FEDERAL COURT OF AUSTRALIA Sampi v State of Western Australia [2000] FCA 1018 NATIVE TITLE – application to vacate hearing dates based on funding considerations – discretionary considerations Sebastian v W.A. (14 July 2000, Merkel J, unreported) - followed PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS NO WAG 49 OF 1998 JUDGE: BEAUMONT J DATE: 31 JULY 2000 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 49 OF 1998 BETWEEN: PAUL SAMPI AND JOE ROCK, FREDDIE BIN SALI, ROSIE BIN SALI, ELIZABETH PUERTOLLANO, MERCIA ANGUS, LENA STUMPAGEE, KHAKI STUMPAGEE, DENNIS DAVEY, PETER SIBOSADO AND JIMMY EJAI APPLICANTS AND: STATE OF WESTERN AUSTRALIA, THE PREMIER OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR EDUCATION, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR LANDS AND MINISTER FOR MINES AND ABORIGINAL LANDS TRUST FIRST RESPONDENTS THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT SHIRE OF BROOME THIRD RESPONDENT A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O'BYRNE, ELAINE O'BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD FOURTH RESPONDENTS DAWN BESSARAB, LEISK BESSARAB AND HELEN BESSARAB FIFTH RESPONDENTS STIRLING RESOURCES NL SIXTH RESPONDENT TELSTRA CORPORATION LTD SEVENTH RESPONDENT JUDGE: BEAUMONT J DATE OF ORDER: 31 JULY 2000 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Application to vacate final hearing dates refused. 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 49 OF 1998 BETWEEN: PAUL SAMPI AND JOE ROCK, FREDDIE BIN SALI, ROSIE BIN SALI, ELIZABETH PUERTOLLANO, MERCIA ANGUS, LENA STUMPAGEE, KHAKI STUMPAGEE, DENNIS DAVEY, PETER SIBOSADO AND JIMMY EJAI APPLICANTS AND: STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR EDUCATION, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR LANDS AND MINISTER FOR MINES AND ABORIGINAL LANDS TRUST FIRST RESPONDENTS THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT SHIRE OF BROOME THIRD RESPONDENT A R J INVESTMENTS PTY LTD, ADVANCE PTY LTD, WARREN MELVYN ARMS, ARROW PEARL CO PTY LTD, AUSTFISH PTY LTD, AUSTRALIAN SEA PEARLS PTY LTD, BLUE SEAS PEARLING CO, BRAMPTON FISHING CO PTY LTD, BROOME FISH AND DIVE CHARTERS, BROOME PEARLS PTY LTD, CAYSAND FISHERIES, CLIPPER HOLDINGS PTY LTD, COMEDIA PTY LTD, CYGNET BAY PEARLS, ROSS ROBERT FENN, IAN A MAY, P MAY, JOHN L JACKSON, NORMAN ALLAN JAMES, GORDON MASSEY, NOELINE MASSEY, MAXIMA PEARLING CO PTY LTD, EDEN MORRISON, BRANSBY MORRISON, SUSAN MORRISON, N & C HOSCHKE PTY LTD, RONALD FREDERICK NASH, NEWFISHING AUSTRALIA PTY LTD, MERVYN O'BYRNE, ELAINE O'BYRNE, PASPALEY PEARLING COMPANY PTY LTD, PASPALEY PEARLS PTY LTD, PEARLS PTY LTD, LYALL PRICE, R B LOWDEN PTY LTD, REDPEX NOMINEES PTY LTD, ROEBUCK PEARL PRODUCERS PTY LTD, TERRITORY CHIEF FISHING COMPANY, TONY LA MACCHIA, URS FELIX, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL AND ZILZIE NOMINEES PTY LTD FOURTH RESPONDENTS DAWN BESSARAB, LEISK BESSARAB AND HELEN BESSARAB FIFTH RESPONDENTS STIRLING RESOURCES NL SIXTH RESPONDENT TELSTRA CORPORATION LTD SEVENTH RESPONDENT JUDGE: BEAUMONT J DATE: 31 JULY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT (ON APPLICATION TO VACATE HEARING DATES) BEAUMONT J: 1 In order to understand the issues in this application to vacate the final hearing dates in an application for determination of native title, it is necessary to explain the relevant history of the matter, which is as follows: · The original claim was lodged with the National Native Title Tribunal ("the Tribunal") on 1 September 1995. · Mediation was undertaken by the Tribunal between October 1996 and April 1998. The Tribunal having concluded that there was no possibility of agreement between the parties, on 14 April 1998 the matter was referred to the Court for decision. · The respondents to the application include the State of Western Australia, the Commonwealth, the Shire of Broome, a group of fishing and pearling interests, the holder of a mining interest and Telstra. · On 19 June 1998, Lee J held an extended directions hearing in the matter and gave directions for its preparation for final hearing. · On 24 August 1999, Lee J gave further directions. · On 17 December 1999, Lee J held another extended directions hearing giving comprehensive directions for the management of the case. His Honour further ordered that the trial commence with an opening in Perth on 4 December 2000 and continue at locations in the claim area in April 2000. · The case was then substantively allocated to my docket. I have conducted several directions hearings in 1999 and 2000. 