The Wik Peoples v The State of Queensland

No judgment structure available for this case.

8 4 6 , 93-

JUDGMENT NO. .a . . .e . . .mo.-m*m.n.

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE, EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHAtF, AND ON BEHALF OF THE WIK PEOPLES
Applicants

AND : THE STATE OF OUEENSLAND
First Respondent

AND: COMMONWEALTH OF AUSTRALIA
Second Respondent

AND : ABORIGINAL AND ISLANDER AFFAIRS
CORPORATION
Third Respondent

AND: COMALCO ALUMINIUM LIMITED
Fourth Respondent

AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD.
Fifth Respondent

AND : COUNCIL OF THE SHIRE OF AURUKUN
Sixth Respondent

AND : NAPRANUM ABORIGINAL COUNCIL

CORRIGENDUM
Seventh Respondent

AND : PORMPURAAW ABORIGINAL COUNCIL
Eighth Respondent

AND : EDDIE HOLROYD
Ninth Respondent

Amendment to the Ex Tempore Reasons for Judgment of

Drummond J delivered 12 November, 1993:
Page 13, paragraph 3, line 4, insert "not" after "that are" and before "in its possession"
Page 16, paragraph 1, line 2, replace "17/4/1848" with
"17/4/1849".

Associate to Justice Drummond
24 May, 1994

JUDGMENT NO. .lllllll,lll,llll. .lllllllll~. 8Ltb 193

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE. EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES
Applicants

AND : THE STATE OF OUEENSLAND
First Respondent

AND : COMMONWEALTH OF AUSTRALIA
Second Respondent

AND : ABORIGINAL AND ISLANDER AFFAIRS
CORPORATION
Third Respondent

AND: COMALCO ALUMINIUM LIMITED
Fourth Respondent

AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD.
Fifth Respondent

AND : COUNCIL OF THE SHIRE OF AURUKUN
Sixth Respondent

AND : NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

AND : PORMPURlLAW ABORIGINAL COUNCIL
Eighth Respondent

AND : EDDIE HOLROYD
Ninth Respondent

CORRIGENDA

Amendment to the Ex Tempore Reasons for Judgment of

Drummond J delivered 12 November, 1993:
Page 2, paragraph 2, line 10, replace "12" with "23"
Page 12, paragraph 3, line 1, replace "law" with "laws"
Page 14, paragraph 1, line 5, delete "legislative".
Associate to Mr. Justice Drummond
6 December, 1993

S 9 6 1 %

JUDGMENT NO. ....,.,...,m.... 11111a11111.

1n THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993 . ..

QUEENSLAND DISTRICT REGISTRY 1
GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE SCHEDULE, EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES
Applicants

AND : THE STATE OF QUEENSLAND
First Respondent

AND : COMMONWEALTH OF AUSTRALIA
Second Respondent

AND : ABORIGINAL AND ISLANDER AFFAIRS
CORPORATION
Third Respondent

AND : COMALCO ALUMINIUM LIMITED
Fourth Respondent

AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD.
Fifth Respondent

AND : COUNCIL OF THE SHIRE OF AURUKUN

-4 Sixth Respondent

AND : NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

1Q AND : PORMPURAAW ABORIGINAL COUNCIL
Eighth Respondent

AND : EDDIE HOLROYD
Ninth Respondent

!

RECEIVED

2 4 NOV 1993 MINUTES OF ORDERS
FEDERAL COURT OF
AUSTRALIA

!	PRINCIPAL REGISTRY

JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 12 November, 1993
WHERE MADE: Brisbane
the undertakings of the first, second, third and fourth respondents by their counsel:

(a) to provide a copy of this order to each consultant to whom they are at liberty hereunder to provide, and do provide, a copy of the book entitled "Aak Aboriginal Estates and Clans Between the Embley and Edward Rivers Cape York Peninsula, South Australia Museum 1990" (hereinafter referred to as "the Green Book"); and
(b) to advise Mr. Duffy of Messrs. Lyons, solicitors for the applicants, of the name of each such consultant forthwith upon delivery to that person of a copy of the Green Book.

AND UPON the undertaking of Mr. Duffy to keep confidential to himself the name of any such consultant unless and until released from such undertaking by order of the court
THE COURT ORDERS THAT:
1. The applicants' solicitors deliver one copy of the Green Book to each of the solicitors for the first, second, third and fourth respondents by Friday, 26 November, 1993.

