Malone on behalf of the Western Kangoulu People v State of Queensland

The applicants, Malone on behalf of the Western Kangoulu People, sought leave to appeal against an interlocutory judgment that rejected their application to strike out the State of Queensland's Response to the Statement of Facts and Matters which the applicants sought to have admitted. The applicants argued that the State had effectively admitted the facts in its Statement of Facts and Matters by filing an expert report with the Federal Court, and therefore, those facts should be admitted without the need for further evidence. The State argued that the expert report did not constitute an admission of the facts by the State.

The legal issues before the court were whether the judgment was attended by sufficient doubt to warrant the attention of the Full Court and whether, assuming the judgment to be wrong, the applicants would suffer substantial injustice by a refusal of leave. The court found that the judgment was not attended by sufficient doubt to warrant the attention of the Full Court. The court held that an expert retained by a party in a proceeding is not the agent of the party, with the consequence that statements made by the expert in his or her report, even when filed and served by that party, do not constitute a formal admission by the party in the proceeding. The court also held that the joint expert reports provide evidence which may be probative of facts in issue in the underlying proceedings but they are not determinative of those issues. The court found that the applicants did not establish that they would suffer any substantial injustice if the primary judgment stands.

The application for leave to appeal was dismissed by the majority of the Full Court. A minority of the Full Court would have granted leave to appeal but dismissed the appeal. The court held that the primary judgment was not attended by sufficient doubt to warrant the attention of the Full Court and that the applicants did not establish that they would suffer any substantial injustice if the primary judgment stands. The application for leave to appeal was refused.