FEDERAL COURT OF AUSTRALIA

Alvoen on behalf of the Wakaman People #5 v State of Queensland [2020] FCA 630

ORDERS

THE COURT ORDERS THAT:

1.    Orders 11 and 19 – 20 and 22 – 28 of the Orders made on 2 October 2019 (as varied by Orders 4 – 9 made on 29 January 2020) are vacated.

Evidence of Expert Witnesses in relation to Connection

2.    On or before 14 May 2020, each of the parties is to file 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. The parties will use best efforts to resolve any objections which are filed prior to the commencement of the hearing of the separate questions.

Evidence of Witnesses Other Than Expert Witnesses

3.    On or before 28 May 2020, the Applicant file and serve an amalgamated statement of evidence or affidavit (for a witness whom it proposes will give evidence in writing) from:

(a)    John Alvoen;

(b)    Lynette Brown;

(c)    Alan Holt;

(d)    Robyn Hooley;

(e)    Eric Rosendale;

(f)    Edward Thomas (Jnr); and

(g)    Francis Deemal.

provided that any such amalgamation does not adduce further or additional evidence.

4.    On or before 10 July 2020, the Applicant file and serve:

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

(b)    any further statement of evidence (for a witness whom it proposes will give evidence in writing) or outline of evidence (for evidence proposed to be led orally) for a lay witness, which further statement or outline of evidence is to be limited to the topics identified in paragraph 3 of the interlocutory application filed by the Applicant on 9 April 2020; and

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

5.    On or before 22 July 2020, each Indigenous Respondent file and serve:

(a)    an amended list of the proposed lay witnesses upon whose evidence the Indigenous Respondent will rely;

(b)    any further statement of evidence (for a witness whom it proposes will give evidence in writing) or outline of evidence (for evidence proposed to be led orally) for a lay witness, in response to the further statement or outline of evidence filed by the Applicant in accordance with Order 4 ; and

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

6.    On or before 3 August 2020, the State and each other Active Respondent file and serve:

(a)    an amended list of the proposed lay witnesses upon whose evidence it will rely;

(b)    any further statement of evidence for a lay witness or outline of evidence (for evidence proposed to be led orally) for a lay witness whom it proposes will give evidence in writing, in response to the further statement or outline of evidence filed by the Applicant in accordance with Order 4; or

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

7.    No party may lead evidence from a lay witness, where either a statement of evidence or outline of evidence has not been filed in accordance with:

(a)    Orders 6, 7 and 8 made on 2 October 2019; or

(b)    Orders 3, 4, 5 and 6,

without first obtaining leave of the Court.

8.    On or before 14 August 2020, each of the parties are to file any further notice identifying any parts of any statement or document filed in accordance with Orders 3, 4, 5 and 6 to which it intends to object with a brief statement identifying in each case the reasons for the objection. The parties will use their best efforts to resolve any objections which are filed prior to the commencement of the hearing of the separate questions.

9.    The matter be listed for a case management hearing before Registrar Grant on a date to be fixed no later than 28 August 2020 for the purpose of resolving any disagreement between the parties as to objections.

Documentary Evidence in relation to Connection

10.    On or before 21 August 2020, the parties are to file an indexed bundle of agreed documents to be tendered at the lay evidence tranche of the hearing of the separate question (lay evidence hearing), with any disputes regarding its preparation and contents to be dealt with by Registrar Grant at first instance.

Hearing schedule

11.    The Applicant, the State and the Active Respondents give written notice on or before 10 August 2020 of:

(a)    any lay witness not required to attend the lay evidence hearing for the purpose of giving oral evidence or for cross-examination; and

(b)    the parties’ best estimates for how long the party will cross-examine each lay witness the party requires to attend the lay evidence hearing.

12.    On or before 14 August 2020, the Applicant serve on the State and the Active Respondents a proposed timetable for the conduct of the lay evidence hearing (the draft hearing schedule), which draft hearing schedule shall include:

(a)    the on-country locations on or near the claim area where evidence is to be given and the identity of the witnesses to give evidence at each on-country location;

(b)    the parties’ best estimates for when each lay witness will be called to give evidence and how long each party will examine or cross-examine the witness.

13.    On a date to be fixed no later than 21 August 2020, the Applicant, State and any Active Respondent attend a case management hearing conducted by the Registrar, to agree a timetable for the conduct of the lay evidence hearing.

Trial

14.    A pre-trial case management hearing is listed for 9.30am on a date to be fixed after 3 August 2020.

15.    A trial of the separate questions is tentatively listed to commence at a place/s and on a date to be fixed after 18 September 2020 for an initial period of up to 3 weeks for the lay evidence hearing.

16.    The trial of the separate questions will resume, on a date and place to be fixed, for the hearing of expert evidence for a period of up to 1 week.

17.    The hearing of final submissions will occur at a time to be fixed.

Preservation of evidence hearing

18.    There be a hearing to hear and preserve the evidence of William Thomas (Preservation Evidence Hearing), with such hearing to take place for a period of two days on each of 13 July 2020 and 15 July 2020.

