FEDERAL COURT OF AUSTRALIA

Agius v State of South Australia (No 5) [2017] FCA 1339

ORDERS

THE COURT ORDERS THAT:

1.    The orders of White J dated 11 November 2016 and the orders of Mortimer J dated 7 April 2017, 24 August 2017 and 6 November 2017 are vacated and replaced with the following consolidated orders.

2.    Pursuant to r 30.01 Federal Court Rules 2011, the following questions be decided separately from and before any other questions in the proceedings:

But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(a)    Does native title exist in relation to any and what land and waters of the Kaurna claim area?

(b)    In relation to that part of the Kaurna claim area to which the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interest?

Trial

3.    The trial of the separate question is set down for hearing for an estimate of five weeks (part heard) commencing at 10.15 am on 3 April 2018.

4.    The part heard trial be further listed for an estimate of one week commencing at 10.15 am on 21 May 2018.

Parties

5.    The Applicant, the State and the Commonwealth are excused from serving documents on any party which has not filed a notice to the effect that it requires that it be served with all documents filed in relation to this part of the proceeding.

Pleadings

6.    The Applicant file and serve a proposed replacement statement of issues, facts and contentions (SIFC) in two stages:

(a)    On or before 28 November 2017, a proposed replacement SIFC limited to:

(i)    the relevant society and the country boundaries of the relevant group as at 1836;

(ii)    apical ancestors;

(iii)    the impacts of colonial settlement in the 1800s; and

(iv)    the selection of land for aboriginal reserves in around the 1840s; and

(b)    On or before 2 February 2018, a final proposed replacement SIFC, incorporating the contents of the document filed on 28 November 2017 and adding only new matters not dealt with in the 28 November 2017 document.

7.    On or before 9 February 2018, the State and the Commonwealth file and serve any objections to leave being granted to the Applicant to rely on the final proposed replacement SIFCs.

8.    On or before 16 February 2018, if there are no objections filed pursuant to order 7, then each of the State and the Commonwealth file and serve a response which identifies:

(a)    the facts in the SIFCs which are disputed;

(b)    any additional facts or contentions relied upon in opposition of the Applicant’s claim; and

(c)    any further or alternative orders sought.

Evidence of witnesses other than expert witnesses

9.    The parties are to provide the lay evidence in support of their claims/defences by filing and serving:

(a)    a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or

(b)    an outline of the evidence proposed to be led from a witness (other than an expert witness) orally.

10.    On or before 15 December 2017, the Applicant file and serve:

(a)    a list of the proposed witnesses (other than expert witnesses) upon whose evidence the Applicant will rely; and

(b)    a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or

(c)    an outline of the evidence proposed to be led from a witness (other than an expert witness) orally; and

(d)    a copy of each photograph or other document (appropriately captioned or described) which it proposes to tender or refer to in the evidence of a witness.

11.    On or before 16 February 2018, the State and the Commonwealth, if intending to lead evidence from a non-expert witness, file and serve:

(a)    a list of the proposed witnesses (other than expert witnesses) upon whose evidence they will rely; and

(b)    a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or

(c)    an outline of the evidence proposed to be led from a witness (other than an expert witness) orally; and

(d)    a copy of each photograph or other document (appropriately captioned or described) which it proposes to tender or refer to in the evidence of a witness.

12.    Without the leave of the Court, no party may lead evidence from a witness (other than an expert witness) unless a statement of evidence or an outline of evidence has been filed in accordance with orders 10 or 11.

Objections to evidence of witnesses other than expert witnesses

13.    On or before 2 March 2018, any party who does not consent to the whole of a statement or document filed in accordance with orders 10 or 11 being admitted into evidence file and serve a notice identifying:

(a)    those parts of any statement of evidence or outline of evidence which that party objects to being admitted into evidence, together with the basis for such objection; and

(b)    those parts of any statement of evidence which that party contends should be given as oral evidence from the witness, during examination in chief; and

(c)    those photographs or documents or parts thereof the tender of which is objected to, stating the basis for such objection.

Expert evidence

14.    The Applicant file and serve:

(a)    on or before 23 October 2017, any further expert historian’s report by Dr R Foster limited to the issue of the basis for and the significance of the selection of land in or about the 1840s for Aboriginal Reserves;

(b)    on or before 23 October 2017, an expert anthropologist’s report by Associate Professor N Draper in relation to the relevant society and the country boundaries of the relevant group as at 1836 and apical ancestors;

(c)    on or before 23 October 2017, substantially updated genealogies by Associate Professor N Draper;

(d)    on or before 7 November 2017, an expert ethno-historian’s report by Dr S Krichauff in relation to the relevant apical ancestors.

