TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3)

Case [2015] FCA 1359

FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3)

[2015] FCA 1359

Citation: TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3) [2015] FCA 1359
Parties: TJ (ON BEHALF OF THE YINDJIBARNDI PEOPLE) AND OTHERS (AS PER SCHEDULE) v STATE OF WESTERN AUSTRALIA AND OTHERS (AS PER SCHEDULE)
File number: WAD 6005 of 2003
Judge: RARES J
Date of judgment: 23 October 2015
Legislation: Evidence Act 1995 (Cth)
Native Title Act 1993 (Cth)
Cases cited: Bodney v Bennell (2008) 167 FCR 84
Daniel v Western Australia (2000) 178 ALR 542
Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548
Date of hearing: 23 October 2015
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 14
Counsel for the Applicant: Ms T Jowett
Solicitor for the Applicant: Yindjibarndi Aboriginal Corporation
Counsel for the First Respondent: Mr M Pudovskis
Solicitor for the First Respondent: State Solicitor’s Office
Counsel for the Second Respondents: Mr S Glacken QC
Solicitor for the Second Respondents: Green Legal
Counsel for the Fourth Respondents: Mr S Wright
Solicitor for the Fourth Respondents: Integra Legal

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

WAD 6005 of 2003
BETWEEN:

TJ (ON BEHALF OF THE YINDJIBARNDI PEOPLE) AND OTHERS (AS PER SCHEDULE)
Applicant
AND:

STATE OF WESTERN AUSTRALIA AND OTHERS (AS PER SCHEDULE)
Respondent

JUDGE:

RARES J

DATE:

23 OCTOBER 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

  1. The Fortescue parties have objected to a number of passages in Dr Kingsley Palmer’s expert anthropologist report of September 2014.  The nature of the objections that are currently contentious concern, first, sections of Dr Palmer’s report in which he makes references to an earlier anthropological report by Messrs Robinson and Chambers (the report evidence) that was prepared for the purposes of satisfying the State, among others, about the applicant’s assertions as to connection to the land and waters the subject of the current proceedings.  The second species of evidence objected to concerns Dr Palmer’s recitation of statements made by members of the claim group (the claim group member evidence), some of whom have not been called to give evidence and others of whom gave oral evidence on country in September 2015, but did not necessarily traverse the (or a) precise subject area that Dr Palmer recited.

    The statutory context

  2. The issue as to whether this evidence is admissible falls to be considered in light of s 82(1) of the Native Title Act 1993 (Cth) and s 60 of the Evidence Act 1995 (Cth). The first section provides:

    82       Federal Court’s way of operating

    Rules of evidence

    (1)The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

  3. The Fortescue parties accepted that the question is whether both the report evidence and the claim group member evidence will be admissible under s 60(2) of…

Continue reading TJ (on behalf of the Yindjibarndi People) v State of Western...

Sign in free to access the full text

Details
AGLC
TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3) [2015] FCA 1359
Case
[2015] FCA 1359
Decision Date

CaseChat Overview and Summary

In the case of TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3), the parties involved were the Yindjibarndi People, represented by TJ, and the State of Western Australia. The central dispute revolved around the admissibility of evidence under section 60(2) of the Evidence Act, specifically regarding whether the report evidence and the claim group member evidence would be admissible for purposes other than proving the facts asserted. The matter was heard by the Federal Court of Australia.

The key legal issue the court needed to resolve was whether the evidence in question, which was objected to by the Fortescue parties, should be admitted under section 60(2) of the Evidence Act. The Fortescue parties argued that the evidence should be subject to a limitation on its use under section 136 of the Evidence Act, due to potential prejudice and confusion. They cited precedents such as Daniel v Western Australia to support their argument.

The court, after considering the arguments and relevant authorities, concluded that the objected evidence was admissible under section 60(2) of the Evidence Act without the need for a limitation under section 136. The reasoning was based on established principles that experts are permitted to rely on reputable sources and material from their field of expertise. The court relied on cases such as Bodney v Bennell and Borowski v Quayle to affirm that experts can base their opinions on hearsay information and that the weight of such evidence is a matter for the court. The court found no prejudice or confusion arising from the admission of the evidence and determined that the evaluation of its weight would be addressed at the end of the trial.

