Members of the Yorta Yorta Aboriginal Community v The State of Victoria
[1996] FCA 759
•16 Apr 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 6001 of 1995
MEMBERS OF THE YORTA YORTA ABORIGINAL
COMMUNITY AND ORS
Applicants
THE STATE OF VICTORIA AND ORS
Respondents
Coram: Olney J
Place: Melbourne
Date: 16 April 1996
MINUTE OF ORDERS AND DIRECTIONS
THE COURT ORDERS AND DIRECTS THAT:
The following parties have leave to withdraw from the proceeding:
Denise Hall and Peter Hall
(Barmah Trail Rides)
Adrian N. Loughnan
Garry Loughnan
Adele Keenan
Judith Martin
James Loughnan
Bruce Lloyd
Valda Lorraine Tassicker
Joanne Griffin
Osprey Gold NL
The Shire of Indigo be added as a party in substitution for the United Shire of Beechworth, the Shire of Chiltern and the Shire of Rutherglen.
The following be joined as parties to the proceeding:
Arthur Roger Montrose and Annie Morrie Montrose.
Cohuna Clay Target Club Incorporated.
and be added to the list of parties appearing at item 12 in the list of parties annexed to the order made on 15 August 1995.
The application of Western Mining Corporation Limited to be joined as a party to the proceeding be adjourned for hearing on 3 May 1996 at 9.30am at Administrative Appeals Tribunal Court No 4, 14th Floor, HWT Tower, 40 City Road Southbank, Melbourne.
The application for a determination of native title lodged with the Court pursuant to s 74 of the Native Title Act 1993 on 23 May 1995 be heard and decided separately from and before the applicants' claim for a declaration of possessory title and any other question which the applicants seek to raise in the proceeding.
a) Pursuant to Order 10, rule 1(2)(i) of the Federal Court Rules the parties attend a case management conference with a Judge to consider the most economic and efficient means of bringing the proceeding to trial and of conducting the trial.
b)The case management conference be held at the Administrative Appeals Tribunal Conference Room, 15th Floor HWT Tower, 40 City Road Southbank Melbourne on Friday 3 May 1996 at 10.30am.
The following matters be referred for consideration at the case management conference:
The obligation of the applicants to file and serve documents referred to in the amended application;
The establishment of a timetable for the filing and serving of further statements in reply and/or amended statements in reply by the respondent parties;
Discovery of documents;
The representation of parties with a common interest by a single legal representative;
Fixing a date prior to the commencement of the hearing for the opening of the case;
The development of a protocol in relation to venues, site visits and other matters likely to involve sensitive cultural and customary concerns of the applicants;
The exchange of witness statements;
The question of whether any order relating to costs should be made pursuant to order 62A of the Federal Court Rules;
Other matters which a party wishes to be raised of which at least 7 days written notice is given to the Court and to the parties represented at the directions hearing held on 10 April 1996.
Subject to any further order or directions made or given at the case management conference, the trial of the application commence on 28 October 1996.
A further directions hearing be held on 7 June 1996 at 10.15 am.
10.Any further application by motion on notice be made returnable on 7 June 1996 at 10.15am.
11.Costs reserved.
NOTE: Settlement and entry of orders is dealt with in rule 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 6001 of 1995
MEMBERS OF THE YORTA YORTA ABORIGINAL
COMMUNITY AND ORS
Applicants
THE STATE OF VICTORIA AND ORS
Respondents
Coram: Olney J
Place: Melbourne
Date: 16 April 1996
REASONS FOR DECISION
These reasons should be read in conjunction with the minute of orders and directions published contemporaneously herewith.
TRIAL OF SEPARATE QUESTIONS
In my opinion there is merit in the argument advanced on behalf of the State of Victoria that the determination of native title and the claim for a declaration of possessory title should be tried separately. However, I am of the view that the native title issue should be heard and determined first.