2. Each of the respondents pay the reasonable costs of the applicants' solicitors of providing it with a copy of the Green Book.
3. Save insofar as the applicants and the first and third respondents may by their solicitors otherwise agree in writing, the solicitors for each of the first and third respondents shall be at liberty to make a maximum of seven further copies of the Green Book and to deliver one copy to each of the Solicitor-General and the senior and junior counsel briefed by those respondents, and one copy to any of the following consultants retained by those respondents, namely one anthropologist, one linguist, one genealogist and one historian, such copies to be used by counsel and each consultant solely for the purpose of assisting in the
the documents listed in paragraph 268A of the
amended statement of claim.
There be liberty to apply to all parties to this application.

m: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTWIA ) No. QG 104 of 1993

QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION 1
BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE
SCHEDULE, EACH OF WHOM BRINGS THIS PROCEEDING ON THEIR OWN BEHALF, AND ON BEHALF OF THE WIK PEOPLES
Applicants

AND : THE STATE OF OUEENSLAND
First Respondent

AND : GOMMONWEALTH OF AUSTRALIA
Second Respondent

AND : ABORIGINAL AND ISLANDER AFFAIRS
CORPORATION
Third Respondent

AND : COMALCO ALUMINIUM LIMITED
Fourth Respondent

AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD.
Fifth Respondent

AND : COUNCIL OF THE SHIRE OF AURUKUN
Sixth Respondent

AND : NAPRANUM ABORIGINAL COUNCIL

Seventh Respondent

AND : PORMF'URAAW ABORIGINAL COUNCIL
Eighth Respondent

AND : EDDIE HOLROYD
Ninth Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER: Drummond J
DATE OF ORDER: 12 November, 1993
WHERE MADE: Brisbane
In relation to the application concerning the documents referred to in paragraph 268a of the amended statement of claim THE COURT ORDERS THAT:
1. By 12 December, 1993, the applicants file and serve on the solicitors for each of the first, third and fourth respondents a copy of the following documents referred to in paragraph 268A of the amended statement of claim:

(a)

CO memorandum by Earl Grey, Secretary of State at co201/382;

(b)

Order in Council 18 July, 1849 as signed by Queen Victoria;
(C) Order in Council as published Sydney
Gazette 29 April, 1850 pages 685-686;

(d)

Report of Select: Committee enclosed in Fitzroy to Newcastle 17/11/1853 co201/401;

(e)

each instrument referred to in the last sentence of that paragraph of the pleading.

By 12 December, 1993, the applicants file and serve an affidavit verifying the copy sworn by a person

who has examined the original document and the copy.
If the original document is not available to be

examined, the affidavit verifying must state to the best of the knowledge and belief of the deponent where the original document can be located, why it has not been examined by the deponents, and why the copy from which the delivered copy is taken is a true copy of the original document.

THE COURT DIRECTS THAT:
1. By 12 December, 1993, the applicants respond in writing to each query raised by the solicitors for the first respondent in their letter of 10 November 1993 to the applicants' sdicitors with respect to
preparation of those respondents' defence to the
applicants' claims herein.
Inspection of the Green Book on behalf of the first and third respondents to be limited to those persons referred to in paragraph 3 hereof, the solicitors in the Crown Solicitor's Office engaged in the preparation of the first and third respondents' defence to the applicants' claims, and a representative of the first and third respondents to be notified to the applicants' solicitors.
Save insofar as the applicants and the second respondent may by their solicitors in writing otherwise agree, the solicitors for the second respondent shall be at liberty to make a maximum of seven further copies of the Green Book and to deliver one copy to each of the senior and junior counsel briefed by it, and one copy to any of the following consultants retained by the second respondent, namely one anthropologist, one linguist, one genealogist, one historian and one representative of the second respondent to be notified to the applicants' solicitors, such copies to be used by counsel and each consultant and the representative solely for the purpose of assisting in the preparation of the second respondent's defence to the applicants' claims herein.
Inspection of the Green Book on behalf of the second respondent to be limited to those persons referred to in paragraph 5 hereof and the lawyers in the Commonwealth Attorney-General's Department engaged in the preparation of the second respondent's defence to the applicants' claims.
Save insofar as the applicants and the fourth respondent may by their solicitors in writing otherwise agree, the solicitors for the fourth

respondent shall be at liberty to make a maximum of seven further copies of the Green Book and to

deliver one copy of it to each of the senior and junior counsel briefed by it, one copy to any of the following consultants retained by the fourth respondent, namely one anthropologist, one linguist, one genealogist, one historian, and one copy to the fourth respondent's manager (whose name is to be notified by the fourth respondent to Mr. Duffy of Lyons Solicitors) appointed to address technical aspects of the applicants' claim against it, such copies to be used by counsel and each other such person solely for the purpose of assisting in the preparation of the fourth respondent's defence to the applicants' claims herein.