15.    On or before 29 January 2018, the Applicant file and serve an expert report by Associate Professor N Draper dealing with connection issues, other than the relevant society and the country boundaries of the relevant group as at 1836 and apical ancestors.

16.    On or before 20 November 2017, the State and the Commonwealth file and serve any expert evidence on which that party seeks to rely in response to the filed expert reports of Dr R Foster, Dr S Krichauff, and the filed expert report and updated genealogies of Associate Professor N Draper referred to in orders 14(b) and 14(c);

17.    On or before 28 February 2018, the State and the Commonwealth file and serve any expert evidence on which that party seeks to rely in response to the expert report of Associate Professor N Draper referred to in order 15.

18.    Any expert’s report filed by any party is to comply with the Court’s Guidelines for Expert Witnesses.

19.    Upon a request of another party, a party who has filed an expert’s report shall allow the requesting party to inspect and, if requested, provide at the requesting party’s expense, copies of all documents referred to in the expert’s report which are unpublished or not reasonably accessible by the requesting party’s experts, within 14 days of such request.

20.    The expert witnesses for those parties who have filed expert evidence are to attend a conference(s) (Experts’ Conference) before a Registrar of the Court for the purpose of narrowing or removing any differences in their relevant opinions, and the experts shall produce for the use of the parties and the Court a document(s) identifying with respect to matters and issues within their expertise:

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

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

(c)    where their opinions differ the reasons for their difference.

21.    The Experts’ Conference shall proceed in two stages as follows:

(a)    the first stage of the conference to take place on 4 and 5 December 2017, commencing at 9.30 am, to consider the issues addressed in the expert reports filed to that date;

(b)    the second stage of the conference take place on 15 March and 16 March 2018, commencing at 9.30 am to consider the issues in the expert reports filed pursuant to orders 15 and 17.

22.    Within one week before the date of the Experts’ Conference, the Registrar convening the conference is, in consultation with the Applicant and those respondents who have filed an expert anthropological report, to circulate an agenda to the participating experts.

23.    The participants in the Experts’ Conference are limited to those experts who have authored reports filed pursuant to these orders, the Registrar and such Court staff as are required to assist the Registrar.

24.    Within 10 days of the conclusion of each of the Experts’ Conference, the Registrar produce a report for the use of the parties and the Court in 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.

Objections to expert evidence

25.    On or before 13 March 2018, each of the parties is to file and serve a notice identifying any parts of any expert report to which it intends to object with a brief statement identifying in each case the reasons for the objection.

26.    The parties are to use their best efforts to resolve any objections which are filed pursuant to order 25 prior to the commencement of the hearing.

Other documentary evidence

27.    On or before 2 March 2018, the Applicant will file and serve an index of any other documents that it intends to tender as evidence at trial, and make available for inspection copies of the documents listed in the index.

28.    On or before 9 March 2018, the State and any other Active Respondent, will file and serve an index of any other documents that it intends to tender as evidence at trial, and make available for inspection copies of the documents listed in the index.

29.    On or before 29 March 2018, the parties will file and serve an index of, and copies of, documents which may be tendered at the trial, identifying:

(a)    those documents which the parties agree are admissible and can be tendered;

(b)    those documents which are not agreed and which the Applicant seeks to tender;

(c)    those documents which are not agreed and which any of (identifying which) the respondents seek to tender.

30.    Under the guidance of a Registrar following case management, by 2 March 2018 the Applicant shall provide to the Court and the Active Respondents in draft, and by 21 March 2018, the parties shall provide to the Court in final form, a timetable for the conduct of the trial of the separate question (the hearing schedule).   The hearing schedule should include the parties’ best estimates of when each witness will be called to give evidence, the sequence of witnesses, and how long each party will examine/cross-examine the witness; whether there is to be any evidence given on country (alternatively site inspections) and if so, when; whether expert evidence is to be given concurrently; whether it is expected closing submissions will be made immediately upon the conclusion of the evidence at the trial.

Submissions

31.    On or before 19 March 2018, the Applicant file and serve an outline of submissions that includes the main issues in dispute, any issues agreed, and an overview of the case as that party sees it.

32.    On or before 22 March 2018, the State and the Commonwealth file and serve an outline of submissions that includes the main issues in dispute, any issues agreed, and an overview of the case as that party sees it.

