Bolton on behalf of the Southern Noongar Families v State of

[2002] FCA 1087

FEDERAL COURT OF AUSTRALIA

Bolton on behalf of the Southern Noongar Families v State of
Western Australia [2002] FCA 1087

NATIVE TITLE – directions hearing called for finalisation of arrangements for taking of preservation evidence in advance of substantive hearing of claims – programming issues arising associated with progress of claim – whether the applicants should file points of claim prior to preservation evidence hearing – importance of expeditious provision of land tenure information – hearing postponed.

ALLAN BOLTON & ORS ON BEHALF OF THE SOUTHERN NOONGAR FAMILIES & ALLAN BOLTON & ORS ON BEHALF OF THE WAGYL KAIP & PATRICIA MORICH & ORS ON BEHALF OF THE WOM-BER PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS

WAG 6134 of 1998, WAG 6286 of 1998, AND WAG 6130 (part) of 1998

CONTI J
2 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAG 6134 of 1998 WAG 6286 of 1998 WAG 6130 (part) of 1998

BETWEEN:	ALLAN BOLTON & ORS ON BEHALF OF THE SOUTHERN NOONGAR FAMILIES FIRST APPLICANTS
AND:	ALLAN BOLTON & ORS ON BEHALF OF THE WAGYL KAIP PEOPLE SECOND APPLICANTS
AND	PATRICIA MORICH & ORS ON BEHALF OF THE WOM-BER PEOPLE THIRD APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS
JUDGE:	CONTI J
DATE OF ORDER:	2 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

No orders made.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAG 6134 of 1998 WAG 6286 of 1998 WAG 6130 (part) of 1998

BETWEEN:	ALLAN BOLTON & ORS ON BEHALF OF THE SOUTHERN NOONGAR FAMILIES FIRST APPLICANTS
AND:	ALLAN BOLTON & ORS ON BEHALF OF THE WAGYL KAIP PEOPLE SECOND APPLICANTS
AND	PATRICIA MORICH & ORS ON BEHALF OF THE WOM-BER PEOPLE THIRD APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS

JUDGE:	CONTI J
DATE:	2 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR POSTPONEMENT OF HEARING OF
PRESERVATION EVIDENCE

1. I place formally on record my reasons for postponing the hearing of preservation testimonies which had been scheduled for the week commencing 28 October 2002. The taking of preservation evidence had been scheduled at the conclusion of the directions hearing on 18 July 2002, and a directions hearing had been fixed for 22 August 2002 for the purpose of completing arrangements and making further directions generally in relation to the taking of that preservation evidence.

2. Approximately 30 minutes prior to the commencement of the directions hearing on 22 August 2002, my associate received from the South West Aboriginal Land and Sea Council a facsimile message bearing date 22 August 2002 relating to the directions of French J made in the present proceedings on 7 September 2000, and also to subsequent developments in the law impacting on those orders. Those submissions have been retained on the Court file.

3. Earlier on 19 August 2002, I had received from Hunt & Humphrey by facsimile message certain orders in the nature of procedural directions proposed to be sought on behalf of the Western Australian Fishing Industries Council (“WAFIC”) for the purposes of the hearing on 22 August 2002, which document has also been retained on the Court file.

4. At the commencement of the hearing on 22 August 2002, Mr Rynne of Counsel for the applicants informed me in the following terms inter alia:

   “… My client had hoped to assist far more than three people in leading their preservation evidence. I had a list of persons who are aged and infirm goes (sic) well beyond what I was instructed original[ly] as ten. A quick glance at this list indicates that there is at least 20 people whose names have been supplied by the claim group. So perhaps your Honour rather than squeeze your Honour and the person seeking to give evidence in… it may be prudent then to adjourn the preservation [evidence] to the next available block of dates that your Honour has.”