8. Inspection of the Green Book on behalf of the fourth I .
respondent to be limited to those persons referred
to in paragraph 7 hereof, the solicitors engaged in

i , .
the preparation of the fourth respondent's defence
to the applicants' claims, the fourth respondent's
managing director (whose name is to be notified by .:

the fourth respondent to W. Duffy of Lyons Solicitors) and its internal general counsel (whose name is to be notified by the fourth respondent to Mr. Duffy of Lyons Solicitors).
'.

9.

No copies of the Green Book shall be made by any of the first, second, third or fourth respondents save for those expressly permitted to be made by the orders herein, and no person authorised by these orders to inspect a copy of the Green Book shall disclose its contents to any person who is not so authorised.
10. Liberty to all parties to apply.
NOTE :
- Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
!
-

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 104 of 1993

QUEENSLAND DISTRICT REGISTRY )
GENERAL DIVISION 1

BETWEEN: THE WIK PEOPLES
WHO INCLUDE THE PERSONS MENTIONED IN THE
SCHEDULE, EACH OF WHOM BRINGS THIS
PROCEEDING ON THEIR OWN BEHALF. AND ON
BEHALF OF THE WIK PEOPLES
Applicants

AND : THE STATE OF OUEENSLAND
First Respondent

AND : COMMONWEALTH OF AUSTRALIA
Second Respondent

AND : ABORIGINAL AND ISLANDER AFFAIRS
CORPORATION
Third Respondent

AND : COMALCO ALUMINIUM LIMITED
Fourth Respondent

AND : ALUMINIUM PECHINEY HOLDINGS PTY. LTD.
Fifth Respondent

AND : COUNCIL OF THE SHIRE OF AURUKUN
Sixth Respondent

AND : NAPRANUM ABORIGINALt COUNCIL

Seventh Respondent

AND : PORMPURAAW ABORIGINAL COUNCIL
Eighth Respondent

AND : EDDIE HOLROYD
Ninth Respondent

m: Drummond J

1 -

Date:

12 November, 1993

Place: Brisbane

I

EX TEWPORE REASONS FOR JUDGMENT

I have applications by the first, second, third, and fourth respondents for an order under 0. 15, r. 15 the Federal Court Rules that the applicants produce a particular document that is in their possession to those respondents. I also have an application by the first, third, and fourth respondents for an order under 0. 15, r. ll(l)(e) that the applicants file and serve verified copies of certain documents referred to in their amended statement of claim.
As to the first application, the document in question is referred to in the letter of 4 November, 1993 from Mr. Duffy, the applicants' solicitor, to Mr. Smith, of the Queensland Crown Law Division, and in the letter of 10 November, 1993 from the solicitors for the fourth respondent to Mr. Duffy in reply to a letter similar to that sent to Mr. Smith which they received. The document in question is the green book that was in the possession of Mr. Castan Q.C. on

the bar table, and referred to by him, during the directions hearing on 12 August, 1993 and which is entitled "Aak,

Aboriginal estates and clans between the Embley and Edward Rivers Cape York Peninsula". I will refer to this document as "the Green Book".
Mention was first made of the Green Book by Mr.
Castan at the first directions hearing on 30 July, 1993 in the
course of successfully resisting a submission by counsel for

t he f i r s t and t h i r d respondents t h a t t he applicants should
then provide pa r t i cu la r s of t h e a l legat ions i n the statement of claim of the c r i t e r i a by reference t o which membership of t h e c lan o r group c a l l e d t h e Wik Peoples was t o be determined.

Hr. Castan then sa id , i n r e l a t i o n t o a query by m e as t o
whether he could provide such par t iculars :
"We could, your Honour, but it may be t h a t t he document t h a t we would produce o r t he response t h a t
w e would produce would be a subs tan t ia l body of
material from two most eminent anthropologists who spend a l a rge p a r t of t h e i r l i f e working on t h i s topic. They have produced a book which has been published o r a work which i s hundreds and hundreds of pages of d e t a i l a s t o t h e cons t i tu t ion of these

people and t h e i r re la t ionsh ip t o the land and why
they form a group c a l l e d The Wik Peoples."

M r . Castan had t h e Green Book on the bar t a b l e when

a t t he di rect ions hearing of 23 August, 1993 he again

successfully r e s i s t e d a renewal of t h i s request f o r

par t icu la rs . M r . Castan then said:

and we a r e going t o have t o provide and w i l l provide "Of course, t h i s case i s going t o have t o go ahead

a l l of t h e d e t a i l s about t he t o t a l i t y of our case.