19.    The Preservation Evidence Hearing is to be a virtual hearing using Microsoft Teams remote access technology and will otherwise comply with the Court’s “National Practitioners/Litigants Guide to Virtual Hearings and Microsoft Teams” procedure.

20.    William Thomas will give his evidence using the video-conference facilities at the Kowanyama Aboriginal Shire Council and may have up to two (2) support persons in attendance whilst he gives evidence.

21.    On or before 4.00 pm on 25 May 2020, the Applicant is to file and serve an amalgamated statement of evidence or affidavit from William Thomas, provided that any such amalgamation does not adduce further or additional evidence.

22.    On or before 4.00 pm on 22 June 2020, the Applicant is to file and serve:

(a)    any further outline of evidence for William Thomas, which further outline of evidence is to be limited to the topics identified in paragraph 3 of the interlocutory application filed by the Applicant on 9 April 2020; and

(b)    a copy of each photograph or other document (appropriately identified, captioned or described) which it proposes to tender or refer to in the further evidence of William Thomas.

Statement of agreed facts and issues

23.    The Applicant, the State and each other Active Respondent attend mediation before Registrar Grant in respect of the statement of agreed facts and issues being developed by the parties, such mediation to be completed by 3 August 2020. The Registrar will provide a report to the Court in relation to the outcome of the mediation by 10 August 2020.

Other

24.    The matter will continue in intensive case management with Registrar Grant.

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

26.    The parties have liberty to apply and restore on three (3) days’ notice.

27.    Costs are reserved.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are four interlocutory applications in the same native title proceedings, which require determination. In substance, however, there is only one issue in dispute, because the parties have agreed on all other orders required to resolve the interlocutory applications. That issue concerns the scope of further lay evidence to be filed by the applicant. Before turning to this issue, it is useful to summarise the background facts which give context to the present interlocutory proceedings.

Background

2     On 6 February 2018 his Honour Justice Reeves ordered that the Wakaman proceedings – namely, proceedings in Wakaman People #3 (QUD746/2015); Wakaman People #4 (QUD728/2017); Wakaman People #5 (QUD178/2018); GAG Crystalbrook Station Pty Ltd (QUD143/2015); Lance Frank, Bradley Thomas and Emma Elizabeth O’Shea (QUD 350/2017); and that part of James William Malcolm and Janelle Lynette O’Shea (QUD351/2017) which is overlapped by QUD728/2017 – be referred to a Judicial Registrar, Native Title, to assist the parties to prepare and adopt a program to achieve a contested hearing on the issue of connection by early to mid-2020.

3    Subsequently, on 14 March 2019, Reeves J made trial programming orders (the trial programming orders) in each of the matters, and adjourned that part of QUD351/2017 which was not overlapped by QUD728/2017 pending a decision on the separate questions stated in the trial programming orders.

4    The trial programming orders have since been variously amended: relevantly, see the Court’s orders of 12 September 2019; 2 October 2019; 17 December 2019; 23 January 2020; and 29 January 2020. These amendments have been necessary for various reasons and have in most instances come about at the request of one or more of the parties.

5    Recently, the applicant filed four interlocutory applications which sought either further amendments to the trial programming orders or additional orders, namely the applicant’s interlocutory applications filed on:

    3 April 2020 (the trial vacation application);

    6 April 2020 (the preservation of evidence application);

    7 April 2020 (the statement of cultural and customary concerns application); and

    9 April 2020 (the amalgamation/further lay evidence application).

6    These four interlocutory applications were, among other matters, the subject of extensive discussion among the active parties at case management hearings convened by Judicial Registrar Grant (the Registrar) on 16 April 2020 and on 23 April 2020 respectively.

7    In the course of these case management hearings before the Registrar, the statement of cultural and customary concerns application was resolved by the consent of the active parties. This outcome is reflected in the Court’s Orders of 24 April 2020.

8    However, in the course of these case management hearings before the Registrar it became apparent that:

    while the premise of the trial vacation application was accepted by the active parties in light of the COVID-19 public health emergency, aspects of both the amalgamation/further lay evidence application and the preservation of evidence application remained in dispute and would require determination by the Court; and

    the most efficient way for all of the remaining issues in dispute to be narrowed would be for the parties to file submissions and either agreed or respective revised programming orders, and for the proceedings to then be brought back before me.

9    In the circumstances, I directed that the proceedings be listed for case management before me on 11 May 2020. It is convenient to record that the listing email for hearing sent by Ms Melinda Carr of the Registry on 24 April 2020 provided, relevantly:

Dear Practitioners,

I refer to the outcomes of yesterday’s CMH before the Registrar.

Please be advised that the proceedings are listed for a CMH before her Honour Justice Collier at 9:30 am on Monday, 11 May 2020.

Her Honour has requested that, by 4 pm on Wednesday, 6 May 2020, the Applicant and the active respondents file and serve:

•    agreed, or respective, programming orders aimed at progressing the proceedings to a trial commencing on a date to be fixed falling after 18 September 2020 (“programming orders”); and

•    written submissions, limited to 5 pages, in support of the programming orders, addressing:

•    the order 4 issue (as discussed at yesterday’s CMH before the Registrar); and

•    any other pertinent aspect of the programming orders.