Although I have some real doubt as to whether it is appropriate for the possessory title claim to be added to the application for a determination of native title there seems to be no practical advantage for that question to be tried in advance of the hearing of the native title application. Consistent with the Court's obligation under s 82(1) of the Native Title Act 1993 I have formed the view that any issues that arise concerning the legitimacy of the claim for possessory title ought not to be allowed to delay the expeditious and economic disposal of the claim for a determination of native title.
CONFIDENTIAL DOCUMENTS
Paragraph 1.2 of the orders made on 15 August 1995 required the applicants to file and serve a statement in summary form of the facts and contentions upon which they rely. This order has not been complied with insofar as certain schedules which form part of the applicants' statement have been withheld. To the extent that the applicants seek to maintain confidentiality in respect of the withheld information there would appear to be no reason why, consistent with previous directions concerning the giving of undertakings, why this information cannot now be filed and made available to those parties who have provided an appropriate undertaking. Comments made by counsel for the applicants at the directions hearing on 10 April 1996 suggest that some or all of the schedules are not yet in existence. If this is so then the prospect of the matter proceeding to trial as planned may be in doubt.
The respondents cannot be expected to provide a meaningful response to a statement of facts which is incomplete. Nor is it reasonable that the applicants should both dictate when the material in question will be made available and preserve the currently anticipated hearing dates. The Court does not regard as a satisfactory answer the applicants' assertion that the material will be available in good time.
I have decided to refrain at this stage from imposing a strict timeframe for the provision of the documents and information referred to in the applicants' statement which is yet to be supplied but unless some consensual resolution is achieved before or at the case management conference there would seem to be no alternative but to do so. In the present circumstances it is inappropriate to make orders as to the filing of amended replies by the parties who have already filed replies nor is it sensible to press other parties who wish to make a reply to the application to do so before the applicants' case is fully disclosed.
DISCOVERY OF DOCUMENTS
The question of discovery has been raised on previous occasions. The preferred course is that the parties should reach some mutually acceptable accommodation so as to minimise the undoubted burden that the obligation to give discovery imposes but also to ensure that relevant documents are disclosed in a timely manner.
The applicants have to some extent identified documents which they consider to be relevant. It is expected that at the case management conference the parties from whom discovery has been sought will be in a position to present proposals in relation to their compliance with the requests already made.
REPRESENTATION OF PARTIES WITH A COMMON INTEREST
It is not desirable for parties with the same interest to be represented by different solicitors and/or counsel. Whilst the Court cannot compel a party to engage a legal representation other than that of his or her own choice, it does have some scope in the exercise of its discretion in relation to costs to ensure that the conduct of any particular party in the course of the proceeding will be given appropriate consideration when the question of costs is ultimately considered.
Despite the numerous applications that have been made for orders under Order 62A of the Federal Court Rules limiting the liability for costs, I am of the view that until the manner of representation of parties in finally resolved it is inappropriate to consider that question any further.
I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 10 April 1996
Place: Melbourne
Orders made:16 April 1996
Appearances:
Mr B. Keon-Cohen with Mr R. Howie (instructed by Arnold Bloch Leibler) appeared for the applicants.
Ms M. Sloss with Mr S. McLeish (instructed by Victorian Government Solicitor) appeared for the State of Victoria and others.
Mr V.B. Hughston (instructed by the Crown Solicitor for New South Wales) appeared for the State of New South Wales.
Ms M. Warren (instructed by Blake Dawson Waldron) appeared for the Murray Darling Basin Commission.
Mr G. Hiley QC with Mr G.J. Moloney (instructed by Camerons Solicitors) appeared for the City of Greater Shepparton and others.
Mr M.A. Hird (instructed by Scott Thompson & Co) appeared for Emat Industries Pty Ltd and Mr G. Grima.
Mr D. Jackson (instructed by Corrs Chambers Westgarth) appeared for the Barmah Forest Cattlemens Association and others.
Mr J.C. Curtis-Smith (instructed by Hargreaves Solicitors) appeared for Berrigan Shire Council and others.
Mr. C.J. Edquist (instructed by Phillips Fox) appeared for Eddie Kneebone and others
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