But t he attempt t o requi re us t o go t o pa r t i cu la r s

of t h i s mat ter o r any o ther matter is , i n f a c t ,

imposing on us a t a s k of enormous magnitude. I t is an exercise i n using up a great amount of time and resources. It involves put t ing i n t o a manageable court form t h e contents of t h i s book which I referred t o last time, but which I have brought along t h i s time so t h a t your Honour could see the nature of t h e kind of work."

M r . Duffy, i n h i s letter of 4 November, 1993, might

be thought t o a sc r ibe t o the Green Book r a t h e r less

significance than did Mr. Castan on 23 August, 1993. Mr. i
I
I.
Duffy said, among other things: t ,
"The Aak book [i.e., the Green Book] does not contain an exposition of the applicants' system of laws and custom in relation to land for the purpose of these proceedings. It only hints at what such a system might be. It is dominated, not by systemic analysis, but by the presentation of minutiae. It largely consists of condensed records of the kinds of observations that underlay an understanding of how Wik land ownership, as a system works.
The Aak book does not focus on historical associations of the living applicants and their antecedents and the claim area.
While the applicants may rely on this volume to

establish a large measure of detail about how the !
Wik peoples relationships to their land have been manifested, site by site, it is not all that will be relied on and it is not the first port of call in coming to an understanding of the applicants' case."

However, 1 take the Green Book to contain a substantial and significant body of information upon which the

applicants are very likely to rely at the trial, at least in i , ,
showing the nature of the Wik Peoplesr association with the

lands, the subject of this action, and thus the content of the !
native title they claim.

While Mr. Duffy recorded his contentions that production of the Green Book now would be premature and while he asserted that there was a considerable element of confidentiality attaching to the Green Book, he made the following proposal:

L .
L
"Notwithstanding the concerns expressed above, the applicants, in the interests of the efficient utilisation of resources of saving costs, but without conceding any obligation to do so, propose to co-operate in making the Aak book available for inspection provided their concerns are acknowledged and provided certain terns and conditions in relation to the safeguarding of the material are agreed to.
To this end the applicants will give i6spection of the material on the terms set out in the attached Minutes of Proposed Order and upon the making of an Order in the terms of those Minutes."

The first, second, third, and fourth respondents opposed the imposition of any conditions on their being given access to the Green Book now, but that opposition by the first, third, and fourth respondents was really made to put on record their contention that there was an absence of any evidence that could legitimately justify the imposition of any restrictions. They did not press these objections but indicated, as the fourth respondent indeed did in its solicitors response to Mr. Duffy's letter of 4 November, 1993 to which I have already referred, that they would not argue against the imposition of restrictions on the extent to which

their trial preparation that would accommodate the applicants they could disseminate the Green Book to those assisting in
concerns, while giving those respondents reasonable

, ,

opportunity to make worthwhile use of the Green Book in their
pre-trial preparation.

From what counsel for the second respondent, the Commonwealth of Australia, said, it appears that the

, .
1
Commonwealth's preparations to conduct their defence to this

claim do not even now extend to having identified the principal experts upon whom the Commonwealth will rely. In response to ct query by me as to what use the Commonwealth would want to make of the Green Book, if it were to be given access to it now - that is, well in advance of the proper time for discovery - an exchange took place which ended with my asking counsel for the Commonwealth if he could give me some details about the range of people that the Commonwealth wanted to disseminate the document to. Counsel for the Commonwealth's response was this :

"Well, I will take some instructions but I do not think the Commonwealth is sufficiently far advanced in view of the very limited and unparticularised material we have received up till now. We are just not in a position to be in any sort of advanced state of preparation to the point where we have got particular people identified."

It is apparent that the first, third and fourth
respondents are rather more advanced in the way they have gone
about responding to the claim that the applicants have made

upon them.
Mr. Blowes, who appears today for the applicants adopted a different approach to Mr. Duffy to what should be done about the Green Book. His primary submission was that it was premature to order discovery of that document. He said that the Green Book should not be produced to any of the respondents until the issues were identified by an exchange of pleadings.

He referred me to the statement of general principle
in the work "Discovery and Interrogatories" by Simpson and
Others, which appears at p. 29:
!
"Although all jurisdictions expressly permit application to be made at any time, the general rule is that no order for discovery will be granted before joinder of issue."