5. I then raised with Mr Rynne the circumstance that for the purpose of adducing evidence from the Aboriginal witnesses proposed to be called, I had received from Lindgren J a list of the directions which his Honour had given for the adducement of evidence by or on behalf of the Aboriginal applicants in proceedings in Ron Harrington-Smith & Ors v State of Western Australia and Ors (No. WAG 6005 of 1998). The following exchange then took place between us:

   MR RYNNE:         Your Honour, I can tell you my view on that. As my colleagues at the bar table will tell you I rather forcibly resisted any attempt to impose Wongatha type directions but that only arose out of ignorance and I hadn’t seen the directions. I have recently had an opportunity to read a published decision of Lindgren J relevant to how the evidence is presented and it certainly seemed to me to be a reasonable proposal given the difficulties experienced in the claim that he is running and in the attendant experience that all parties have gained from it so there definitely appears some merit in your Honour’s proposals. I would appreciate, however, if your Honour could send me a fax of the document you’re relying on.

   HIS HONOUR:     Yes, I will do that immediately. Now, in those circumstances with uncertainty as to times I suppose it’s necessary to give some consideration to amendments to the proposed orders or perhaps to the withholding of certain of the proposed orders. Can you tell me again which are the three orders which are controversial?

   MR RYNNE:         Yes, your Honour, clause 2 on page 2, that’s the concert claim issue.

   HIS HONOUR:     Order 1 would focus for that particular order. What do you want to say about that?

   MR RYNNE:         Your Honour, in light of the issues that I’ve outlined in my written submissions it’s my contention that it’s inapposite to file a points of claim at this point. The points of claim may change so dramatically in light of the tenure information that is available that to constrict the evidence to a particular points of claim at this point is simply not going to assist the proceedings.

   HIS HONOUR:     What is the kind of order which you would have, generally speaking, in mind.

   MR RYNNE:         Your Honour, I’m proposing there be no order relevant to points of claim. For example, in the metropolitan claim where preservation evidence was led there, there was no points of claim. The evidence that the parties will lead is evidence of their connections to this claim areas for the purposes of preserving that evidence. To the extent that it may assist the parties I’m instructed that a summary of the evidence can be supplied, it can outline the issues to which the particular evidence will be addressed but my client, firstly, isn’t in a position to file a points of claim on behalf of these applicants at this point.

   HIS HONOUR:     What are the dynamics of a summary and a statement of issues?

   MR RYNNE:         As I say once the preservation evidence has been completed and instructions finally received then I don’t see any impediment to that evidence being summarised by way of a points of issues.

   HIS HONOUR:     So what you are saying is that the subject matter of proposed order 2 be postponed until after the preservation evidence?

   MR RYNNE:         Yes, well, until after the witness statements have been delivered. Sorry, your Honour, I think I misunderstood you there. In the event that the substance is a matter of a points of claim of sufficient particularity to address the application then, yes, that be adjourned until after preservation evidence. To the extent that the order refers to a summary points of claim to which the preservation evidence will be directed then I’d have no difficulty with that order.

   HIS HONOUR:     So how would you describe the document? A summary of?

   MR RYNNE:         Summary points of preservation evidence.

6. Ms White on behalf of the WAFIC next addressed the Court, and pointed to the uncertainty presently prevailing as to whether Mr Rynne or the South West Aboriginal Land & Sea Council represented the applicants in any of the subject claims, and in any event, whether in a limited capacity. She pointed to Mr Rynne’s previous indications to the Court of the possibility that all of the South West claims, not yet listed before me but others “further abroad, could be combined into a Pan Noongar claim or a claim of some other nature and, as yet, that nature is unspecified”. She continued as follows:

   “We are currently completely in the dark as to eventually what basis the claim or the claims will be argued upon and that’s really the prejudice that we say, a lack of a points of claim, at this point in time before the preservation evidence is to be given would cause the respondents to suffer. So we say that there should be at least a document outlining the basis on which the claim is made to which that preservation evidence is being directed and in relation to a number of other proceedings where there have been unrepresented applicant parties these parties have managed to produce documents and possibly they are not the same documents that might be produced by lawyers representing those parties but they have been able to produce documents that address matters that we’re concerned about.

   For example, Mr Corrie Bodney in the combined Metropolitan proceedings produced as an unrepresented applicant points of claim and substances of evidence totalling over 100 pages. In the Robibi proceedings before Merkel J the second applicants have managed to produce points of claim and various other documents themselves. Of course, we wouldn’t expect them to be necessarily to be in the same format or anything along those lines as those that may be produced by their lawyers but in our submission, the applicants have made these claims and they must have some idea of the basis on which those claims have been filed.