Non-compliance by a party with these orders

33.    Subject to any further order of the Court, no extension of the times fixed by these orders will be allowed except by the consent of all the parties taking an active part in the trial of the separate question, or on an application filed at least seven days before the time sought to be extended.

34.    In the event of any party failing to comply with these orders, the proceeding may be listed by a Registrar of the Court on short notice, and any party may make an application for the defaulting party to be dismissed as a party to the proceedings.

General

35.    The Registrar convene a case management conference on 29 November 2017 at 2.15pm.

36.    The matter be adjourned for a case management hearing at 9.00am in the week commencing 12 February 2018.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This proceeding is listed for trial commencing on 3 April 2018 in Adelaide. It has been closely case managed for the last 12 months, first by White J and now by me. I set out a detailed history of this proceeding in Agius v State of South Australia (No 4) [2017] FCA 361, and I do not repeat what I said in those reasons about why this proceeding needs careful and close case management. Since that decision in April 2017, the applicant and the State have been working cooperatively and constructively to prepare the matter for trial, with significant involvement of Registrars Colbran and Parkyn. The Commonwealth has also been constructively involved to the extent necessary given its more limited role in the proceeding. Case management hearings involving these three parties and all active respondents have been held since April 2017 and the proceeding will be ready for trial in April 2018 on the questions identified by White J in his orders of 11 November 2016.

2    However, the applicant has regularly sought extensions and alterations to the timetable set by the Court, and the present circumstance is yet another occasion on which that has occurred. Generally this has been done informally through communications with the Registrars and with the Court without the need for formal interlocutory applications, and there can be no objection to this process. Indeed, it has generally proven an effective and efficient way to manage the changing ability of the applicant (and its experts) to meet the trial timetable milestones. Those communications sometimes involve the filing of affidavit material on behalf of the applicant, and this has been appropriate.

3    It is the applicant’s solicitor, Mr Campbell, who is the deponent in almost all of the affidavit material before the Court concerning case management issues, and who is responsible for almost all of the communications with the Court and the Registrars on case management. Much of the alterations to the trial preparation timetable have revolved around the production of expert reports. There is no doubt that expert evidence is important to this claim, especially given the live dispute between the applicant and the State in particular concerning who are the appropriate apical ancestors for the claim area, and also concerning the extent of Kaurna country and thus the appropriate boundaries for the Kaurna claim.

4    To date, and somewhat ironically, this appears to be a claim which is perceived to depend more on expert evidence than it does on the evidence of members of the claim group themselves. It may be that emphasis changes once the lay evidence is filed.

5    However, what has occurred over the last few months, as a result (the applicant contends) of work being undertaken by the applicant’s experts (and, it would seem principally Associate Professor Draper), is that the applicant has foreshadowed material changes to the nature and scope of its claim. These matters have been foreshadowed both at case management hearings before me, and at case management conferences before Registrars Colbran and Parkyn. The possible changes include (but are not limited to) changes to the apical ancestors identified in the application under s 61 of the Native Title Act 1993 (Cth), changes to the claim boundary, a change to the contentions regarding society (namely a society that is a bigger construct than that currently pleaded) and a claim for exclusive native title rights over currently unspecified parts of the claim area. It has also been indicated on behalf of the applicant that some aspects of the existing claim (such as a reliance on Letters Patent issued in February 1836 by His Majesty, William IV) may not be pressed.

6    On 19 September 2017, the applicant filed and served, pursuant to Directions by the Court, a notice indicating the changes it would seek to make to the apical ancestors upon which the native title claim is based.

7    Further, these changes were the subject of a case management conference held by Registrars Colbran and Parkyn on 26 September 2017, pursuant to Orders made by me on 24 August 2017. At that conference, the applicant proposed a significant number of changes to the trial preparation timetable, in part to accommodate these foreshadowed changes to the nature and scope of its claim. Various proposed orders were agreed between the parties. It was expressly noted that none of these changes were said to require vacation of the trial dates. The parties have been told, repeatedly, and in no uncertain terms by me, that the trial date of 3 April 2018 will be maintained. The need for this level of strictness is apparent from the history of this proceeding as I have set it out in Agius (No 4).

8    The immediate difficulty presented by the scope of these foreshadowed changes was the scheduled experts’ conference on 4 and 5 December 2017. It is clear that the experts (and the State in particular) would be asked to deal with a claim of quite different nature and scope than had previously been foreshadowed, for the last 17 years.