. >

However, on the say so of senior counsel for the applicants, and of their solicitor, the Green Book, as I have said, relates to a limited number of core issues in the case that can be expected to be contested, namely, how the group

, ,
m ,
I
called the Wik Peoples is identified and what is the nature of !

their association with the land in question. W. Blowes conceded that the respondents would be entitled to access to the Green Book at some stage of the litigation and before trial. He could, however, offer no real explanation why the applicants should now resile from the position deliberately adopted by their solicitor on 4 November, 1993 and, instead of being prepared to give the respondents restricted access to
the Green Book now, deny them all access to it. That is he could not offer any such reason, other than in relation to the
second respondent. There is, I think, something in what he

said about whether any useful purpose will be served by giving that particular respondent the Green Book now, in view of the limited degree of preparation so far apparently undertaken by the second respondent.

Mr. Blowes also referred to the outline of proposed legislation on native title that accompanied the Prime

+
t
Minister's statement on Mabo legislation of 2 September, 1993. I
He said that the Court should not give any direction with I.

respect to production of the Green Book, because the court or .

tribunal that ultimately hears this action may operate under j . . .
procedural rules quite different from the Federal Court Rules,
..,
but the form the Commonwealth Mabo legislation will take is 8

still not settled. I do not think speculation as to whether I L .
the applicants might be able to obtain procedural advantages
under that scheme, when it is finalised, is any reason why the
applicants' action should not be progressed so far as that is
reasonably practicable now. Mr. Blowes, I should say, also
said that if contrary to his primary position I were to order
production now of the Green Book to the first, third and

fourth respondents, he would not oppose an order subject to !
restrictions of the kind discussed in argument. I.
Order 15, r. 15, provides:

I

"The court shall not make an order under this order S ,
for the filing or service of any list of documents >
or affidavit or other document or for the production , .
of any document unless satisfied that the order is :.
necessary at the time when the order is made."
!.

In Commonwealth v Northern Land Council (1991) 103 A.L.R. 267 at 291 the Full Court of this Court said of the group of rules of which r. 15 of 0. 15 forms part:
"As appears later in these reasons dealing with the leading English cases upon the inspection and production of documents for which public interest I .
immunity is claimed, the Federal Court Rules :

relevant to those topics are more liberal than the ! ,

equivalent provisions of the ~ules of the Supreme '

Court in England. The same criterion of 'necessity' \
governs orders for the filing or service of listed

documents as governs orders for their production. I
It is a reflection of the policy of judicial case j '
management that underlies the Federal Court Rules i

generally. It is a broad criterion which requires consideration of the interests of justice in the particular case as well as its economic and efficient disposition."

!
,
I think, in accordance with this statement of :

principle, it is proper to make the orders sought under the ;

rule in question for the following reasons: firstly, what

senior counsel for the applicants and the solicitor for the I I
applicants have said, and to which I have referred, shows that
the Green Book is directly relevant to at least one and
probably two of the core issues in the case which it can I-.
confidently be expected will be contested by the respondents.
Secondly, the case has become bogged down because it

, ,

is not yet known what form the proposed Commonwealth

legislation that will apply to claims in respect of native r
,
title will take. When I adjourned the matter for further

I /
directions on 23 August, 1993, I said: !
,
"Sufficient appears from the Prime Minister's
statement to make it clear that the proposed
legislation is likely to have a major impact on the

range of issues raised in the Wik Peoples statement I
of claim which will remain alive for determination I
by the Court after the legislation has been passed.
I therefore propose to adjourn the matter to late

1 i I
October for further directions."
t -

The position, when the matter came back before me on 26 October in this regard and now, remains the same as it was on 23 August. But I think that one area in which necessary preparation of the respondents1 case can be advanced is in relation to these core issues that I .have referred to and in respect of which the Green Book contains a good deal of the material that the applicants can be expected to rely on at the trial.
Thirdly, the importance of not allowing any litigation to languish when that can be productively avoided is plain, particularly for a court that operates a case management system. In a case like the present, in which issues of such importance to the parties and in which many other Australians also have a real interest, there is no justification, in my view, for not allowing the parties to take advantage of any opportunity reasonably available for productive work on the preparation of their respective cases.