2 At a recent directions hearing, the applicants foreshadowed an application to vacate the hearing dates. The application is now made in the terms of an affidavit by the applicants' solicitor, Marnie Jane Parkinson, sworn on 24 July 2000 as follows: "1. I am a Legal Officer at the Kimberley Land Council ('KLC') and I have carriage of this matter. I am instructed to act on behalf of the Applicants in relation to this application ('the Bardi Jawi application'). 2. The KLC provides funding to the Applicants to assist and progress their application. The KLC also provides funding to, amongst others, the Applicants in the Karajarri application (W6100/98) and the Wanjina Wungurr-Wilinggin application (W6016/96 and W6015/99). The Karajarri application is presently being heard and the Wanjina Wungurr-Wilinggin application has been set down for trial to commence in April 2001. 3. In order to perform its service delivery responsibilities as a representative body under the Native Title Act, the KLC receives funding from the Aboriginal and Torres Strait Islander Commission ('ATSIC') on an annual basis. Each year the organisation receives an invitation to apply for native title funding from ATSIC for the coming financial year, with the invitation ordinarily arriving between February and March of the preceding financial year. In its funding application, KLC is required to submit a proposed budget for each expenditure item. 4. I am advised by the KLC's Senior Finance Officer that this year, the invitation to apply for funding was made by ATSIC in May and an amount of $173,280.00 was proposed by the KLC for the conduct of the Bardi Jawi application during the 2000-2001 financial year. Although a final allocation of funding has not yet been made for this year, ATSIC has advised the KLC that the total budget for this application is likely to be $79,994.00. 5. ATSIC has agreed to fund the KLC to assist the Applicants in the current Karajarri application through litigation, and has advised, as a formal policy position, that funding applications for the cost of litigation are to be made under ATSIC's supplementary funding guidelines. ATSIC, however, will make no guarantees as to the success of such funding applications. 6. The KLC makes decisions concerning the relative priority of applications in accordance with the organisation's 'Guidelines for Assistance in Native Title Matters', a copy of which is annexed and marked as Attachment MP1. These decisions are made by the KLC's NTRB Grants Committee, being a sub-committee of the KLC's Executive Committee. 7. At its meeting on 7 June 2000, and following advice from ATSIC in response to KLC's funding application for the 2000-2001 financial year, the NTRB Grants Committee resolved that the Bardi Jawi application should proceed to Court in 2002, allowing the Wanjina Wungurr-Wilinggin application to proceed in 2001. Reasons for this decision by the NTRB Grants Committee also include: (i) the fact that the anthropologist to be engaged as an expert witness for the Bardi Jawi application is presently engaged as an expert witness for the Karajarri application and will not be available to recommence work on this application until November; and, (ii) the fact that preparation for the Bardi Jawi application was not as advanced as that for the Wanjina Wungurr-Wilinggin application. 8. I am advised by the KLC that preparation for the Bardi Jawi application is not as advanced as planned as a result of funds allocated to … this application during the 1999-2000 financial year having been spent on amending it for the purpose of passing the registration test." 3 A similar application to vacate trial dates was recently rejected by Merkel J in Sebastian v W.A. (No WG 90/91 of 1998). His Honour said: "…arrangements have been made for the matter to proceed to hearing in Perth on 4 October with opening statements and then continuing in the week commencing 11 October at locations in the claim area. The concern of the court of course is that arrangements have been made with listing and allocation for that to occur on the basis of those dates being met but also there is, even more importantly, a public interest in getting native title claims that have been through the tribunal and the tribunal processes on for hearing in accordance with an orderly timetable. Whilst I think the court is sensitive to considerations of funding and other problems