Lake Torrens Overlap Proceedings (No 2)

The case of Lake Torrens Overlap Proceedings (No 2) involved the native title claims of the Kokatha Aboriginal people and other parties. The primary legal issue before the court was determining the appropriate restrictions on who could hear and view culturally restricted men's evidence provided by Dr Willis, an expert witness for the Kokatha claim group. The court was required to balance the cultural and customary concerns of the Aboriginal people against the rights of the parties to have their chosen counsel present during the evidence. This balance was necessary to ensure that justice was both done and seen to be done.

The court considered its powers under the Federal Court of Australia Act 1976 and the Native Title Act 1993 to order restricted access to evidence. It noted the precedent set in Western Australia v Ward, which held that the court could prevent a counsel from participating in a part of the hearing to protect cultural and customary concerns. The court accepted Dr Willis's affidavit, which expressed his genuine concerns about giving culturally restricted men's evidence in the presence of the senior counsel for the third applicant, due to potential breaches of Western Desert law. The court found that Dr Willis would not give the restricted evidence if the senior counsel was present, thereby impacting the proceedings.

The court ordered that Dr Willis would give his lay evidence separately from his expert evidence, with the restricted men's evidence being provided in accordance with prior orders. Additionally, if restricted men's evidence was necessary during the hearing, the court restricted the presence of the senior counsel for the third applicant to exclude him from that session. These orders aimed to respect Dr Willis's cultural concerns while ensuring the proceedings could continue effectively.