reports they identify the matters about which they have agreed with the other experts and briefly indicate the basis for his or her agreement. I accept this submission.

Orders 70-73 – restrictions on material in the proceeding

58    At present, Orders 70 and 73 are in these terms:

70.    Unless otherwise ordered or agreed by the solicitor for the Applicant, the draft and final expert reports and any genealogies, maps and site information filed by the Applicant in the proceeding after the date of this Order, shall be subject to the following restrictions:

(a)    they are not to be copied other than by the Court for the purposes of the Court;

(b)    their contents are not to be communicated to any person apart from the legal advisors to the parties, parties including the personnel and representatives of parties from whom instructions in the proceedings in relation to the contents of the particular document might reasonably be sought obtained and any expert engaged by a party for the purpose of the proceedings. In each case of disclosure to a person in accordance with this order the person shall be informed of this order prior to and as a condition of disclosure;

(c)    they are not to be used for any purpose other than for the purposes of any hearing in the matter and any appeal; and

(d)    save for the actual documents filed in Court, and any direction in relation to those, all copies are to be returned to the party who filed them or destroyed upon finalization of the proceeding or any appeal.

71.    At the conclusion of the proceeding, and any appeal, the Applicant is released from compliance with Order 70 in relation to anything done as and from the conclusion of the proceeding.

72.    A party may include with any document filed and served pursuant to these Orders, a notice to the effect that a restriction upon communication or copying of some or all of the contents of the document is intended to be sought from the Court, including details of the nature of the restriction sought and the basis on which such restriction is sought.

73.    If the parties or persons concerned cannot resolve any issue in relation to the restriction sought, liberty to apply to any party for a determination of that issue by the Court and the restriction sought will apply unless or until the Court orders otherwise.

59    The orders are agreed except for the final sentence of the State’s draft [72]. The final sentence in the State’s draft [72] is as follows:

Where a document is served subject to a notice provided for by this order, the date of service shall be deemed to be the date upon which the Court makes, or declines to make, an order restricting communication or copying of the document.

The applicant objects to this as it is a ‘general and unwarranted extension of time in favour of the respondents’.

60    In my view the draft without the additional notional date is adequate protection but it would be expected, if necessary, that the parties would co-operate or raise the matter with the Court if problems with timing arise.

Orders 40-49 – trial and submission dates

61    These draft orders are presently cast in the following terms:

40.    The trial is to commence with opening statements in Perth in the week commencing 15 August 2011 and will continue on the dates referred to in Order 41.

41.    The evidence of members of the native title claim group in the Applicant’s case be given at a venue or venues to be fixed, between:

(a)    22 August and 16 September 2011 in Cosmo Newberry and on and near the claim area on site visits;

(b)    3 October to 14 October 2011 in Cosmo Newberry; and

(c)    31 October and 11 November 2011 in Perth.

42.    Evidence in the balance of the Applicant’s case and in the case of any Respondent including evidence of expert witnesses, evidence in relation to extinguishment and other interests and documentary evidence be given at Perth between 5 December and 16 December 2011.

43.    On or before 25 July 2011, the Registrar is to convene a conference of the Parties to discuss arrangements for the taking of evidence on country, including such matters as places to be visited and travel and accommodation requirements, and in reasonable time prior to the conference the Applicants are to provide each other party with a draft of a proposed arrangements.

Final written submissions

44.    On or before 2 March 2012, the Applicant file and serve written final submissions on the existence of native title.

45.    On or before 2 March 2012, the State file and serve written final submissions on “other interests” and “extinguishment”.

46.    On or before 16 March 2012, each other respondent file and serve written final submissions on “other interests” and “extinguishment” to the extent it disagrees with the submission filed pursuant to Order 45.

47.    On or before 11 May 2012, the parties file and serve written final submissions in response.

48.    On or before 8 June 2012, the Applicant file and serve written final submissions in reply.

49.    The matter is set down for final oral submissions commencing on 9 July 2012.

Although the substance of the orders are agreed, the State seeks to remove the December 2011 tranche of evidence into early 2012. If the dates are to be moved into 2012, the applicant seeks a corresponding delay in the dates for each of the rounds of final submissions identified in Orders 44-49.

62    In my view, the additional time will be welcome. It is not an unreasonable luxury to shift the timing into early 2012, for example, February or March. I accept that adjustments to the dates of the final submissions should be made.

Evidence of expert witnesses

63    This matter is effectively dealt with by the immediately preceding discussion and adjustments to the dates should be made by the parties.

CONCLUSION

64    The parties requested that I resolve the debates about those matters so that a final form of a minute for directions until trial could be agreed and made. These reasons resolve any remaining areas of dispute. I will leave it to the parties to file a consent order reflecting these reasons.

Associate:

Dated:    21 December 2010