Please note: It will be acceptable for parties to give effect to this request by filing written submissions annexing the programming orders (i.e. a single document, lodgement type: “submissions”). …

(Emphasis in original.)

10    On 6 May 2020, the State of Queensland filed its submissions and revised programming orders. Also on 6 May 2020, the applicant filed its submissions in which it confirmed, among other matters, its support for the State’s revised programming orders.

11    On 7 May 2020 the following parties filed submissions:

    GAG Crystalbrook Station Pty Ltd (GAG Crystalbrook), the non-claimant applicant in QUD 143 of 2015, represented by the firm Preston Law (through Mr David Kempton, a consultant of the firm); and

    other parties also represented by the firm Preston Law (but through Mr Andrew Kerr, a partner of the firm), namely:

•    Robert O’Shea; White River Resources Pty Ltd; Mark Edward Porter; Michael William Porter; Philip Henry Porter; Uwoykand Tribal Aboriginal Corporation; John Foote; Janelle Foote; Rex McClymont; Penny McClymont; and

•    Lance Frank O’Shea; Bradley Thomas O’Shea; Emma Elizabeth O’Shea; James William Malcolm O’Shea; and Janelle Lynette O’Shea (who are non-claimant applicants in a number of these proceedings),

(collectively: the Preston Law respondents).

12    On 8 May 2020, identical revised trial programming orders were filed on behalf of, respectively, GAG Crystalbrook and the Preston Law respondents. It is important to record that the draft programming orders and submissions filed on behalf of GAG Crystalbrook and the Preston Law respondents were adopted by the Indigenous respondents, Mr Rodney Chong and Ms Carol Chong (the Chongs). This was confirmed in an email sent to the Registry by the Chongs’ solicitor, Mr Peter Boulot, on 8 May 2020. This email also advised that Mr Boulot would not be appearing at the hearing.

13    The parties appeared before me on 11 May 2020 (the hearing). However, the parties advised at the outset of the hearing that, although the matters had been listed for case management only, they understood and accepted that the hearing was for the purpose of resolving, completely, the trial vacation application; the amalgamation/further lay evidence application; and the preservation of evidence application.

14    It was also common ground at the outset of the hearing that:

    the trial vacation application and the amalgamation/further lay evidence application would be resolved by the making of one or the other of the competing sets of revised programming orders; and

    the preservation of evidence application would be resolved by the making of certain additional orders.

Preservation of evidence application

15    On the morning of the hearing, the applicant circulated a set of programming orders in connection with this application. In the course of the hearing, the parties confirmed their contentment with these orders, subject to their agreement of mutually convenient hearing dates. Subsequent to the hearing, the parties (through the applicant’s solicitor, Mr Christopher Harriss, of the North Queensland Land Council (NQLC)) advised the Registrar of agreed hearing dates, thus resolving that application. In the circumstances, the orders resolving the preservation of evidence application comprise Orders 18 to 22 of the orders I now make.

Trial vacation application

16    It was common ground between the parties at earlier case management hearings before the Registrar that, due to the current COVID-19 public health emergency, it was necessary and appropriate that the trial presently listed to commence on 14 July 2020 be vacated and relisted to commence on a date falling after 18 September 2020. This common ground was reflected in the submissions filed ahead of the hearing and in both sets of competing programming orders.

the amalgamation/further lay evidence application: The order 4 issue

17    The submissions filed prior to the hearing disclosed that, in truth, the only application requiring determination by the Court was the amalgamation/further lay evidence application. As the submissions further made clear, the dispute in relation to this application was confined to the terms of Order 4, concerning the scope of the leave to be granted to the applicant to adduce further lay evidence.

18    For completeness I note that, prior to the hearing, there had been a dispute in relation to the terms of Order 3, which concerned the applicant’s proposal to amalgamate the existing lay evidence filed by the applicant in the proceedings. However, in their submissions, and at the hearing, GAG Crystalbrook and the Preston Law respondents agreed to the terms of Order 3 as expressed in the programming orders proposed by the State and the applicant.

19    The amalgamation/further lay evidence application was supported by the affidavit of Christopher Daniel Harriss filed on 9 April 2020 and the affidavit of Dianne Frances O’Rorke filed on 28 April 2020.

20    Materially, in the amalgamation/further lay evidence application, the applicant sought the following orders:

2.    The Applicant has leave to file further lay evidence to address issues raised in the following:

(a)    Non Expert Witness evidence, Map of Wakaman Country hand drawn by Rodney Chong and dated 5-4-01, filed 15 November 2019;

(b)    Expert Anthropological report, Ron Brunton (volumes 1 and 2), Ron Brunton filed 18 December 2019;

(c)    Responsive Anthropology Report, Andrew Sneddon, filed 9 January 2020;

(d)    Addendum to Expert Anthropological Report for Wakaman #3, #4, #5 Native Title Applications, filed 23 January 2020;

(e)    Report of Conference of Experts held 18-21 February 2020 in Brisbane,

(f)    The following additional reports, the subject of the Interlocutory Application filed 14 February 2020, that the solicitors for the Respondent GAG Crystalbrook Pty Ltd, has stated “should be filed in these proceedings” and that they “shall require the leave of the Court to file the reports”:

(i)    Review of Anthropological Reports on the Status of the Chong Family (With Particular Reference to the Wakaman People’s Native Title Claim (QG6148/98), Bruce Rigsby – November 2001;

(ii)    Part II, Wakaman – A Linguistic Puzzle, Wakaman Linguistic Research (Wakaman, Two Linguistic Varieties, One Name), David Wilkins – undated; and

(iii)    Wakaman Native Title: Anthropological Overview, James Weiner – June 2006.