I should say that, although Mr. Blowes did not oppose the sort of restricted access to the Green Book that was discussed in argument, Mr. Duffy refers to the confidential nature of the information in the Green Book in his letter of 4 November, 1993. However, he, in my view quite properly, recognised by the proposal he made that this aspect of the matter was not, even on his instructions, sufficient of itself to justify denial of restricted access to the Green Book to the respondents now. As I mentioned in argument, this Court has ample power to ensure that claims by litigants to the confidentiality of evidence on which they wish to rely can be recognised, where such claims are shown by appropriate evidence to be well founded. Mr. Duffy also gives in his letter further information in support of statements made from the bar table on 26 October last that the first, second and third respondents already have copies of the Green Book. However, on the evidence before me, including that relied on by those three respondents, I would not be prepared to find that any of those respondents now has or ever had possession of a copy of this document.
Notwithstanding the second respondent's position as revealed in argument, I propose to give it access to the Green Book on the same basis as the other three respondents before me today will have access to it, in the expectation that some productive use of the opportunity will be taken, given the interest of the other respondents to get on with the work of preparation.

As to the second application, this application reveals a disturbing situation. What the first, third and fourth respondents want are copies of documents listed in paragraph 268A of the applicants' amended statement of claim. I
These documents consist of despatches, reports hnd memoranda passing between colonial and imperial officials in the 19th century, and colonial and imperial Orders-in-Council made in that same period. It might be expected that in a pleading signed by the applicantst solicitors and noted as having been settled by the applicants' senior and junior counsel, the applicants would have no difficulty in supplying copies of these documents to the respondents on request. The expectation that these documents would be promptly made available by the applicants' legal representatives to the respondents on request is very much enhanced when it is seen that the applicants, in reliance on these critical documents, are making a claim which raises issues that cannot fail to be of the utmost concern to the State of Queensland, to those respondents including the fourth respondent whose titles are the subject of challenge in this action, and indeed to almost every person who holds a title granted on land anywhere in Queensland under laws passed by the Queensland Parliament since 1859.
In chapter 17 of their mended statement of claim, in reliance on the documents now in question, the applicants assert that:

"If any grants made pursuant to law passed by the

said parliament [i.e., the Queensland parliament] , .
have extinguished or impaired traditional Aboriginal
title or possessory title of the Wik peoples, and > a
their predecessors in title, then such purported
grants which so impair or extinguish the traditional
Aboriginal title or possessory title of the Wik
peoples, and their predecessors in title are beyond -
the power of the parliament of Queensland and are

invalid. "

For some reason that is not apparent from the
pleading, certain pastoral leases, the lessees of which have
not all been joined as parties in this action (a matter to
which I have referred on another occasion), are excluded from
this claim, but the seriousness of the issue raised by chapter
17 is obvious.
- I

The first respondent's notice under 0. 15, r. lO(1) that called on the applicants to produce these documents, which notice was given long ago, produced the notice from the applicants' solicitors in response dated 27 September, 1993 which says that these documents:
"are not in the Applicants' possession custody or power and that to the best of the applicants knowledge information and belief the documents, or copies of them, are in the possession custody or power of the National Library, Canberra, Australian Capital Territory."

The applicants contend that this is a sufficient compliance with 0. 15, r. lO(2). But even so, if a party (as here) chooses to make a claim that depends on key documents that are in its possession, the Court has power under r.

opponent those documents or true copies of them at any stage ll(l)(d) and (e) to order that party to produce to its
of the litigation. Cf. Rafidain Bank v AGOM Universal Suaar
Tradina Co. Ltd. [l9871 1 W.L.R. 1606.

It emerged in the course of submissions on 26 October but more clearly today that this particular claim was drafted and settled by counsel without them having looked at any of the documents on which it is founded and solely in reliance on the work of a reputable historian. The opinion of

an historian, no matter how eminent, cannot, in my view, be accepted as a proper basis for a litigant to think that directions contained in official documents operate in law to limit the legislative power of a colonial parliament to pass valid legislation. That question is very plainly one for a skilled lawyer to consider before it is raised in a claim in litigation.

~t is apparent that no lawyer on the applicants' side has even now checked all the documents relied on by the applicants here. The applicants ' solicitor, who has relatively recently produced copies of some of these documents to the respondents, still cannot produce four of those specified in the pleading or any of the instruments referred to in the last sentence of paragraph 268A of the pleading.
For counsel to advise lay clients to make a serious
claim that involves the proposition that all titles granted

extinguish native title are invalid, without personally and under Queensland law since 1859 that might otherwise

carefully checking the documents themselves on which that claim is based (or reliable copies in the case of old documents such as these), and without evaluating for themselves the legal significance of those documents is to inject into what is already an area of legal uncertainty of great concern to the litigants and the public generally an entirely unnecessary element of further uncertainty. The irresponsibility of counsel relying here on secondary

materials, including the opinion of a lay man on a technical and complex legal question, is emphasised by the fact that there is real doubt that the applicants have even now produced what they say are 10 of the 14 documents specified in paragraph 268A of the pleading: there is real doubt whether in each such case the document specified in the applicants' pleading is, in truth, that on which the applicants really wish to rely.

