Gilla on behalf of the Yugunga-Nya People v State of Western Australia
[2018] FCA 1976
•6 December 2018
FEDERAL COURT OF AUSTRALIA
Gilla on behalf of the Yugunga-Nya People v State of Western Australia [2018] FCA 1976
File number: WAD 6132 of 1998 Judge: BARKER J Date of judgment: 6 December 2018 Date of hearing: 5 December 2018 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: Ms CI Taggart Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the State of Western Australia: Mr DM Gorman Solicitor for the State of Western Australia: State Solicitor’s Office Counsel for the Commonwealth of Australia: Ms M Jackson Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the Indigenous Respondents: Mr RI Viner AO QC ORDERS
WAD 6132 of 1998 BETWEEN: EVELYN GILLA AND OTHERS ON BEHALF OF THE YUGUNGA-NYA PEOPLE
Applicant
AND: STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent
JUDGE:
BARKER J
DATE OF ORDER:
6 DECEMBER 2018
THE COURT ORDERS THAT:
1.The matter be referred to a Registrar for further case management.
2.The date for compliance with the order made 4 May 2016 concerning production of connection material to the first respondent be extended to 29 March 2019.
3.The matter be listed before a judge for a further case management hearing on 28 March 2019 at 10.00 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
On 5 December 2018, this matter was called on for judicial case management.
The proceeding, which is a claimant application under the Native Title Act 1993 (Cth), has been in the Court for at least twenty years.
The applicant, on behalf of the claim group, is in default of an order originally made 4 May 2016 to provide connection material to the State of Western Australia by 4 April 2018, but extended by a later order to 31 August 2018 and then suspended until the further case management hearing that occurred yesterday, 5 December 2018, with a view to facilitating a possible consent determination of native title.
However, due to differences, it would appear, within the claim group itself, progress of the matter has been difficult, if not impossible.
The question before the Court on 5 December 2018, in terms of case management, was whether, as proposed by counsel on behalf of the applicant, the Court should further adjourn the matter, notwithstanding the continuing inability of the applicant to provide the connection material to the State, to enable further possible meetings of the claim group in February and subsequently in 2019 that might lead to a resolution of the differences within the claim group.
The State and respondents who appeared at the case management hearing indicated they had no submissions to make in respect of the proposed adjournment of the proceeding to enable such meetings to occur.
At that point a member of the public, who as it transpires was a member of the claim group, Ms Jocelyn Mongoo, sought to make a statement from the well of the Court. In order to enable her properly to be identified for the record, and to ascertain exactly what it was she wanted to do or say, I invited her to approach the bar table. After she indicated that she wanted to make a statement and confirmed who she was and that she was a member of the claim group, I ruled that it was not appropriate for her to make the statement. I indicated that as a member of the claim group she was not a party and not authorised to speak on behalf of the applicant. The applicant comprises persons other than Ms Mongoo and is represented by lawyers and counsel. I indicated that there were mechanisms available under the Native Title Act to replace an applicant or alter a claim group and that the occasion of this case management hearing was not the occasion for such matters to be considered. I indicated that I was also concerned that, should any statement be made by her, it could be prejudicial either to the interests of the claim group or the applicant.
While Ms Mongoo was insistent that she would make the statement, I indicated that she would not be permitted to do so. When she maintained an insistence of her intention to read the statement, supported by some voices in the well of the Court, I considered it appropriate to adjourn the case management hearing, initially for a short while.
In light of an apparent tumult that occurred following the adjournment, I ultimately caused the parties represented at the bar table to be advised that the case management hearing was adjourned and that I would issue orders from chambers on the application of the applicant for the matter to be adjourned to enable the possible meetings referred to.
Following consideration of the submissions earlier made, I have come to the view that the matter should be referred to the Registrar for further case management in order to allow the meetings foreshadowed by counsel for the applicant to occur.
I would further extend the time for compliance with the current connection material order to 29 March 2019.
I will order that a further case management hearing be listed before a judge of the Court on 28 March 2019, or such other date as the judge then case managing the matter may nominate.
My present view is that, should the issues involving the applicant and members of the claim group remain intractable, as they now appear to be, there may be no alternative but for the Court to program connection issues to an early hearing in 2019.
ORDER:
(1)The matter be referred to a Registrar for further case management.
(2)The date for compliance with the order made 4 May 2016 concerning production of connection material to the first respondent be extended to 29 March 2019.
(3)The matter be listed before a judge for a further case management hearing on 28 March 2019 at 10.00 am.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 6 December 2018
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