FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2015] FCA 1358

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    The applicant has objected to particular lines of cross-examination that the State and the Fortescue respondents seek to pursue with witnesses called by the applicant. In my opinion, each of the State and Fortescue is seeking to cross-examine on issues that are not the subject of any express notice in the statements of contentions that McKerracher J ordered each party opposing the determination of native title as sought by the applicant to file.

2    Litigation is conducted in the Court on the basis that parties should be appropriately forewarned of the substantive issues that are to be determined in the proceedings. Often this is done by formal pleadings. In this case, his Honour intended that those issues be identified by the statements of parties’ contentions and responses to those contentions.

The relevant issues in contention

3    The applicant asserted in its contentions that the Yindjibarndi people’s native title rights and interests were held by them as communal rights and interests and that it was unnecessary to establish connection on a subgroup or estate basis. Both the State and Fortescue expressly admitted that assertion. The applicants also made contentions about the way in which persons who had the right to speak for country did so, and what authority was conferred on them. The State and Fortescue made no admissions as to the latter contention but neither advanced any positive case as to those matters. The State and Fortescue also expressly admitted the applicant’s contention that the Yindjibarndi people had a connection to the area now claimed according to their traditional laws and customs, for the purposes of s 223(1)(b) of the Native Title Act 1993 (Cth). The State and Fortescue admitted that the native title rights and interests that the Yindjibarndi people possessed under those traditional laws that they acknowledged, and the traditional customs that they observed within that claim area, were the, and the only, rights and interests found and determined in the determination of native title made by Nicholson J in Daniel v Western Australia [2003] FCA 666, as varied by the Full Court’s decision in Moses v Western Australia (2007) 160 FCR 148.

4    In these proceedings there is an issue as to the nature and consequences of what Nicholson J held was the traditional custom of respectfully seeking permission to come onto Yindjibarndi land. His Honour held this custom did not amount to a recognition by other indigenous peoples of a right held by the Yindjibarndi people to exclusive possession at common law.

5    The State wanted to cross-examine witnesses as to the identity of subgroups or estates within the overall Yindjibarndi people, and of particular persons within those subgroups or estates, who might be asked for permission, and have authority, to determine who may come onto Yindjibarndi country.

6    Fortescue wished to ask questions along a similar, but distinct line, that only today it identified as having two justifications. The first justification was that Fortescue wished to demonstrate that there was a lack of uniformity in the way in which this asserted right, to be asked permission to come onto country, was exercised. This was so that, if it applies to amend its pleading at a later time, Fortescue will be able to argue that the way in which the evidence will fall out will demonstrate that there is no normative content to any right asserted by the applicant in these proceedings. Fortescue’s second justification was that it will argue that the present custom asserted by the applicant in relation to its right to control access to country is different in a substantive way to what had happened at the time of sovereignty in the exercise of the traditional laws and customs of the Yindjibarndi people.

7    In addition, Fortescue stated that it may wish to cross-examine the applicant’s expert anthropologist, Dr Kingsley Palmer, if I grant Fortescue leave to amend its pleaded contentions to raise these issues. Fortescue does not now seek to further cross examine any of the applicant’s witnesses in this hearing on country on the latter topic (that the present customs are not the same as those at sovereignty). That followed my ruling yesterday when I rejected questions asked by Fortescue’s counsel in cross-examination on the bases that first, they were not relevant to any issue within the pleadings (i.e. the statements of contentions), and secondly, the State had already cross-examined witnesses on the same factual issue before the applicant raised its objection based on the circumstance that the parties earlier had accepted that, ordinarily, only one respondent would cross-examine a witness on any particular issue.

Consideration

8    In my opinion, the procedural rules that apply both under Pt VB of the Federal Court of Australia Act 1976 (Cth) and under the common law require the parties to bring forward their cases frankly, prior to the final hearing. The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset, of the case each party intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3]-[4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[162] per Allsop P, with whom Beazley and Campbell JJA agreed.

9    In Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72], Finn, Emmett and Bennett JJ said:

In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4]. (italic emphasis in original; bold emphasis added)

10    In my opinion, there is a substantive difference between, first, a formal non-admission of an assertion by a party of a material fact or claim, secondly, a positive denial of the fact that the claim exists as a matter of law and, thirdly, an assertion that the right does not exist because particular circumstances demonstrate that fact.

11    In modern litigation it is essential that all parties have fair advance notice as to what the issues at trial will be, so that when they formulate and present their cases and lead their evidence, it will be manifest to all parties what issues that evidence addresses. Had the State and Fortescue wished to agitate these unpleaded issues beyond merely putting the applicant to proof, in my opinion they were required to plead clearly the basis on which they wished to demonstrate that failure, in the ways that they now seek to raise.

Conclusion

12    For these reasons, I am of opinion that the attempt of the State and Fortescue to elicit this evidence in cross-examination of the applicant, without any prior notice and for the first time now, should not be allowed.

Associate:

Dated:    2 December 2015

SCHEDULE

WAD 6005 of 2003

BETWEEN:

ALLUM CHEEDY, JUDITH COPPIN, KEVIN GUINNESS, JOYCE HUBERT, MAISIE INGIE, THOMAS JACOB, ANGUS MACK, JEAN NORMAN, ESTHER PAT, PANSY SAMBO, STANLEY WARRIE and MICHAEL WOODLEY

Applicant

AND:

STATE OF WESTERN AUSTRALIA

First Respondent

FMG PILBARA PTY LTD, FORTESCUE METALS GROUP PTY LTD, HAMMERSLEY EXPLORATION PTY LTD, ROBE RIVER MINING CO PTY LTD,

THE PILBARA INFRASTRUCTURE PTY LTD

Second Respondents

PETER GILBERT COOK, COOLAWANYA PASTORAL CO PTY LTD, GEORGINA HOPE RINEHART AND HANCOCK PROSPECTING PTY LTD, TONY RICHARD RICHARDSON

Third Respondents

PHYLLIS HARRIS (TODD), LINDSAY TODD, MARGARET TODD, YAMATJI MARLPA ABORIGINAL CORPORATION

Fourth Respondents