By way of example, I refer to the document described in that paragraph of the applicants pleading as:
"ReDOrt G.A. Robinson to Colonial Office 11847) co-
210/382. and annotations".

The document that has been produced as a copy of that particular document to the fourth respondent has evoked this comment from the solicitors for the first respondent:

"I have been provided with a Report from GA
Robinson. However, that report is not from Robinson

to the Colonial Office. Further, the report which
has been provided to me is dated 31 December 1846."
By way of further example, as to the document

described in the pleading:

"Minute, Gordon Gairdner to Earl Gray -

i I
I
!

16 i- i
i

and the respondents' solicitor correctly inserts a "sic" after i I
!.
the word Gray -
re draft Order in Council at memo on letter of

Colonial Land and Emigration Office, 17/4/1848, L

co201/422. "

The solicitor for the first respondent responded in this way after seeing what was provided to him as the copy of . ,
-
I
that document by the applicants' solicitors:
"The documents forwarded by you to my office which purport to be those documents referred to above do not indicate any Minute attributable to Gordon Gairdner or any Minute to Earl Grey. Could you please advise whether or not this is the case.
Further, there appears to be no memorandum on the letter of the Colonial Land and Emigration Office dated 17 April 1849."
Applicants' counsel accepts that a response must be

made to these queries.

The questions posed by the first respondent's

solicitor show how important it is for counsel who considers that a claim can properly be raised in a pleading for which he is responsible to check for himself that he in fact has the documentary material said to justify the claim (or a reliable copy of it) as well as to decide for himself that that material does support the suggested claim. T3ey raise doubts as to whether-there is any claim which the applicants can

legitimately make here. This is a case in which I think it is
essential that an order be made under 0. 15, r. ll(l)(e).
TO my mind there is a difference to be drawn between the proceedings today, insofar as they relate to the Green Book issue and insofar as they relate to the paragraph 268A issues. Notwithstanding the change in direction of the applicants in relation to the Green Book issue between Mr. Duffy's letter of 4 November and their counselsr submissions this morning, I think the chronology of things is such, and the general circmstances of the debate concerning that issue are such as to make the proper order, if all that had to be resolved was an order in relation to the costs of that issue, one which would make the costs of today costs in the proceedings.
So far as the paragraph 268A documents issue is concerned, in view of the opinions I have expressed in the judgment about the way this particular claim has been presented, and in view of the fact that it emerged as long ago

no explanation before me why the applicants are still not in a as three months, and in view of the further fact that there is

position to produce the specified documents that they rely on in support of that claim, I think the first, third, and fourth applicants are entitled to some recognition in respect of the costs of today so far as they are associated with the paragraph 268A documents.
L
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18

What I propose to do therefore is to order that one half of the costs of today, be costs in the proceedings, and to further order that the applicants pay to each of the first, third, and fourth respondents have one half of their costs of today to be taxed. I do not think, notwithstanding the matters I have referred to which to my mind justify that costs order, that it is appropriate to go beyond that and give leave to the fourth respondent who also seeks leave to tax the costs now.
I certify that this and the preceding
17 pages are a true copy of the
reasons for judgment herein of the
Honourable Mr. Justice Drummond.
Associate:

Date : 12 November, 1993

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Citations

The Wik Peoples v The State of Queensland [1993] FCA 846

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North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 104 of 1993
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 104 of 1993
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	12 November, 1993
WHERE MADE:	Brisbane

(a)	to provide a copy of this order to each consultant to whom they are at liberty hereunder to provide, and do provide, a copy of the book entitled "Aak Aboriginal Estates and Clans Between the Embley and Edward Rivers Cape York Peninsula, South Australia Museum 1990" (hereinafter referred to as "the Green Book"); and
(b)	to advise Mr. Duffy of Messrs. Lyons, solicitors for the applicants, of the name of each such consultant forthwith upon delivery to that person of a copy of the Green Book.