3.     The further lay evidence referred to in paragraph 2 herein is limited to the following topics:

(a)    The moieties and sections that existed in the Wakaman society at sovereignty and how a moiety/section system operates within the Wakaman claim group today;

(b)    The clan structure;

(c)    The contemporary Wakaman belief in “totems”;

(d)    “Caring for country” engaged in by Wakaman People is according to traditional Wakaman laws and customs;

(e)    Spirits which demand certain behavioural responses by Wakaman People are derived from Wakaman laws and customs, and the beliefs of Wakaman People in the presence of deceased relations as spirits is in accordance with Wakaman traditional laws and customs;

(f)    The use of resources for hunting, fishing, bush tucker and other similar activities in the Wakaman claim areas is in accordance with Wakaman traditional laws and customs.

(Emphasis in original.)

21    It was common ground between the parties that the Court should grant leave to the applicant to file additional evidence. Where the parties parted company in respect of Order 4 concerned the scope of the further evidence to be filed.

22    The State and the applicant proposed the following version of Order 4:

4.    On or before 10 July 2020, the Applicants file and serve:

(a)    an amended list of the proposed witnesses (other than expert witnesses) (lay witnesses) upon whose evidence the Applicants will rely; and

(b)    any further statement of evidence (for a witness whom it proposes will give evidence in writing) or outline of evidence (for evidence proposed to be led orally) for a lay witness, which further statement or outline of evidence is to be limited to the topics identified in paragraph 3 of the interlocutory application filed by the Applicants on 14 April 2020; and

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

23    It is convenient to refer to this version as Order 4 Version 1.

24    GAG Crystalbrook, the Preston Law respondents and the Chongs proposed a version of Order 4 as follows:

4.    On or before 10 July 2020, the Applicants file and serve:

(a)    an amended list of the proposed witnesses (other than expert witnesses) (lay witnesses) providing statements of evidence or outline of evidence upon whose evidence the Applicants will rely; and

(b)    any further statement of evidence (for a witness whom it proposes will give evidence in writing) or outline of evidence (for evidence proposed to be led orally) for a lay witness which further statement or outline of evidence is to be limited to the specific matters contained in the following reports:

(i)    Wakaman: A Linguistic Puzzle: Wakaman Linguistic Research (Two Linguistic Varieties, One Names) David Wilkins

(ii)    A Review Anthropological Report on the Status of the Chong Family (with Particular reference to the Wakaman Peoples Native Title claim) QC61488 /98 Professor Bruce Rigsby November 2001)

(iii)    Wakaman Native Title Anthropological Overview Dr James Weiner June 2006

referred to by Dr Brunton in his reports filed on 18 December 2019

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

25    It is convenient to refer to this version as Order 4 Version 2.

26    It is also convenient to refer to the three reports identified at paragraph (b) in Order 4 Version 2 as the Three Reports.

27    The fundamental difference between the two versions of Order 4 is that:

    the State and the applicant proposed that the applicant be placed in a position to file and serve any further lay evidence, such evidence to be referable to the topics identified in paragraph 3 of the amalgamation/further lay evidence application; and

    GAG Crystalbrook, the Preston Law respondents and the Chongs proposed that Order 4 define the scope of such evidence as limited to the specific matters contained in the Three Reports, referred to by Dr Brunton in his reports.

Submissions of the parties relating to Order 4

28    In summary, the State submitted that the Court should prefer Order 4 Version 1 for the following reasons:

    Order 4 Version 2 is ambiguous and potentially difficult to enforce;

    There may be debate about whether a statement or outline purportedly filed in accordance with Order 4 Version 2 responded to “specific matters” contained in the Three Reports to which Dr Brunton referred;

    Order 4 Version 2 fails to give effect to the basis upon which leave to file further evidence has been sought. In the amalgamation/further lay evidence application, leave is sought by the applicant to not only address the matters set out in the Three Reports, but also to capture lay witness evidence claimants have not previously been willing to provide. This was explained in the Harriss affidavit at [11]; and

    In both versions of the proposed revised programming orders, Orders 5 and 6 make provision for the respondents to file responsive lay witness evidence. It follows that there is no apparent prejudice in granting the applicant leave to file further lay evidence in the terms sought by the applicant in the amalgamation/further lay evidence application.

29    The State also submitted that Order 4 Version 1 clearly defines the scope of the further lay evidence that may be filed, because it refers to specific topics identified in paragraph 3 of the amalgamation/further lay evidence application.