Ultimately, the court admitted the evidence objected to in Dr Palmer’s report without limitation, but with an emphasis on evaluating it carefully in light of all the evidence presented during the trial. This decision ensures that the expert evidence, including that based on report evidence and claim group member evidence, is considered appropriately by the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Fortescue parties accepted that the question is whether both the report evidence and the claim group member evidence will be admissible under s 60(2) of the Evidence Act. Relevantly, s 60 provides that:60 Exception: evidence relevant for a non-hearsay purpose(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.(2)This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).Note:Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594. The Fortescue parties contended that if either category of the evidence be admitted, it should be subject to a limitation on its use pursuant to s 136 of the Evidence Act of the kind contemplated by Nicholson J in Daniel v Western Australia (2000) 178 ALR 542 at 550-551 [30], particularly at subpars (7)–(9). The Fortescue parties argued that the evidence objected to has the capacity to cause prejudice and a tendency to confuse if it were to be admitted or admitted without such a limitation.Consideration In my opinion, each category of the evidence objected to is admissible without any need to make such a limitation under s 136 of the Evidence Act. In Bodney v Bennell (2008) 167 FCR 84 at 108 [92]–[94], Finn, Sundberg and Mansfield JJ discussed the relevant principles. In particular, their Honours said there:92Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, “would be to ignore the accepted methods of professional work and to insist on finical and impossible standards”. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].93 There is nothing in the Evidence Act that displaces this body of law. …94It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski [1966] VR at 385‑386. (emphasis added)

Decision

Reasons for decision

The Fortescue parties made a generalised submission about “prejudice” that they might suffer from the admission of Dr Palmer’s accounts of the claim group member evidence. But the Fortescue parties did not identify any instance of how they might suffer any such prejudice from admission of any evidence in this category. I am not satisfied that there could be any prejudice or any confusion or misleading from admitting this class of evidence. What weight the evidence is given, having regard to the evidence viva voce of witnesses before me, will be a matter I can deal with in evaluating all of the evidence at the end of the trial and after hearing the parties’ submissions.Conclusion For these reasons, I am of opinion that I should admit the evidence that the Fortescue parties objected to in Dr Palmer’s report without limitation but, will evaluate it carefully and with the benefit of detailed argument at the end of the hearing in light of all of the evidence in the proceedings.

Ratio Decidendi

Legal Principle Established

The Fortescue parties contended that if either category of the evidence be admitted, it should be subject to a limitation on its use pursuant to s 136 of the Evidence Act of the kind contemplated by Nicholson J in Daniel v Western Australia (2000) 178 ALR 542 at 550-551 [30], particularly at subpars (7)–(9). The Fortescue parties argued that the evidence objected to has the capacity to cause prejudice and a tendency to confuse if it were to be admitted or admitted without such a limitation.Consideration In my opinion, each category of the evidence objected to is admissible without any need to make such a limitation under s 136 of the Evidence Act. In Bodney v Bennell (2008) 167 FCR 84 at 108 [92]–[94], Finn, Sundberg and Mansfield JJ discussed the relevant principles. In particular, their Honours said there:92Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence (3rd ed) Vol 2, pp 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, “would be to ignore the accepted methods of professional work and to insist on finical and impossible standards”. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court: see generally Borowski [1966] VR at 385-387; PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35; H v Schering Chemicals Ltd [1983] 1 WLR 143 at 148-149; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) 214 ALR 608 at [8].93 There is nothing in the Evidence Act that displaces this body of law. …94It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski [1966] VR at 385‑386. (emphasis added) The report evidence on which Dr Palmer relied, based on what Messrs Robinson and Chambers reported, fell within the first class of admissible evidence on which their Honours said an expert may base his or her opinion, namely material produced by others in the area in which both those experts and Dr Palmer had expertise (167 FCR at 108 [92]). The claim group members’ evidence fell within the second class discussed by Finn, Sundberg and Mansfield JJ (167 FCR at 108 [94]), namely it is direct evidence of the anthropologist’s observations. Such evidence, ordinarily, will be or consist of a statement of what the anthropologist’s field work yielded, as a basis on which he or she can express opinions in relation to what he or she observed as to the connection and other attributes of the societal organisation and behaviours, customs and application of relevant laws and customs by the members of the claim group, whom the anthropologist had both interviewed and observed in the course of research for the report or publication.