   In relation to my learned friend’s submissions about Ward (referring thereby to Mr Rynne’s written submissions filed 22 August 2002), your Honour, we recognise of course, that there is a certain amount of material to process in relation to questions of extinguishment however, we would say that the question of the establishment of Native Title is really a separate question that should be addressed before any extinguishment question arises. In fact, we say that in order to carry out the tests that the High Court has set down, it’s first important to determine the incidence and the rights that constitute that Native Title.

   Of course, there may be certain tenure which has now extinguished Native Title in its totality but in relation to the claim area as a whole and the nature of the claim, it’s still important to identify the individual rights or interests that make up that bundle of Native Title rights. So in our submission, your Honour, a points of claim should be filed which does address the basis of the claim and those rights that are claimed at the outset. Then questions of extinguishment we can deal with as and when they come.”

7. Mr Rorrison, who appeared for the Commonwealth, supported and adopted Ms White’s submissions, pointing out that if the preservation evidence is to be “of any use at all, it has to be done in the context of issues… in dispute as between the parties…”, and further that “there is currently an order for the filing of points of claim and an expert report, neither of which has been yet complied with”, referring thereby to the orders made by French J on 7 September 2000. Mr Rorrison’s submissions continued as follows:

   “Your Honour, as it stands, we have absolutely no understanding as what will be in issue if and when this matter comes on for preservation evidence. To that extent, your Honour, we will be cross-examining in the dark without any idea as to what is purely in dispute and we will be cross examining at large. For that reason we say that points of claim ought to be filed before the preservation evidence, so that we can at least have some chance of knowing where we are going.

   It would also lessen the likelihood, of any subsequent application for recall of these witnesses, as has happened in other cases by reason of issues emerging as the case proceeds. Your Honour may be aware that recently in Queensland in the case of Kalkadoon Moore J has made orders for the filing of various materials prior to preservation evidence being called, including points of claim, expert reports, genialities and the like. We don’t go as far as that but we seek to strike a balance between what is achievable and what is fair, as between the parties and for that reason say that points of claim ought to be provided. If it please your Honour.”

8. Mr Ranson, who appeared for the State of Western Australia, stated that the State did not require points of claim or any other document in advance, conceding that “… in an ideal world [points of claim] would be useful and I understand the prejudices that my learned friends, Ms White and Mr Rorrison talk about but the State’s position is that it is not required. I think we understand perhaps more acutely the difficulties that Mr Rynne is facing, particularly in terms of coming to terms with the land tenure situation”. Mr Ranson continued as follows:

   “The State, as your Honour would probably be aware, is currently conducting the gathering of all the relevant, current and historical tender information for the claim area. The indications from that process, the initial indications that we have is that the situation is unfortunately for the applicants, looking fairly bleak for them in terms of the amount of, particularly freehold, both current and historical freehold that exists in the claim area. …it certainly seems that there is going to prove to be a very significant amount of the claim area, certainly the majority and perhaps the vast majority of the claim area will have either a current freehold status or a freehold history. There are also a large number of perpetual leases and, of course, the recent Ward decision has also confirmed the extinguishing effect of the vesting of certain reserves and there are a number of reserves that fit that category as well in the claim area.

   So I can understand where my friend, Mr Rynne is coming from in terms of being in a difficult position framing his case at this stage when that tenure searching hasn’t been completed and I think the results of that tenure searching might have a fairly drastic effect on what’s left, as it were. I don’t think that’s the most important point for the issue of the points of claim but it is something that we have some information about, so I thought it was worth pointing it out but we certainly don’t push for a points of claim, your Honour.”

9. Ms Bishop, who appeared for the pastoral interests, supported the position adopted by Ms White and Mr Rorrison, as follows:

   “A point of claim in our view provides a context for the particular preservation evidence that has been given in relation particularly, your Honour, to proof of Native Title issues, specifically the rights and interests that are said to comprise the Native Title, as well as the basis for connection of the people claiming that connection to the country.

