FEDERAL COURT OF AUSTRALIA

Wyman on behalf of the Bidjara People v State of Queensland [2013] FCA 366

THE COURT ORDERS THAT:

1.    the applicant’s application for leave to appeal is dismissed; and

2.    costs of the application are to be costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    A number of associated native title matters are set down for trial commencing on 22 April this year. As is common with native title matters the trial is likely to be lengthy. Considerable difficulties have been experienced in scheduling it. Indeed, it has been necessary for the Court to find an interstate Judge in order to deal with it within an appropriate time-frame. As with most native title cases the claims or their predecessors have been in existence for quite some time. These cases have been subject to intensive management in recent times with a view to bringing them to resolution. There have been extensive directions hearings and case management conferences designed to bring about that result. The trial was originally intended to start earlier this year but was – at some time late last year, deferred until 22 April to take account of the possibility of bad weather. At that time the applicant was granted an extension of time in which to file material from a date in October until 7 December last year. It seems that on that day the applicant sought to file extensive material, although much of it had previously been filed and been the subject of objection. The applicant did not file sufficient copies of the material to satisfy the requirements of the rules, and so it was not possible for the registry to issue service copies. The applicant sought to deal with this problem by providing the material in electronic form. The other parties pointed out that the order made by Reeves J was self-executing in that it indicated that in the event that the order was not complied with, the applicant would not be able to rely upon any further material at the trial. In the event, the applicant eventually accepted that it had failed to comply with the order and on 22 February applied for an extension of time.

2    The order required the filing of material but said nothing about service. Reeves J had, in the course of case management, previously observed that when he said “filing” he meant filing and serving in accordance with the definition of the term “file” in the Federal Court Rules. In any event, Jagot J, to whom the case was by then assigned, heard the application in March and refused the application. The application was refused partly upon the basis of observations made by Reeves J at the time at which he made the self-executing order, the failure by the applicant to do anything to rectify the position until 22 February this year, and the fact that her Honour was satisfied that other parties would suffer prejudice which could not be reasonably avoided.

3    Her Honour has also made other directions in the course of her management of this case, in particular, by orders dated 25 March 2013 and 5 April 2013. The applicant wishes to appeal against a number of those orders, but, as the orders are interlocutory and relate to procedural matters, it is necessary that it obtain leave. This is an application for such leave. The matters that are raised can best be summarised by reference to the draft notice of appeal. I do not propose to go into the merits of the appeal at this stage. It seems to me that the matter is now so close to trial that these issues should be treated as, in effect, arising in the course of the trial. They will be better dealt with after the trial and judgment, when their relevant significance may be more easily assessed. Further, many of the issues may cease to be relevant. Her Honour may, if sufficient cause is shown, change her mind with respect to some aspects of the case management. In those circumstances I consider that it is better, in the interests of all of the parties, that the trial proceed rather than that her Honour be faced with the prospect of an application for an adjournment because of a possible appeal.

4    The grounds as they appear from the draft notice of appeal are six in number. The first concerns a refusal by her Honour to receive evidence of “dance”, by which I understand the appellant to mean that it wishes to have a dance or dances performed and received as part of the evidence in the case. Whether this would be a demonstration for the purposes of the Evidence Act 1995 (Cth) (the “Evidence Act”) or real evidence I am not quite sure. However the difficulty seems to be that no attempt was made to explain to her Honour the nature of the evidence, its relevance or why it could not be explained in written or oral form rather than by demonstration. Her Honour was simply given no indication as to what was to be done with the dance evidence, if that is what it was to be. I can see no error in this regard. I do not discount the possibility that the applicant may be able to demonstrate some relevance in an appeal. However, it has not done so to date. For that reason it is not desirable that the trial be put off in order that the matter be ventilated on appeal.

5    The second and third grounds appear to relate to evidence which was primarily provided in written form pursuant to an election made by the applicant upon the invitation of Reeves J. The evidence was subject to numerous objections by the other parties and, in order to resolve those objections, the parties were given an opportunity to confer over a period of three days with a view to reaching agreement. Agreement was reached. Her Honour’s orders were substantially designed to give effect to such agreement.

6    At some stage the issues in this case were extended by virtue of an extension of the areas of two other claims, creating overlaps with the applicant’s claim area. The applicant considered that as a result, additional evidence was necessary. That evidence was originally to be delivered in October, and then by 7 December. It seems that some of the evidence which the applicant wishes to lead is evidence which had previously been provided. It was the subject of objection and the objection process to which I have referred. It is said that the applicant has now cured the defects as to admissibility of that evidence, and that it should now be received in connection with the overlaps. All of that may be so, but it does not lead me to conclude that I should risk disrupting the trial in order to allow an interlocutory appeal.

7    Ground 4 relates to the refusal by Jagot J to extend time for compliance with the order for delivery of material by 7 December. I have already explained the reasons which Her Honour gave for declining that application. It is not necessary that I say anymore about that matter.

8    Ground 5 relates to observations made by her Honour in the course of a directions hearing as to the way in which the expert evidence is to be presented. Her Honour said that was to be done in an informal way, and that she would conduct the cross-examination, having regard to any requests by the parties as to questions which might be asked. It does not seem to me that her Honour gave any binding directions or made any clear decision. She rather indicated the way in which she expected to conduct the trial. Ground six relates to a finding made by her Honour that a witness, whom the applicant wishes to call, was not an expert, and that the evidence which was to be called was not based upon relevant expertise. Those are findings of fact. They can be best dealt with after the trial and judgment. In those circumstances the question is not one which can properly be the subject of an appeal at this stage.

9    For those reasons it seems to me that no good point would be served by granting leave to appeal. The interests of the parties and the time of the Court will be better served and utilised if these matters are treated as having arisen in the course of the trial and raised on appeal after judgment is delivered, assuming that the applicant still wishes to appeal. Their application for leave to appeal will be dismissed, not on the merits, but on the basis that these issues will be better raised on appeal after the final determination of the matter.

10    Given the stage to which the case has progressed I am inclined to think that applications of this kind ought not to be encouraged. On the other hand, the matter may be of some considerable importance to the applicant. In those circumstances the costs of the application today should be costs in the cause.

Associate:

Dated:    26 June 2013