30    The applicant supported the position of the State because:

    Leave to file additional evidence in the terms sought by the applicant would permit the applicant to address objections made to its lay evidence by various respondents on or around 8 January 2020;

    Additional evidence which had more recently come to the attention of the applicant’s lawyer – including by some claimants who are able to provide further relevant evidence, and in the expert reports – would properly be the subject of formally filed evidence by the applicant; and

    None of the Three Reports were filed in the Court by 19 December 2019 as ordered by Justice Reeves on 2 October 2019. It would be just for the applicant to be able to address issues raised in those reports, and it would be unjust for such leave to be restricted to specific matters to which Dr Brunton chose to refer.

31    GAG Crystalbrook and the Preston Law respondents submitted, in summary:

    The amalgamation/further lay evidence application sought the filing of additional evidence to address issues raised in all expert materials filed to date and a map drawn by Mr Chong;

    The expert material could be conveniently put into two categories, namely expert material filed under existing programming orders, and the Three Reports relied on by Dr Brunton in providing his expert reports under those programming orders;

    The particular “issues” raised in the body of expert material filed which the applicant sought to address were not identified in either the amalgamation/further lay evidence application or Mr Harriss’ affidavit;

    The additional evidence sought to be filed by the applicant was of a broad range, usually characterising proof of a significant plank of a native title claim. Those matters go beyond the subject of comment by Dr Brunton;

    No explanation was provided for why the applicant ought to be permitted to re-open the evidence, other than that since the expert evidence was filed, the applicant has realised there may be more lay evidence forthcoming. The Court should infer that the applicant wishes to put on rebuttal evidence to the respondents’ material;

    The Three Reports merely formed part of the body of materials to which experts ought have regard in reaching their independent conclusions – they are not part of the case of any respondents;

    The Court should disregard the evidence of the O’Rorke affidavit, particularly where Ms O’Rorke referred to the Three Reports as “scoping reports” researched and drafted for the purpose of informing/advising the Land Council staff of the level of connection evidence available in the research area and to inform the decisions about funding further research;

    It was unclear why the Three Reports were not provided to the applicant’s expert Mr Daniel Leo prior to his preparation of his expert report; and

    The applicant had made forensic decisions about how to conduct its case, including not disclosing or relying on earlier connection reports and filing a particular body of lay and expert evidence. Those reports were used by Dr Brunton for a limited purpose involving the implications for pre-sovereignty society or societies in the area. However the applicant now apply to lead evidence that goes beyond addressing that purpose, and responding to all expert evidence on which the respondents’ cases are framed.

Consideration

32    The submissions put by GAG Crystalbrook and the Preston Law respondents have merit. On balance, however, I prefer Order 4 Version 1 proposed by the State and the applicant. I have formed this view for the following reasons.

33    First, as I have already observed, it is common ground that the applicant should be granted leave by the Court to file additional evidence; what is in issue is the scope of the further evidence to be filed.

34    To the extent that GAG Crystalbrook, the Preston Law respondents and the Chongs are concerned about the incurrence of additional costs by them in the proceedings referable to the filing of further evidence by the applicant, it is clear that this is an imposition they have already accepted to the extent of Order 4 Version 2. Claims of prejudice to these parties, including on the basis that they are privately funded, are accordingly of less weight than they otherwise would be.

35    Second, I do not accept the submission that the applicant has provided no basis to adduce further evidence within the scope of Order 4 Version 1.

36    I note in particular the supporting affidavit of Mr Harriss. Mr Harriss is the legal officer employed by NQLC with the day to day carriage of the Wakaman matters including all of those subject to these proceedings. Mr Harriss deposed, inter alia, that multiple affidavits for witnesses of the applicant had been filed over the years, and that more recently the matter had progressed into a purely litigation phase which had resulted in further affidavits being filed.

37    It is uncontroversial that objections have been filed in these proceedings in respect of the evidence of the applicant by the State and other respondents. Counsel for the applicant conceded at the hearing that at least some objections to its evidence have merit, and submitted that the filing of further evidence would address some of those objections. In particular, the applicant seeks the opportunity to address those objections by the amendment to its evidence in terms contemplated by Order 4 Version 2.

38    In my view this is a reasonable – and practical – approach to addressing objections to evidence in the substantive proceedings, commensurate with s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). It would be helpful to the Court, and no doubt all respondents, if the evidence of the applicant was refined.

39    At the hearing, Counsel for GAG Crystalbrook and the Preston Law respondents also submitted that this was not a case where inexperienced lawyers had failed to recognise the importance of evidence or were unable to effectively adduce evidence, and sought an extension of time to so adduce it. Rather, this was a case where the Three Reports had been deliberately withheld for 20 years pursuant to a deliberate forensic decision of the applicant.