IN THE FEDERAL COURT OF AUSTWIA )	No. QG 104 of 1993
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

the bar table, and referred to by him, during the directions	hearing on 12 August, 1993 and which is entitled "Aak,
Aboriginal estates and clans between the Embley and Edward Rivers Cape York Peninsula". I will refer to this document as "the Green Book".
Mention was first made of the Green Book by Mr. Castan at the first directions hearing on 30 July, 1993 in the course of successfully resisting a submission by counsel for

significance than did Mr. Castan on 23 August, 1993. Mr.	i
I
I.
Duffy said, among other things:	t ,

establish a large measure of detail about how the	!
Wik peoples relationships to their land have been manifested, site by site, it is not all that will be relied on and it is not the first port of call in coming to an understanding of the applicants' case."

applicants are very likely to rely at the trial, at least in	i	,	,
showing the nature of the Wik Peoplesr association with the

While Mr. Duffy recorded his contentions that production of the Green Book now would be premature and while he asserted that there was a considerable element of confidentiality attaching to the Green Book, he made the following proposal:	L .
L

their trial preparation that would accommodate the applicants	they could disseminate the Green Book to those assisting in
concerns, while giving those respondents reasonable

From what counsel for the second respondent, the Commonwealth of Australia, said, it appears that the	, .
1
Commonwealth's preparations to conduct their defence to this
claim do not even now extend to having identified the principal experts upon whom the Commonwealth will rely. In response to ct query by me as to what use the Commonwealth would want to make of the Green Book, if it were to be given access to it now - that is, well in advance of the proper time for discovery - an exchange took place which ended with my asking counsel for the Commonwealth if he could give me some details about the range of people that the Commonwealth wanted to disseminate the document to. Counsel for the Commonwealth's response was this :

However, on the say so of senior counsel for the applicants, and of their solicitor, the Green Book, as I have said, relates to a limited number of core issues in the case that can be expected to be contested, namely, how the group	, ,
m ,
I
called the Wik Peoples is identified and what is the nature of	!
their association with the land in question. W. Blowes conceded that the respondents would be entitled to access to the Green Book at some stage of the litigation and before trial. He could, however, offer no real explanation why the applicants should now resile from the position deliberately adopted by their solicitor on 4 November, 1993 and, instead of being prepared to give the respondents restricted access to
the Green Book now, deny them all access to it. That is he could not offer any such reason, other than in relation to the
second respondent. There is, I think, something in what he
said about whether any useful purpose will be served by giving that particular respondent the Green Book now, in view of the limited degree of preparation so far apparently undertaken by the second respondent.
Mr. Blowes also referred to the outline of proposed legislation on native title that accompanied the Prime	+
t
Minister's statement on Mabo legislation of 2 September, 1993.	I
He said that the Court should not give any direction with	I.
respect to production of the Green Book, because the court or	.

tribunal that ultimately hears this action may operate under	j .	. .
procedural rules quite different from the Federal Court Rules,
..,
but the form the Commonwealth Mabo legislation will take is	8
still not settled.	I do not think speculation as to whether	I L .

fourth respondents, he would not oppose an order subject to	!
restrictions of the kind discussed in argument.	I.

"The court shall not make an order under this order	S ,
for the filing or service of any list of documents	>
or affidavit or other document or for the production	, .
of any document unless satisfied that the order is	:.
necessary at the time when the order is made."
!.

equivalent provisions of the ~ules	of the Supreme	'
Court in England.	The same criterion of 'necessity'	\

documents as governs orders for their production.	I
It is a reflection of the policy of judicial case	j '
management that underlies the Federal Court Rules	i
generally. It is a broad criterion which requires consideration of the interests of justice in the particular case as well as its economic and efficient disposition."	!
,

principle, it is proper to make the orders sought under the	;
rule in question for the following reasons:	firstly, what
senior counsel for the applicants and the solicitor for the	I I
applicants have said, and to which I have referred, shows that
the Green Book is directly relevant to at least one and
probably two of the core issues in the case which it can	I-.
confidently be expected will be contested by the respondents.

"If any grants made pursuant to law passed by the
said parliament [i.e., the Queensland parliament]	, .
have extinguished or impaired traditional Aboriginal
title or possessory title of the Wik peoples, and	> a
their predecessors in title, then such purported
grants which so impair or extinguish the traditional
Aboriginal title or possessory title of the Wik
peoples, and their predecessors in title are beyond	-
the power of the parliament of Queensland and are
invalid.	"

[1993] FCA 846

12 Nov 1993

and the respondents' solicitor correctly inserts a "sic" after	i I
!.
the word Gray -

The solicitor for the first respondent responded in this way after seeing what was provided to him as the copy of	.	,
-
I
that document by the applicants' solicitors:

no explanation before me why the applicants are still not in a	as three months, and in view of the further fact that there is
position to produce the specified documents that they rely on in support of that claim, I think the first, third, and fourth applicants are entitled to some recognition in respect of the costs of today so far as they are associated with the paragraph 268A documents.