FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3) [2015] FCA 1359

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    The Fortescue parties have objected to a number of passages in Dr Kingsley Palmer’s expert anthropologist report of September 2014. The nature of the objections that are currently contentious concern, first, sections of Dr Palmer’s report in which he makes references to an earlier anthropological report by Messrs Robinson and Chambers (the report evidence) that was prepared for the purposes of satisfying the State, among others, about the applicant’s assertions as to connection to the land and waters the subject of the current proceedings. The second species of evidence objected to concerns Dr Palmer’s recitation of statements made by members of the claim group (the claim group member evidence), some of whom have not been called to give evidence and others of whom gave oral evidence on country in September 2015, but did not necessarily traverse the (or a) precise subject area that Dr Palmer recited.

The statutory context

2    The issue as to whether this evidence is admissible falls to be considered in light of s 82(1) of the Native Title Act 1993 (Cth) and s 60 of the Evidence Act 1995 (Cth). The first section provides:

82    Federal Court’s way of operating

Rules of evidence

(1)    The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

3    The Fortescue parties accepted that the question is whether both the report evidence and the claim group member evidence will be admissible under s 60(2) of the Evidence Act. Relevantly, s 60 provides that:

60    Exception: evidence relevant for a non-hearsay purpose

(1)    The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2)    This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

Note:    Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

4    The Fortescue parties contended that if either category of the evidence be admitted, it should be subject to a limitation on its use pursuant to s 136 of the Evidence Act of the kind contemplated by Nicholson J in Daniel v Western Australia (2000) 178 ALR 542 at 550-551 [30], particularly at subpars (7)–(9). The Fortescue parties argued that the evidence objected to has the capacity to cause prejudice and a tendency to confuse if it were to be admitted or admitted without such a limitation.

Consideration

5    In my opinion, each category of the evidence objected to is admissible without any need to make such a limitation under s 136 of the Evidence Act. In Bodney v Bennell (2008) 167 FCR 84 at 108 [92]–[94], Finn, Sundberg and Mansfield JJ discussed the relevant principles. In particular, their Honours said there:

92    Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, “would be to ignore the accepted methods of professional work and to insist on finical and impossible standards”. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].

93    There is nothing in the Evidence Act that displaces this body of law. …

94    It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski [1966] VR at 385-386. (emphasis added)

6    The report evidence on which Dr Palmer relied, based on what Messrs Robinson and Chambers reported, fell within the first class of admissible evidence on which their Honours said an expert may base his or her opinion, namely material produced by others in the area in which both those experts and Dr Palmer had expertise (167 FCR at 108 [92]).

7    The claim group members’ evidence fell within the second class discussed by Finn, Sundberg and Mansfield JJ (167 FCR at 108 [94]), namely it is direct evidence of the anthropologist’s observations. Such evidence, ordinarily, will be or consist of a statement of what the anthropologist’s field work yielded, as a basis on which he or she can express opinions in relation to what he or she observed as to the connection and other attributes of the societal organisation and behaviours, customs and application of relevant laws and customs by the members of the claim group, whom the anthropologist had both interviewed and observed in the course of research for the report or publication.

8    The question whether a limitation should be made under s 136 of the Evidence Act as to the use to which the objected-to evidence can be put falls to be determined by consideration of whether the reception of that evidence might be unfairly prejudicial to, relevantly, the Fortescue parties or be misleading or confusing.

9    I am of opinion that there is no basis, at the present time, for such a conclusion. That is not to say that the weight that may be given to that evidence may well be different to, and, indeed, less than, the weight that may be given to more direct evidence of the subject matter to which the objected-to evidence is addressed. At the end of trial, I will be able to evaluate the weight of the evidence, having regard to, among other matters, its potentially less direct nature than say, first-hand evidence given by members of the claim group directly at the hearing before me. I will also be able to consider how, and to what degree, any findings I make ought be based more or less on Dr Palmer’s report and his reliance on material produced by others, as opposed to the viva voce evidence of witnesses tested in cross-examination as to their observance of traditional laws and customs or as to the anthropological or customary significance of places or conduct engaged in by those persons, the subject of some issue in the proceedings.

10    I agree with what Cooper J said in Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [26] namely:

For reasons given earlier, s 60 does not give to the hearsay evidence a weight or cogency which the circumstances do not warrant. The absence of an order under s 136 of the Act does not prevent the respondents from contending that in the circumstances of this case, the hearsay statements should be given little or no weight and should not be relied upon. Relevantly, those circumstances include the fact that no attempt has been made to tender original evidence of the contents of the hearsay statements when the witnesses gave evidence, the failure to call some witnesses at all, and that fact that certain oral evidence in inconsistent with the previous hearsay statement. (emphasis added)

11    I am also mindful that some of the persons on whom both Messrs Robinson and Chalmers and Dr Palmer relied may no longer be alive and others would be unnecessarily called to give evidence. For example, Dr Palmer said (at [389] of his report) that he had asked some of those with whom he worked about what they considered were their customary rights with respect to their ngura (i.e., as he stated (at [388]) “own country”, “country” or “ground”) and that he wrote a field note concerning this subject. That note contained statements by claim group members, among others, that:

If you go to the water you got to take it in your mouth and blow it first. This is called yuthurugayi. You can ask him for fish, meat anything. If you don’t do this you might get into trouble. There might be a warlu there.

12    A number of witnesses gave this very class of evidence on country, namely their belief about the importance of the ritual of taking water in one’s mouth and blowing it out for a cultural purpose of the kind identified in the passage I have just quoted. There could be no bona fide prejudice in the admission of Dr Palmer’s recounting of, for example, his summary of this same information from others in his report as evidence that would be admissible under s 60(2) of the Evidence Act without limitation.

13    The Fortescue parties made a generalised submission about “prejudice” that they might suffer from the admission of Dr Palmer’s accounts of the claim group member evidence. But the Fortescue parties did not identify any instance of how they might suffer any such prejudice from admission of any evidence in this category. I am not satisfied that there could be any prejudice or any confusion or misleading from admitting this class of evidence. What weight the evidence is given, having regard to the evidence viva voce of witnesses before me, will be a matter I can deal with in evaluating all of the evidence at the end of the trial and after hearing the parties’ submissions.

Conclusion

14    For these reasons, I am of opinion that I should admit the evidence that the Fortescue parties objected to in Dr Palmer’s report without limitation but, will evaluate it carefully and with the benefit of detailed argument at the end of the hearing in light of all of the evidence in the proceedings.

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