40    At [10]-[12] of his affidavit, Mr Harriss explained how the applicant came to realise that further evidence could be adduced, and potentially should be adduced for the purposes of the trial. He deposed:

10.    Between 3 and 6 March 2020, NQLC staff, myself included, and Mr O’Gorman SC travelled to various sites in the Chillagoe, Tate River and Mangana region, and during this time we had on-country conferences with several Wakaman witnesses for the primary purposes of confirming on-country trial timeframes. Those Wakaman witnesses included:

(a)    Mr Billy Thomas

(b)    Mr Edward Thomas

(c)    Ms Maxine Go Sam

(d)    Ms Marlene See and

(e)    Ms Glenys Grogan.

11.    While we were visiting these sites the witnesses [sic] I was struck by the manner in which these people detailed their stores and other such evidence in much greater detail than they [sic] I had previously observed. Three sisters who are descended from the Wakaman apical ancestor Mick McTavish, Ms Maxine Go Sam, Ms Marlene See and Ms Glenys Grogan, gave much more evidence than I had observed them willing to provide in the past. Likewise, Mr Billy Thomas and Mr Edward Thomas both provided more evidence than I had previously observed them willing to provide in the past.

12.    In these circumstances, I am of the opinion that the Court would have better evidence before it if the Applicant was permitted to adduce evidence from key deponents.

41    In Wyman on behalf of the Bidjara People v State of Queensland (2015) 235 FCR 464; [2015] FCAFC 108 the Full Court observed:

190.    When one turns from questions of legal principle in relation to what needs to be proved for a court to make a determination that native title exists today, to the process of judicial assessment and exercise of judgment about these matters, the evidence led and the quality of that evidence becomes critical. Understanding, construing and appreciating the relevance of particular pieces of evidence, and how the evidence of claimants all fits together, becomes of primary importance.

(Emphasis added.)

42    To the extent that the Court is best placed to properly appreciate whether native title exists in respect of the substantive claim, the evidence led and the quality of that evidence becomes critical. Simultaneously, s 37M(1) of the Federal Court Act provides that the overarching purpose of civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

43    In this case, the promotion of the overarching purpose in s 37M is facilitated by the parties putting before the Court the best quality evidence they are able to present. There is no suggestion before me that the applicant has been dilatory in adducing its evidence – I note that GAG Crystalbrook and the Preston Law respondents made no criticism of the lawyers for the applicant in this respect. My understanding of Mr Harriss’ evidence is that while he was on country with witnesses, those witnesses were able to provide evidence in greater detail than he had previously observed.

44    I accept this explanation by Mr Harriss for the purposes of the amalgamation/further lay evidence application. I am not prepared to infer that the applicant or its legal representatives had failed to adduce evidence in a proper manner to date.

45    Ultimately, I infer from the evidence of Mr Harriss that, at present, the best quality evidence is not before the Court. The Court will inevitably be hampered in its consideration of the respective rights of all parties unless this is rectified.

46    Third, in relation to whether the applicant had made a deliberate forensic choice not to rely on the Three Reports, GAG Crystalbrook and the Preston Law Respondents essentially submitted that, because the applicant deliberately chose not to rely on those reports, it should be refused leave to introduce further evidence other than within the scope of Order 4 Version 2.

47    The applicant conceded that it chose not to rely on the Three Reports. This was clear from the evidence of both Ms O’Rorke and Mr Harriss. However, and particularly in light of the preparedness of all parties to accept further evidence being adduced, I see no reason at this stage why the applicant should be limited in adducing further evidence because of its earlier decision relating to the Three Reports.

48    The substantive issues in this case have not been heard. Both sets of draft programming orders contemplate further evidence being filed prior to the hearing – insofar as concerns the active respondents I note proposed Orders 5 and 6. While there have been extensive discussions between the parties, and considerable activity to progress the proceedings, it could in no way be said that this litigation is at a late stage, much less ready for hearing. This is not a case where, having made deliberate forensic decisions during the course of a trial not to call evidence, a party has sought to re-open its case after the evidence had closed: see Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 and Advanced Fuels Technology v Blythe [2017] VSC 250. As Clarke JA (for the Court of Appeal) pointed out in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 476:

If, however, counsel inadvertently fails to call a witness different considerations arise and, as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead.

49    I reject the submission that the evidence at this stage has “closed” in the sense described in such cases as Smith – all parties anticipate the opportunity to file further evidence regardless of which version of Order 4 the Court accepts. In the circumstances, I do not perceive the justice of the case demands a restriction on the applicant adducing further evidence in the terms of Order 4 Version 2.

50    Fourth, I note the submission at the hearing by Counsel for GAG Crystalbrook and the Preston Law respondents that an order allowing the applicant to adduce a broader range of evidence disregarded earlier orders referable to the filing of evidence in these proceedings. This argument is not persuasive in circumstances where both versions of Order 4, and Orders 5 and 6, anticipate both the applicant and relevant respondents filing further evidence in any event.

51    Fifth, the parties are ad idem on the prospect of the trial – currently listed for three weeks commencing the week beginning 13 July 2020 – being vacated and relisted to later in 2020. The draft revised programming orders agreed by the parties anticipate this eventuality. There is no temporal prejudice to the respondents from the applicant being granted the opportunity to adduce further lay evidence in terms of Order 4 Version 1. Similarly, there is no prejudice to the applicant from any responsive evidence adduced by the respondents being adduced referable to further evidence of the applicant. Programming orders can properly address the requirements of all parties to adduce that evidence.

