Bullen v State of Western Australia

[2002] FCA 1107

FEDERAL COURT OF AUSTRALIA

Bullen v State of Western Australia [2002] FCA 1107

MALCOLM JOHN BULLEN & ANOTHER, PATRICIA MORICH & OTHERS, ARTHUR DIMER & OTHERS and CEDRIC ANDERSON & OTHERS V STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6097 and part of 6130, 6221 and 6181 of 1998

GYLES J
SYDNEY
6 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6097 and part of 6130, 6221 and 6181 of 1998

BETWEEN:

MALCOLM JOHN BULLEN & ANOTHER
FIRST APPLICANT

PATRICIA MORICH & OTHERS
SECOND APPLICANT

ARTHUR DIMER & OTHERS
THIRD APPLICANT

CEDRIC ANDERSON & OTHERS
FOURTH APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

6 SEPTEMBER

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.In the event that any applicant considers it is necessary or appropriate to preserve the evidence of any witness prior to the substantive hearing of the proceeding, such evidence (“preservation evidence”) will be taken in the two week period commencing 31 March 2003 (“the session”) in the Esperance region at a place or places to be nominated by the Court and, in doing so, will take the steps in the following paragraphs.

2.By 8 November 2002 any of the applicants who intends to lead preservation evidence during the session (“the notifying party”) is to notify all other parties of the following matters (“proposals”):

(a)the names and residential address of each witness proposed to be called;

(b)whether any restrictions are sought on the persons who may attend at the hearing of any evidence or upon the access to the transcript of any evidence, including the nature of the restrictions sought and the reasons in support;

(c)a proposed programme for the session detailing inter alia:

(i)the dates and places at which each witness will give evidence during the March session

(ii)the estimated length of time allocated to the testimony of each witness

(d)options for travel and accommodating of the Court and the parties;

(e)as to whether Court directed videos are sought, and the proposed regime for the same;

(f)a statement setting out:

(i)the cultural and customary concerns of the applicants which they wish the Court to take into account in conducting the proceedings; and

(ii)any proposals for how the court should conduct the proceedings to take account of those concerns.

3.By 22 November 2002 the parties so notified are to advise the notifying party as to any part or parts of the proposals of the notifying party with which they do not agree.

4.To the extent that there exists a dispute as to any aspect of the proposals, each notifying party shall file and serve a notice of motion supported by affidavit by 6 December 2002, returnable before Gyles J at the directions hearing referred to in paragraph 9 below.

5.Any applicant or respondent who wishes to respond to the affidavits of the notifying party may file and serve any affidavits in response thereto no later than 13 December 2002.

6.A note of the substance of evidence to be given by each witness who it is intended will give evidence during the session is to be filed and served by 31 January 2003.

7.Without prior leave of the Court on good cause being shown, a party will not be permitted to lead evidence from a witness during the session unless the preceding order has been complied with in respect of that witness.

8.On or before 31 January 2003 a notifying party shall file and serve a list of documents which it proposes to tender or refer to in evidence in the March session.

9.The matter be listed for a further directions hearing before Gyles J at 11:00am E.S.T. on Friday 20 December 2002 or such other date and time as may be fixed.

10.A person who gives evidence pursuant to these Orders may be recalled by any party with leave of the Court and give further evidence at the substantive hearing of the proceeding.

11.The parties have liberty to apply generally on 7 days’ notice.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 6097 and part of 6130, 6221 and 6181 of 1998

BETWEEN:

MALCOLM JOHN BULLEN & ANOTHER
FIRST APPLICANT

PATRICIA MORICH & OTHERS
SECOND APPLICANT

ARTHUR DIMER & OTHERS
THIRD APPLICANT

CEDRIC ANDERSON & OTHERS
FOURTH APPLICANT

AND:

STATE OF WESTERN AUSTRALIA
RESPONDENT

JUDGE:	GYLES J
DATE:	6 SEPTEMBER
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I heard competing submissions as to the Orders to be made in connection with a proposed hearing next year to take evidence to be preserved and have made those Orders today.  These are brief reasons for those Orders.  I will not recite the arguments which were advanced or set out the competing versions of the Orders which were put forward by the parties.

2. Generally speaking I have adopted the simple approach contended for by counsel for the first and third applicants.  The substantial objective of the proposed hearing is to take evidence which may otherwise be lost or rendered less valuable by the passing of time.  Delay in the resolution of this case (and other similar cases) makes that objective a high priority if justice to all parties is to be done.  As time has been set aside by the Court and the parties in the first half of next year for the case it is important that it be utilised.  Hearings of this kind in localities remote from the Court require considerable organisation and, once fixed, should not lightly be departed from.  In my view there is a much better chance of the hearing occurring in a satisfactory way in this case if the procedure is kept as simple as possible.

3. I appreciate that, in an ideal world, the more preparation that is done prior to the hearings the better, as it would make the evidence as a whole more reliable, and would minimise the necessity to recall witnesses at trial (if still available).  However, this proposed hearing is not the opportunity for a mini-trial.  The State, the principal proponent of the more structured regime, earlier agreed that the ultimate hearing and directions as to the preparation for it should be abandoned, and a much more leisury timetable for preparation substituted because of, amongst other things, resource difficulties and priorities of one kind or another.  I am anxious that the proposed hearing, preparation for the case generally and any mediation should all proceed with as little unnecessary duplication as possible.

4. I should also say that I have deliberately not ordered that statements of evidence be provided.  It should be assumed that, absent any contrary ruling in due course, evidence should be lead orally with no cross-examination to be permitted on any statement as to the substance of evidence which is provided pursuant to these Orders.  This, and any other relevant issue, can be taken up at the next directions hearing.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            6 September 2002

Counsel for the First and Third Applicants:	PJ Vincent
Solicitor for the First and Third Applicants:	Goldfields Land and Sea Council
Counsel for the Western Australia:	R Howlett
Solicitor for the Western Australia:	Crown Solicitor (WA)
Counsel for the Commonwealth:	R Webb
Solicitor for the Commonwealth:	Australian Government Solicitor
Counsel for the Western Australian Fishing Industry Council:	M McKenna
Solicitor for the Western Australian Fishing Industry Council:	Hunt & Humphry
Counsel for BP Australia Ltd:	G Thomson
Solicitor for BP Australia Ltd:	Jackson MacDonald
Counsel for the National Native Title Tribunal (amicus curiae):	T Scutt
Date of Hearing:	4 September 2002
Date of Judgment:	6 September 2002