   It also provides, we would say, your Honour, a more focused view in terms of cross-examination which assumes more importance in this case because of the lack of any expert reports that had been filed that often in other cases provide the necessary focus for the cross-examination although I would say, your Honour, even in that case, that is usually in conjunction with the points of claim. In this case if we are saying we’re not having the points of claim, then effectively, we’ve got nothing other than the substances of evidence to guide us specifically in relation to preservation evidence but nothing in relation to the general nature of the claim itself.

   So it’s our view that without such points of claim, it is nether satisfactory to our clients or indeed, respondents generally and certainly less than fair, in our submission.”

10. Ms White thereafter responded to the effect that the regime of directions put in place by Lindgren J in the Wongatha proceedings “was a fair compromise between all the parties” and that her clients would support very similar orders to those made by his Honour, but with the following caveat:

    “… the usefulness of those particular orders may depend considerably [on] the type of substances of evidence that are produced. So, unless there really are substances that have sufficient detail to appraise the parties of the matters on which evidence will be given these orders will probably not be as useful as we have experienced in the Wongatha hearing…”

11. Mr Ranson also indicated the following instructions which he had received:

    “I’ve been instructed that the State intends in the near future to write to the Court seeking a regional case management conference for this matter and other matters in the south-west, to be held at some point later this year. That case management conference is, in the State’s view, intended to perhaps try and rationalise some of these cases and the timetables for them, and to try and deal with some of the difficulties that applicants in particular are having in moving the matters forward.

    It also relates to some degree to the matter I was speaking to your Honour about earlier which is the tenure position which we think is very significant in this part of the State. And much of the relevant tenure information will have been completed and gathered within the next few months. I have been instructed to advise your Honour that we will be writing to the Court to that effect, probably in the next week or so. Whether or not that has any effect on your Honour’s plans for the immediate future of this matter I’m not sure, but it may be relevant.”

12. In the light of what had been told and submitted to me as recorded above, I informed the representatives of the participating parties that I did not propose to become involved in a process which was “erratic and uncontrollable”, and further that the Court would “make itself available for expeditious hearings” provided that there was fairness extended to the respondents and that there were guidelines and rules implemented, rather than some form of ad hoc process. Thereafter Mr Ranson afforded to the Court a measure of comfort as follows:

    “I think those are the concerns that precisely underlie what the State is proposing to do. I might also say, your Honour, that with respect to the tenure information the existing order made by his Honour, French J, in 2000 is still intended to be complied with by the State and that envisages the tender information being provided I think at a point in October of this year. So, it is not the case that the State is in default or is seeking to put off the provision of the tenure information. It is just a large job.

    …

    It is not our intention to seek to press people to move at a particular speed. In fact if anything it is perhaps the opposite. It is intended by the State to seek to understand the reasons why this matter and some of the similar matters are striking these problems and seek to find a way around them that is fair to all parties.”

13. In the result, I postponed what has become the relatively short hearing set aside for the taking of preservation evidence. I must now leave the further hearing of interlocutory proceedings in abeyance until the applicants are in a position to be more precise as to the ambit of the taking of the proposed preservation evidence, and as to the whereabouts of so doing, so that the final terms of the orders as to the giving of preservation evidence in chief can be settled. Those orders should be in principle substantially along the lines of the orders for the taking of evidence in the Wongatha proceedings, after which a timetable can be set, hopefully by consent. In the meantime, the applicants should endeavour generally to advance compliance with the directions of French J, made on 7 September 2000. In that regard, I observe that there is substance in the submissions made on behalf of WAFIC and the Commonwealth for the filing by the applicants of points of claim prior to the taking of preservation evidence, particularly of the scope which has now been outlined by Mr Rynne. In the meantime the State of Western Australia should expedite preparation of some form of catalogue of the freehold and leasehold interests located within the claim areas.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti J.

Associate:

Dated:            2 September 2002

Counsel assisting the applicants:	M Rynne
Organisation assisting the applicants:	South West Aboriginal Land and Sea Council
Solicitors in attendance for the respondents	G Ranson (Crown Solicitor’s Office) E Lacey (Minter Ellison) P Bishop (Jackson McDonald) K White (Hunt & Humphry) P Brunner (WA Farmers Federation) T Scutt (National Native Title Tribunal) A Rorrison (Australian Government Solicitor)
Date of Hearing:	22 August 2002
Date of Reasons:	2 September 2002