52    Sixth, GAG Crystalbrook and the Preston Law respondents were critical of the O’Rorke affidavit, particularly [7] and [8] where Ms O’Rorke deposed as follows:

7.    I drafted the terms of reference by which Mr Daniel Leo was engaged and those terms deliberately excluded the following previous Wakaman research reports:

(a)    “Wakaman People Native Title Determination Application (QC 97/40) Connection Report, For the Wakaman Native Title Applicants and the North Queensland Land Council Aboriginal Corporation” by Dr Suzi Hutchings, June 2001 (hereafter the “Hutchings report”);

(b)    “Part 1, Evidence of Connection, Anthropological analysis of the Chong Family’s Wakaman Connection” by Dundee Mitchell, undated (hereafter the “Mitchell report”),

(c)    “Part II, Wakaman: A Linguistic Puzzle” by David Wilkins, undated (hereafter the “Wilkins report”);

(d)    “Review of Anthropological Reports on the Status of the Chong Family (With Particular Reference to the Wakaman People’s Native Title Claim (QG6148/98)) A report to the North Queensland Land Council” prepared by Professor Bruce Rigsby November 2001 (hereafter the “Rigsby report”); and

(e)    “Wakaman Native Title: Anthropological Overview, June 2006 Dr James Weiner, Report to North Queensland Land Council” (hereafter the “Weiner report”).

8.    The reports at 7 (a) to (e) above were excluded from Mr Leo’s research terms of reference for a number or [sic] reasons. At the time I engaged Mr Leo it was my view that these reports were limited to single families, out of date, and/or advised that spending public funds on further native title research at that time would not be productive, not due to lack of evidence as that remained unknown, but due to the nature of some of the relationships in the community. The authors of the excluded reports state that they did not have sufficient access to the knowledge holders in the region and as a result, could not properly comment on the quantity or quality of evidence available. Therefore, in my view, these reports did not possess the breadth and depth of ethnographic detail required to be considered useful as native title evidence. These reports were contracted as what I refer to as “scoping reports”, that is they were researched and drafted for the purpose of informing/advising the Land Council staff of the level of connection evidence available in the research area, and thus to the viability of meeting the standard of evidence in order to fund any further research. It was decided the Consultant Mr Leo could do his research best without access to the above reports in part so he could approach all informants demonstrating his professional objectivity from the start.

53    Counsel for GAG Crystalbrook and the Preston Law respondents submitted, inter alia, that:

    Ms O’Rorke’s evidence at [8] that “It was decided the Consultant Mr Leo could do his research best without access to the above reports in part so he could approach all informants demonstrating his professional objectivity from the start” did not make sense, when realistically the objectivity of Mr Leo would best have been demonstrated by him having access to all relevant material (including the Three Reports);

    In her affidavit Ms O’Rorke referred to reports other than the Three Reports, which were not relevant;

    Ms O’Rorke’s opinion at [8] that the Three Reports were not considered useful as native title evidence because, inter alia, they were “limited to single families, out of date, and/or [she was] advised that spending on further native title research would not be productive”, and were “scoping reports”, was opinion evidence which was inadmissible because Ms O’Rorke was not an expert, and had not given expert evidence;

    Ms O’Rorke’s affidavit was deficient in that it did not annex material to which she referred in the body of her affidavit;

    GAG Crystalbrook and the Preston Law respondents may have sought Ms O’Rorke to be available for cross-examination at the interlocutory hearing had circumstances permitted; and

    Overall, GAG Crystalbrook and the Preston Law respondents objected to Ms O’Rorke’s evidence.

54    While I note this criticism of Ms O’Rorke, I am not prepared to exclude her evidence in the context of the present interlocutory proceedings. In particular, I note my recent observations in Kitchen v Director of Professional Services Review under s 83 of the Health Insurance Act 1973 (Cth) (No 2) [2019] FCA 2022:

49. I note that the evidence before the Court is, at this stage, somewhat unsatisfactory. Counsel for both the applicant and the respondents identified flaws in each other’s evidence before me. I further note, however, that the Court may accept evidence at an interlocutory level as forming a proper basis for interlocutory relief: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 1225 at [72] and authorities cited in DB Marketing Solutions Pty Ltd (formerly known as Auto Xtreme Electronics Pty Ltd) v Cause [2014] FCA 1026 at [11].

(Emphasis added.)

55    In the present context:

    Ms O’Rorke deposed that she was a senior anthropologist, and the co-ordinating anthropologist at NQLC at material times. In particular, Ms O’Rorke engaged and managed consultant anthropologists for NQLC’s various native title matters.

    Ms O’Rorke gave evidence explaining why the applicant chose not to provide, inter alia, the Three Reports to the applicant’s expert Mr Daniel Leo.

56    Ms O’Rorke did not purport to give evidence as an expert within the meaning of s 79 of the Evidence Act 1995 (Cth) or the Federal Court’s Expert Evidence Practice Note (GPN-EXPT).