9    The parties were asked to provide proposed orders reflecting the outcome of the case management conference. On the outcomes of the case management conference being communicated to my chambers by Registrars Colbran and Parkyn, the Court indicated to the parties via email sent on 29 September 2017 that the Court was comfortable with the proposed variations to the trial programming orders, except for the following:

    the timing for the filing of outlines of submission, which the parties proposed to be filed by 20 March 2018 and 27 March 2018. The parties were informed that any proposed minutes of order should state that the applicant is required to file its outline by 19 March 2018 and any active respondent file its outline by 22 March 2018; and

    the timing of the proposed replacement Statement of Issues, Facts and Contentions (SIFC). The parties were informed that given the possible scope of the proposed changes, the proposed replacement SIFC is to be filed prior to the first conference of experts. It was proposed to vary the Orders to allow the applicant to file its proposed replacement SIFC in November 2017, for any objections from the State and any other active respondent to file any objections to leave being granted for the proposed replacement SIFC by 2 February 2018, and for a case management hearing to deal with the issue in the week of 5 February 2018.

10    No proposed orders were received by the parties following this email.

11    On 19 October 2017, my associate followed up with the parties as follows:

Dear parties

I refer to the above proceeding and the proposed minutes of consent orders which have now been with the parties for several weeks.

Her Honour has been informed that the State and the Commonwealth consent to the Court’s variations to the proposed orders, but that the applicant has indicated it has some difficulties with the timing of the proposed replacement Statement of Issues, Facts and Contentions being filed before the first experts’ conference.

Her Honour’s view is that if, having foreshadowed a change in key aspects of its case and in particular a change to the apical ancestors, the applicant does not set out with sufficient legal and factual clarity the nature of its claim for native title in a timely fashion, then the utility of the first experts’ conference will be put in jeopardy. Indeed, the utility of the Court’s carefully programmed orders preparing this matter for trial may be put in jeopardy. Her Honour is not inclined to allow that to occur.

Therefore, the parties should understand that the amendment to paragraphs 11 and 12 of the Orders made on 24 August 2017 relating to the filing of the proposed replacement Statement of Issues, Facts and Contentions prior to the experts’ conference, on a date to be fixed in November, is an order her Honour is currently minded to make.

If the applicant wishes to oppose the making of that order, the applicant has leave to file and serve submissions (limited to five pages) and any affidavit material on which the applicant wishes to rely in support of its opposition to that proposed order, or in support of any variations to the proposed order, on or before 2 November 2017. The State and Commonwealth have leave to file any reply submissions (limited to three pages) and any affidavit material on or before 9 November 2017. Her Honour will then make a decision on the papers.

12    It took some time for the applicant to respond to this communication. When it did, the proposal that the applicant be directed to file a proposed replacement SIFC prior to the experts’ conference on 4 and 5 December 2017 was indeed opposed by the applicant. In affidavit material filed on 3 November 2017, Mr Campbell deposed to the proposed holding of a series of authorisation meetings on 25 November 2017, for the purposes of the claim group considering the authorisation of a number of matters which he identified as: “the addition of Apical Ancestors (Proposed Apical Ancestors) to the Kaurna Claim Group Description pursuant to evidence provided by anthropologist Dr. Neale Draper”; the authorisation of “the Kaurna Native Title Claim, the amendment to the Kaurna Native Title Claim, and an Applicant”; and “to discuss and determine issues relating to the Kaurna Native Title Claim Area boundaries and whether or not to authorise the making of new native title claims on behalf of the Kaurna Native Title Claim Group which overlap existing native title claims”.

13    The applicant filed submissions which contend, in summary:

    The current trial preparation orders contemplate two pre-trial stages: “first, the ‘at or around settlement’ stage culminating with the Registrar’s first report on or around 16 December 2017; second, the ‘continuation’ stage culminating with the Registrar’s second report on or around 27 March 2018”. This is clearly a reference to the scheduling of the two experts’ conferences.

    That dividing the issues into these two stages recognised the “applicant’s difficulties” in obtaining expert evidence on all the matters to be dealt with in the April 2018 trial.

    The two stage division contemplates that the applicant “will not know the full nature and extent of the expert evidence and the lay evidence upon which it will rely, in total, until 29 January 2018”.

    However, the applicant accepts it must “know its case ‘at or around settlement’ upon the completion of the 25 November authorisation meetings, by which time all of the applicant’s first stage experts’ reports will have been filed and served, and the claim group will have decided whether to authorise any change to the apical ancestors and/or any new overlapping claims”.

