State of Western Australia v Ward
[1999] FCA 774
•11 JUNE 1999
FEDERAL COURT OF AUSTRALIA
State of Western Australia v Ward [1999] FCA 774
PRACTICE & PROCEDURE – appeal – order of presentation of submissions.
THE STATE OF WESTERN AUSTRALIA & ORS v BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES, CECIL NINGARMARA & ORS AND DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGGARRA PEOPLES
NG WAG 6293 OF 1998
JUDGE: BEAUMONT J.
PLACE: SYDNEY (HEARD IN DARWIN)
DATE: 11 JUNE 1999
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6293 OF 1998
BETWEEN:
THE STATE OF WESTERN AUSTRALIA & ORS
AppellantsAND:
BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First RespondentsCECIL NINGARMARA & ORS
Second RespondentsDELORES CHEINMORA & ORS ON BEHALF OF THE BALANGGARRA PEOPLES
Third RespondentsJUDGE:
BEAUMONT J.
DATE OF ORDER:
11 JUNE 1999
WHERE MADE:
SYDNEY (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1.The undertakings by the State of Western Australia be noted.
2.Order 6 of the orders made by Nicholson J on 9 March 1999 be varied such that the State of Western Australia will present its oral submissions in respect of its appeal in advance of the submissions of the Northern Territory.
3.Costs of this application be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6293 OF 1998
BETWEEN:
THE STATE OF WESTERN AUSTRALIA & ORS
AppellantsAND:
BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First RespondentsCECIL NINGARMARA & ORS
Second RespondentsDELORES CHEINMORA & ORS ON BEHALF OF THE BALANGGARRA PEOPLES
Third Respondents
JUDGE:
BEAUMONT J.
DATE:
11 JUNE 1999
PLACE:
SYDNEY (HEARD IN DARWIN)
REASONS FOR RULING (ON ORDER OF ADDRESSES)
BEAUMONT J:
The hearing of this appeal, and of related appeals, is fixed to commence on 26 July 1999. By notice of motion dated 21 May 1999 (“the Motion”), the appellant, the State of Western Australia (“Western Australia”), seeks an order that –
“…[o]rder 6 of the orders of his Honour Justice Nicholson made 9 March 1999 be varied such that the State of Western Australia will present its oral submissions in respect of its appeal in advance of the submissions of the Northern Territory.”
The consent order made by Nicholson J on 9 March 1999 provides:
“6.At the hearing of the appeals the sequence of presentation of argument in the Full Court shall be as follows:
(a)Counsel for the Chief Minister of the Northern Territory;
(b)Counsel for the Conservation Land Corporation;
(c)Counsel for Cecil Ningamara & Ors (in support of their contentions and in response to the submissions of the Counsel for the Chief Minister of the Northern Territory);
(d)Counsel for the State of Western Australia;
(e)Counsel for [the] Crosswalk Pty Ltd & Anor;
(f)Counsel for Argyle Diamond Mine & Anor;
(g)Counsel for Alligator Airways & Ors;
(h)Counsel for the Commonwealth;
(i)Counsel for Ben Ward & Ors;
(j)Counsel for Delores Cheinomara & Ors and for the Cross Appellant;
(k)Counsel for Cecil Ningamara & Ors ([r]esponding if necessary, to the submissions of Appellants other than the Chief Minister for the Northern Territory);
(l)Replies by the Appellants; and
(m)Reply by the Cross Appellant.”
The Northern Territory consents to the variation sought. The second respondents oppose it, although they have no objection to this and the related appeals being heard at the same time.
In support of the motion, Senior Counsel for Western Australia relies on practical considerations said to be involved in the presentation of the arguments on the appeal. Western Australia says that its grounds of appeal cover a wider range than those of the Northern Territory. Senior Counsel for Western Australia points out that whilst both Western Australia and the Northern Territory were challenging the native title rights and interests of several estate groups, the Northern Territory would refer to three estate groups in the Territory only, whereas Western Australia intended to refer the Court to all of the evidence at first instance, including that of estate groups in the Territory, and extending to a substantial body of evidence given with respect to Western Australian estate groups.
In the course of argument, Senior Counsel for Western Australia offered two undertakings to the second respondents. First, an offer was made to provide the second respondents with a copy of transcript of the argument on the appeal gratis. Secondly, subject to the Court’s permission, an offer was made for an arrangement to be made so that Senior Counsel for the second respondents could appear and present argument on an agreed day and be interposed in the order of presentation of submissions, so as to minimise their costs.
In opposing the motion, Senior Counsel for the second respondents says that their case was to be presented in response to that of the Northern Territory case, so that there was no need for them to respond to Western Australia’s case, since the proceedings between the Territory and his clients are essentially discrete. The argument is that, if Western Australia were to go first, the Northern Territory, which would follow, would present its case by reference to Western Australia’s case. This would result, it is said, in Counsel for the second respondents having to fully understand Western Australia’s case, in order to meet the case put by the Northern Territory. Flowing from this, the argument runs, would be the added expense of attending the hearing that would result because the presentation of Western Australia’s case would take much of the time set aside for the appeal.
As to Western Australia’s offer to provide transcript, it is said by Senior Counsel for the second respondents that to attempt to follow proceedings from transcript is less satisfactory than following proceedings in Court.
I have come to the view that I should accede to the motion.
In my opinion, the guiding consideration is to determine how the presentation of the appeals would best accommodate the interests of justice, so that the Court would have the most sensible and intelligible presentation of the appeals as possible, consistent with fairness to each of the parties. The magnitude, the apparent complexity and the dimensions of these appeals are not in question. It seems to me, as a matter of logic and of common sense, that if Western Australia is to present the fullest and most complete case to any of the appeals, as it proposes, then it should be called upon first. It is true that the parties had previously agreed, as has been noted, upon an order of presentation. However, it now appears that this arrangement was made at an early stage of the appellate process, and that more informed consideration has now been given to the scope of the respective arguments to be presented at the hearing.
Moreover, in my view, Counsel for the second respondents should not be materially prejudiced once the offers to provide transcript and to allow the interposition of the presentation of their case, are taken into account, as I do.
Accordingly, I note the undertakings by Western Australia to provide transcript gratis and to agree that Counsel for the second respondents be interposed in the order of proceedings. I make the order as asked in par 2 of the notice of motion. I reserve the costs of this application.
I should add that I have consulted with the other Judges who will constitute the Full Court. They have authorised me to say they will agree with these orders.
ORDERS
1.I note the undertakings given by the State of Western Australia.
2.I make the order asked in par 2 of the notice of motion.
3.I reserve the costs of this application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Beaumont. Associate:
Dated: 11 June 1999
Counsel for the Appellants: C J L Pullin QC with K M Pettit Solicitor for the Appellants: Crown Solicitor for the State of Western Australia Counsel for the First Respondents: A M Sheehan Solicitor for the First Respondents: The Aboriginal Legal Service (WA) Inc. Counsel for the Second Respondents: J Basten QC Solicitor for the Second Respondents: Northern Land Council Counsel for the Third Respondents: G M McIntyre Solicitor for the Third Respondents: Kimberley Land Council Date of Hearing: 26 May 1999 Date of Judgment: 11 June 1999
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