57    Ms O’Rorke’s affidavit was provided as evidence of the state of mind of the applicant for its decision not to brief Mr Leo with the Three Reports. It is likely that this evidence would not be admissible in its current form to establish whether the Three Reports were, in fact, “scoping reports” or were defective for the reasons she deposed. However, the Court is not being called on at this point to form a view about the correctness or otherwise of Ms O’Rorke’s statements.

58    Elements of Ms O’Rorke’s evidence were unsatisfactory, however I consider her affidavit is admissible for the purposes of an interlocutory hearing as explaining the reasons for the applicant’s decision not to brief Mr Leo with the Three Reports.

59    While the point made by Counsel for GAG Crystalbrook and the Preston Law respondents – concerning the objectivity or otherwise of Mr Leo in having access to all relevant material – is sound, I accept that the view taken by the applicant concerning the Three Reports was as deposed by Ms O’Rorke.

60    I also consider that, had GAG Crystalbrook and the Preston Law respondents had concerns about the probity of Ms O’Rorke’s evidence, they could have objected to it at some point between the date of filing (namely 28 April 2020) and the hearing on 11 May 2020. To my knowledge no formal objection or application referable to an objection was filed, or made, during that period.

61    Seventh, GAG Crystalbrook and the Preston Law respondents submitted (in summary) that the applicant seeks to revisit all evidence referable to a substantiation of a native title claim under the Native Title Act 1993 (Cth) and, in the words of Counsel, take the matter “back to square one”. The terms of paragraph 3 of the amalgamation/further lay evidence application refer to a broad range of topics. However, as Counsel for the State submitted such elements do not include evidence relating, for example, to dreaming or mythological narratives usually explained in native title applications.

62    Further, it is clear that the matter has substantially progressed to date, to the point where, at the hearing, the parties were in accord that there were many facts to which they were all agreed. Indeed I am satisfied that, irrespective which version of Order 4 is made, the proceedings will not revert to “square one” as a number of respondents submitted.

63    Eighth and finally, I accept the submissions of the State and the applicant that the terms of Order 4 Version 2 pose the risk of ambiguity in adducing satisfactory evidence by the applicant. I note in particular the prospect of debate as to precisely what is meant by evidence referable “specific matters” to which Dr Brunton referred in his reports. The State and the applicant have defined the scope of evidence the applicant proposes to adduce by reference to the matters identified in paragraph 3 of the amalgamation/further lay evidence application. The terms of Order 4 Version 1 offer certainty in respect of proposed evidence of the applicant, which is an important factor for the Court to take into account in granting leave as sought.

64    I conclude that the interests of justice favour a form of order in the terms of Order 4 Version 1.

Statement of agreed facts

65    One further matter that was the subject of submissions at the hearing was the active parties’ development of a statement of agreed facts and issues in the proceedings (SOAFAI). This matter was raised by Counsel for the State, who submitted (in summary) that:

    the active parties had, for some time, been developing a SOAFAI on a “without prejudice” and confidential basis; but

    negotiations in relation to this document had stalled as a consequence of the dispute about the scope of the leave to be granted to the applicant to adduce further lay evidence.

66    All parties accepted that a SOAFAI would be beneficial in the proceedings, for the parties and the Court. However, the parties were apart on the question of how to progress finalisation of the SOAFAI in light of further lay evidence to be filed.

67    At the hearing, the State and the applicant urged the Court to make orders requiring GAG Crystalbrook, the Preston Law respondents and the Chongs to respond to the latest draft of the SOAFAI, and that the SOAFAI should be agreed and filed as soon as possible to bring definition to the issues in the proceedings. This was in circumstances where the matters the SOAFAI would cover in its current form, including the “at sovereignty” position and the position with respect to other matters such as non-contentious apical ancestors, would not be affected, to any degree, by the further evidence to be adduced by the applicant.

68    Counsel for GAG Crystalbrook and the Preston Law respondents confirmed that negotiations in relation to the SOAFAI had stalled, and submitted that negotiations in relation to that document should be deferred, at least, until after the applicant’s further lay evidence is filed. Counsel further argued that the contents of the SOAFAI in its current form could be affected to some degree by the further evidence to be adduced by the applicant, and requiring the parties to agree on the SOAFAI prematurely could result in costs being incurred unnecessarily.

69    In my view there is substantial benefit to the Court and the parties for a SOAFAI to be agreed and filed in the near term. However, it is unclear to me at present how the filing of further evidence by the parties will influence that agreement. The SOAFAI was an initiative of the parties, developed in the course of case management. At this stage I consider it appropriate for this approach to continue. Accordingly, I will order the parties to attend mediation before the Registrar in respect of the SOAFAI, such mediation to be completed by 3 August 2020 (by which date the respondents will have filed any responsive evidence pursuant to Orders 5 and 6). In this way the parties will have both opportunity and time to consider the facts and issues to which they may be prepared to agree in terms of this litigation prior to trial.

conclusion

70    I make Orders in accordance with these reasons.

Associate:

Dated:    13 May 2020