    Accordingly, the Court should give directions for a two stage proposed replacement SIFC: one due in late November before the December experts’ conference, and one due in February 2018. It submits the late November proposed replacement SIFC should address only:

    the relevant society and the country boundaries of the relevant group as at 1836;

    apical ancestors;

    the impacts of colonial settlement in the 1800s; and

    the selection of land for aboriginal reserves in around the 1840s.

    The early February proposed replacement SIFC should, the applicant submits, address the remainder of its claims on the question for trial in April 2018.

14    The applicant also made the following submission:

The applicant is substantially reliant upon the views and advice of its experts to formulate the particulars of its case.

(Emphasis added.)

15    I propose to make orders permitting the applicant to file its proposed replacement SIFC in two stages, but in doing so I should not be taken as accepting the adequacy or appropriateness of the contentions in the applicant’s submissions that it does not know its case yet, and will not know it until shortly before the 25 November 2017 authorisation meeting, and that it is substantially reliant upon the views and advice of its experts to formulate the particulars of its case. Those seem somewhat extraordinary propositions for a proceeding that has been on foot for 17 years.

16    Although the parties had, between themselves, reached agreement that the filing of the applicant’s lay evidence could be postponed until late January 2017, on further consideration this is not an order which I am prepared to make. The increasing concentration on expert evidence by the applicant, most evident from Mr Campbell’s latest affidavit to which I have referred above, apparently at the expense of a focus on lay evidence, is questionable. Evidence from claim group members is integral to any connection aspect of a claim for native title, including on the question of fundamental matters such as the appropriate apical ancestors.

17    I do not consider it is appropriate for there to be any further delay in the filing of the applicant’s lay evidence. The date of 15 December 2017 as the date for the filing of this material has been fixed for some time. I consider that evidence should be filed well ahead of the second experts’ conference so that the State, the respective experts and the Registrars who must conduct the conference, can be well across that material. Further, I consider the lay evidence should be filed well ahead of Associate Professor Draper’s second report on “all other connection issues” which is due to be filed on 29 January 2018. The lay evidence should not be filed at or around the same time as this report since, one assumes, a core purpose of this report is to express an expert opinion on the lay evidence given by claim group members as to connection issues such as continuity. It is also important that the State’s expert(s) have timely access to the lay evidence, so that there are no delays in the production of their responsive expert reports, due on 28 February 2018.

18    If there is a need to supplement any lay evidence at trial, by way of additional oral lay evidence, provided the State and the Commonwealth are given adequate and proper notice, then any such application can be considered.

19    It is imperative that the first stage of the proposed replacement SIFC is filed in accordance with these new orders, so that this document can assist in informing the issues to be discussed at the first experts’ conference on 4 and 5 December 2017. The second “stage” of the proposed replacement SIFC (dealing with all other matters) will be due on the date submitted by the applicant: namely 4 pm on 2 February 2018. Any objections to the applicant’s reliance on the proposed replacement SIFC (either the “first stage” proposed replacement SIFC or the “second stage” document) will be due by 4 pm on 9 February 2018.

20    The lay evidence will remain due on 15 December 2017. Therefore, there will be no amendment to the currently fixed dates for the filing of the State’s material in response.

21    The amendment sought of the date in para 27 of the current orders from 30 March 2018 to 29 March 2018 will be made.

22    The variations sought to para 30 of the current orders will be made, but the parties should note that 21 March 2018 is a firm date for the trial timetable, as the Court will need this document well in advance of the trial commencing.

23    Additional proposed orders 30A and 30B (concerning outlines of submissions ahead of trial) will be made in the terms sought, which takes into account my indication to the parties referred to at [9] above, however the remainder of the orders concerning post-hearing submissions will not be made. Post-hearing written submissions, and the need for any further oral hearing for the purpose of submissions, can be addressed at the conclusion of the trial itself.

24    Given the number of amendments now made to the trial preparation orders, commencing with White J’s orders, it is appropriate to vacate all the current orders and re-issue a consolidated set of orders, directed only to matters to be completed from today’s date. The parties and the Court can then work off one new set of orders only, rather than trying to match up orders which have been amended, vacated, varied and supplemented now on many occasions. Save for amendments to the orders relating to the proposed replacement SIFC to ensure only one document ends up before the Court, and an additional order providing for a response by the State and Commonwealth to the proposed replacement SIFC (an order which had been overlooked), the consolidated orders reflects the existing orders that need to remain in force.

Associate:

Dated:    15 November 2017