FEDERAL COURT OF AUSTRALIA
Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 4) [2023] FCA 642
File number: NTD 25 of 2020 Judgment of: BANKS-SMITH J Date of judgment: 14 June 2023 Catchwords: PRACTICE AND PROCEDURE - where applicants seek to rely on affidavit filed out of time - where trial underway and potentially relevant witnesses already cross-examined - significance of proposed evidence - whether delay adequately explained - where prejudice to respondent - respondent's objection upheld Legislation: Evidence Act 1995 (Cth) s 50
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117
Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900
Northern Territory of Australia v Griffiths [2017] FCAFC 106; (2017) 256 FCR 478
Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1
Division: General Division Registry: Northern Territory National Practice Area: Native Title Number of paragraphs: 43 Date of hearing: 13 June 2023 Counsel for the Applicants: Mr SA Glacken KC with Mr T Keely SC and Ms J Wang Solicitor for the Applicants: Northern Land Council Counsel for the Respondent: Mr D O'Leary SC with Mr L Peattie and Mr S Bryson Solicitor for the Respondent: Hutton McCarthy Lawyers Counsel for the Intervener: Ms N Kidson KC with Ms C Klease Solicitor for the Intervener: Australian Government Solicitor ORDERS
NTD 25 of 2020 BETWEEN: CASEY DAVEY, REGGIE O'RILEY, CHRIS PLUTO, DEON LANSEN, DAVID HARVEY, JOY FINLAY, GF (DECEASED) AND ADRIANNE FRIDAY ON BEHALF OF THE GUDANJI, YANYUWA AND YANYUWA-MARRA PEOPLES
First Applicant
TOP END (DEFAULT PBC/CLA) ABORIGINAL CORPORATION RNTBC
Second Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Intervener
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
14 JUNE 2023
THE COURT ORDERS THAT:
1.The objection by the respondent to the tender of the affidavit of Brian Kimmings filed 30 May 2023 is upheld.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
The trial of this compensation claim commenced on Monday, 5 June 2023. Save for closing submissions, it is listed for hearing until 23 June 2023. The trial commenced with evidence given on country within the area the subject of the McArthur River Project and Bing Bong Port, and also at Borroloola. These sites are described in previous interlocutory decisions in this proceeding.
The evidence on country was given over the course of four days by a number of witnesses, all of whom had earlier provided written affidavits that were filed for use in the proceeding. Some were cross-examined by counsel for the respondent (the Northern Territory) and the intervener (the Commonwealth).
The trial resumed in Darwin on 13 June 2023. On that date the applicants sought to tender an…
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- AGLC
- Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 4) [2023] FCA 642
- Case
- [2023] FCA 642
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the delay in filing the affidavit was justified, the significance of the proposed evidence, and the potential prejudice to the respondent if the affidavit were admitted. The court examined whether the applicants had provided a good explanation for the delay, if there had been an opportunity for discovery of source documents and cross-examination, and if the evidence could have been produced earlier. The court also considered the importance of the proposed evidence and whether it was relevant to the issue of compound interest in the context of native title compensation.
In reaching its decision, the court noted that the admission of late evidence requires the exercise of judicial discretion, taking into account various factors. The court found that the applicants had not provided a satisfactory explanation for the delay, and the evidence could have been produced earlier. Furthermore, the court determined that admitting the late affidavit would cause significant prejudice to the respondent, as it would undermine the fairness of the trial process. Consequently, the court upheld the respondent's objection to the tender of the affidavit of Brian Kimmings.
The final orders of the court were that the objection by the respondent to the tender of the affidavit of Brian Kimmings filed on 30 May 2023 was upheld. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The objection by the respondent to the tender of the affidavit of Brian Kimmings filed 30 May 2023 is upheld.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Counsel for the applicants and the Commonwealth referred to [133] of the reasons of the majority:[133]As has been observed, it is possible that there may be circumstances in which, by analogy with an award of damages at common law for loss of use of money, it would be just to award interest on a native title compensation claim on a compound interest basis (297). The Native Title Act provides that regard may be had to the rules applicable to compulsory acquisition of land, which, as has been seen, in effect import the rule in Pigott's Case. But the Native Title Act does not dictate that the rules applicable to compulsory acquisition of land are the only considerations to which regard may be had. Thus, as the trial judge posited (298), if the evidence established that, upon earlier payment of the compensation, the Claim Group would have put the compensation to work at a profit, or perhaps used it to defray costs of doing business, it may be that an award of compound interest would be warranted to compensate for the lost opportunity of investment or those costs, by analogy with damages awarded at common law to compensate for expenses incurred or opportunity costs arising from moneys paid away or withheld as a result of breach of contract or negligence (299). But, for the present, that point need not be decided. As the trial judge found (300), there was sparse evidence that the Claim Group would have invested the compensation at a profit and no suggestion that the Claim Group incurred costs that could have been avoided with the aid of an earlier payment of the compensation.Consideration A number of points arise from the extracts of the Timber Creek line of decisions. First, on Mansfield J's postulation, endorsed by the High Court, if the claim group established that it would have put the compensation to work at a profit, then an award of compound interest may have been warranted. That threshold would appear, as the Commonwealth submitted, to require evidence beyond speculation or supposition. Second, as appears from [264(1)] and [264(3)] of Mansfield J's reasons, the witnesses Josie Jones and Alan Griffiths were available and gave evidence about the use of funds and (relevantly in that case) the 'Bradshaw ILUA'. Third, the type of evidence that Mr Kimmings purports to give may well be relevant to a claim for compound interest. I accept that some of the proposed evidence may be of a similar nature to that referred to by Mansfield J at [264(2)] in the first instance decision. I am prepared to proceed on the basis that it may otherwise have been admitted, had there been notice (including by identification of material facts), compliance with case management processes, a good explanation for delay, an opportunity for discovery of source documents and cross‑examination, and absent significant prejudice. I will now turn to these matters. It is not in issue that a decision as to whether evidence that is produced late may be tendered requires the exercise of a discretion that takes into account a number of matters, including the importance of the proposed evidence, the prejudice to other parties and whether there is an explanation for the delay: see generally Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), speaking in the context of a late amendment to pleadings; and as referred to in the context of late evidence in Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117 at [24] (Perram J).