The Nyamal Palyku Proceeding (No 5)

[2022] FCA 478

FEDERAL COURT OF AUSTRALIA

The Nyamal Palyku Proceeding (No 5) [2022] FCA 478

File numbers:	WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 483 of 2018
Judgment of:	COLVIN J
Date of judgment:	29 April 2022
Cases cited:	The Nyamal Palyku Proceeding (No 4) [2022] FCA 284
Division:	General Division
Registry:	Western Australia
National Practice Area:	Native Title
Number of paragraphs:	9
Date of hearing:	Determined on the papers
Solicitor for the Nyamal Applicant:	Mr T Keely SC with Mr J Edwards of Arma Legal
Solicitor for the Palyku Applicants:	Mr V Hughston SC with Ms T Jowett of Cross Country Native Title Services
Solicitor for the Respondent:	Mr G Ranson of the State Solicitor's Office

ORDERS

WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 483 of 2018

BETWEEN:

KEVIN CHARLES ALLEN AND OTHERS

Nyamal #1 Applicant

TAMMY O'CONNOR AND OTHERS

Palyku Applicant

KEVIN STREAM AND OTHERS

Palyku #2 Applicant

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS

Respondents

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	29 APRIL 2022

THE COURT DIRECTS THAT:

1.The parties update the schedule of objections to the evidence to include notations to reflect these reasons.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. In reasons delivered in these proceedings on 25 March 2022, I described in general terms the nature of these proceedings, recorded the position in relation to objections to witness statements and dealt with outstanding objections:  The Nyamal Palyku Proceeding (No 4) [2022] FCA 284. Since then, in accordance with directions given, some limited further evidence has been notified and objections have been taken to certain parts of a responsive witness statement of Mr Fred Stream.

2. These are my reasons concerning those objections.

3. As to the objection to part of paragraph 7, the objection is not upheld.  In the form in which the evidence is given, the objection does not arise.  The evidence is only evidence of the journey of the mail truck when it was used by Mr Stream and will be received on that basis.

4. As to the objection to part of paragraph 8, the objection is not upheld.  In the form in which the evidence is given, the objection does not arise.  The evidence is only evidence of what was said to Mr Stream by other persons who are identified.

5. As to the objection to part of paragraph 9, the objection is upheld.  The evidence is speculation as to what was done by other people when Mr Stream was not present.

6. As to the objection to part of paragraph 12, the objection is upheld.  Mr Stock has given preservation evidence.  The matters the subject of the objection were not put to Mr Stock.  It would be unfairly prejudicial to allow the evidence to be given in those circumstances especially as they concern alleged reasons why the account given by Mr Stock may be impugned.

7. As to the objection to part of paragraph 14, the objection is upheld.  The evidence is speculation as to a mater that may be addressed by way of submission.

8. As to the objection to part of paragraph 15(c), the objection is not upheld as to the second and third sentences.  In the form in which the evidence is given, the objection does not arise.  The evidence is only evidence of what was not said by the persons identified in the presence of Mr Stream.  The objection is upheld as to the last sentence.  The evidence is given in a form which is conclusory.  The basis for the evidence is not given.

9. The parties are requested to update the schedule of objections to the evidence to include notations that reflect these reasons.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:       29 April 2022