FEDERAL COURT OF AUSTRALIA Wotjobaluk People v State of Victoria [1999] FCA 961 WOTJOBALUK PEOPLE & ORS v STATE OF VICTORIA & ORS VG 6002 OF 1998 NORTH J 30 JUNE 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 6002 OF 1998 BETWEEN: WOTJOBALUK PEOPLE & ORS Applicants AND: STATE OF VICTORIA & ORS Respondents JUDGE: NORTH J DATE OF ORDER: 30 JUNE 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application by the State of Victoria for orders that the applicants file and serve contentions of fact and law prior to the commencement of mediation is dismissed. 2. The application by the State of Victoria for access to the affidavit and other material referred to in Schedules F and M of the application is dismissed. 3. The applications for party status of TH Berkin, Robin Borrett, Brendan John Cranage, Ian GS Elder, Goldminco NL, Lisa and Robert Matthews, Mining Project Investors Pty Ltd, Dennis and Gerda Ross, and Eddie and Liz Saathoff are rejected. 4. The application by Graeme Arthur Ellen and Kay Dianne Ellen commenced by Notice of Motion filed on 28 June 1999 for leave to be joined as a party granted. 5. Liberty to the State of Victoria to file and serve written submissions concerning the grouping procedure for processing applications for party status by 14 July 1999, and liberty to other parties to supply written replies by 21 July 1999. 6. In relation to the Notice of Motion filed by the Ralston interest, filed on 28 June 1999 seeking party status: (a) the Ralston interest shall by 5 July 1999 file and serve facts and law and any other material that they will rely on; (b) other parties by 7 July 1999 file and serve any material in response; and (c) the hearing of the motion is fixed for 10.15 am on 9 July 1999. 7. This matter is adjourned until 2.15 pm on 6 October 1999. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 6002 OF 1998 BETWEEN: WOTJOBALUK PEOPLE Applicant AND: Respondent JUDGE: NORTH DATE: 30 JUNE 1999 PLACE: MELBOURNE EX TEMPORE REASONS FOR DECISION 1 The State of Victoria, the first respondent, has applied for an order that the applicants disclose and provide to it the affidavits and other material (the material) provided by them to the Registrar of the National Native Title Tribunal (the Tribunal) for the purposes of satisfaction of the registration test. The basis upon which Mr Paterson, who appeared as counsel for the State of Victoria, made this application was that the material was referred to in the applicant's application. He contended that as the application must be made available to the respondents, and was served upon the respondents, material that forms part of the application must be disclosed and provided to the State of Victoria in the same way as the application itself. 2 The way the material is referred to in the application is as follows. First, in Schedule F, which is headed "General Description of Native Title Rights and Interests Claim" there is a description of the rights and interests. After that description appear the words: "These assertions are supported by:" 3 and paragraph (c) states: "The affidavits and other material provided by the applicants to the Registrar of the National Native Title Tribunal." 4 Schedule F in that form was amended by paragraph 5 of an order made by me on 4 June 1999. The second reference to the material is in Schedule M, which is headed "Traditional Physical Connection". The reference to the material is in the following terms: "The attachments marked attachment M contains two affidavits. This is sensitive material that should not be on the public record. This attachment has been provided to the Registrar of the National Native Title Tribunal contemporaneously with the lodgment of this application." 5 What forms part of the application and what does not is a matter for the applicants. The applicants can determine to make reference to material or not. 6 Further, the applicants can determine to make reference to material in such a way that the reference either includes the material within the application or not. The narrow question for me today is whether the two references in the application amount to a reference by the applicants to the material in such a way as to make that material part of the application. A determination of this question says nothing about any right of the first respondent, the State of Victoria, to obtain access to the material at a later stage or on some basis other than the narrow basis presently put forward. 7 Mr Keon-Cohen QC, who appeared on behalf of the applicants, contended that the formulation of the application, and an understanding of the process of the Tribunal and the provisions of the Native Title Act 1993 (Cth) (the Act) in relation to the registration test, make it clear that the applicants intended, by the two formulations, to indicate that there was material, either in existence or which might come into existence, for the purpose of the registration test, which was or would be relied upon by them, if necessary, at a hearing of the application, but which did not, by the references made, become part of the application itself. 8 The formulation in Schedule F is not particularly clear, and it is to be hoped that it will not be used in future in that form. It does not specifically point to the sensitivity of the material, as does the formulation in Schedule M. Were the references cast in a form that specified that what was provided by the applicants to the Registrar of the Tribunal for the purpose of the registration test, may be relevant to the issues referred to in the Schedule, but its contents were not intended to form part of the application, the applicant's position would have been made clear. 9 However, in my view it is sufficiently clear that the applicants did not intend that the material itself form part of the application. The explicit reference in Schedule M to the sensitivity of the material and the fact that it should not be publicly available heralds their intention that it not form part of the application. I think a fair approach to the application as a whole is to read Schedule M as bearing some significance in relation to Schedule F, and to regard the reference in schedule F to have intended something similar. This conclusion is supported by reference to the processes set out in the Act in relation to the provision of material to be used by the Registrar for determining the registration test. The applicants are entitled to provide to the Registrar material in support of the registration application, which has not been filed with the Court, and which need not be provided to the respondents (Table A Part 4 section 11(8), section 190A(3) and section 66(2)). 10 With this background, a respondent reading the references in Schedules F and M would appreciate that the material referred to is material that would not, save with the express consent of the applicants, be provided to the respondents. 11 The applicants did not volunteer the material as part of the application. Thus, on the basis upon which the State of Victoria has made its present claim to the material, the claim must be refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 30 June 1999 Counsel for the Applicant: Mr B A Keon-Cohen QC Solicitor for the Applicant: Mirimbiak Nations Aboriginal Corporation Counsel for the State of Victoria: Mr J Paterson Solicitor for the State of Victoria: Victorian Government Solicitor Counsel for the Corrs Respondents: Mr M Sag Solicitor for the Corrs Respondents: Corrs Chambers Westgarth Counsel for Groups 5, 6, 12, 16 & 17: Mr M Strang Solicitor for Groups 5, 6, 12, 16 & 17: Power & Bennett Date of Hearing: 30 June 1999 Date of Judgment: 30 June 1999