that may occur in native title matters, litigants in native title matters can't expect that the court will make them exceptional litigants or exceptional cases and in the normal course when a court fixes directions it's expected they will be abided by. In the normal course, when a court fixes a trial date, it expects that that will be adhered to, in fairness to the litigants in the case, in fairness to litigants in other matters in the court, and also in consideration of the function of the court to hear and determine disputes without delay. So my intent and purpose throughout has been to try and maintain a timetable which adheres to what was fixed in October 1999. The fact that there have been differences in applicant groups and the fact that there may have been some questions overhanging funding seemed to me to be matters that should have been sorted out in October 1999 [when the trial dates were set], not during the course of 2000. Now, I'm not expecting all to be perfect in an imperfect world, but they're just fundamental rules that timetables shouldn't be fixed if the parties don't think they can adhere to them but once they're fixed it seems to me the parties are obliged to adhere to them. … I have the view that the court has obligations to the community to bring these matters on in accordance with orderly timetables in fairness to the parties but also in the public interest to get native title matters resolved. If every time applicant groups turned into disputants between themselves native title matters had to go off indefinitely as this one will have the propensity to do, in the end the court's processes not only break down, but fail to serve the interests that they were set up to establish, which is to resolve disputes, [and] not [to] become a vehicle for enabling them to continue. … I think the parties have an obligation to try and maintain hearing dates once they've agreed to them. In the absence of unforeseen circumstances I think the court should not alter that process [and should] try to maintain hearing dates. Our system is largely dependent upon that degree of certainty and whilst, if I was satisfied that maintaining the hearing date would produce some injustice or unfairness to the parties I may take a different view. I'm not satisfied that what has been put to me in submissions, which I should say hasn't been supported by any affidavit material that suggests unfairness or injustice, that there is unfairness or injustice in maintaining the hearing date that I've indicated has been set now since 22 October 1999. In those circumstances it seems to me incumbent upon the parties to organise themselves to deal with what was always anticipated to be the position absent any unforeseen or new circumstances that might arise hereafter. In that regard it's not fruitful to surmise or hypothesise as to what may happen if a circumstance arises that should result in the court taking a different view. It can be dealt with when that happens but on the situation that's currently before me and on the material that's currently before me, I've decided that it's not appropriate to vacate the trial date and I propose to maintain it." 4 I agree entirely with what Merkel J has said, and with his Honour's approach. As McHugh J has noted – "… the public interest requires that disputes be settled, as quickly as possible" (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553). 5 For completeness, I should add that I was informed at a directions hearing held earlier this year that arrangements might need to be made to take the evidence of an elderly witness. Although an offer by the Court to hear this evidence in advance of the trial was made, it was not pursued by the applicants. I understand that the witness is now deceased. 6 As to the position with respect to the expert anthropological evidence referred to in para 7 of Ms Parkinson's affidavit, I am not persuaded that this is, itself, a justification for vacating the hearing dates. As has been noted, the original claim was made almost five years ago. The application has been amended on several occasions. If the applicants had in mind that a particular anthropologist should be retained, and that this would impact upon the timing of the trial, Lee J should have been so informed when, in December last year, his Honour fixed the trial dates. 7 The application to vacate final hearing dates is refused. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 31 July 2000 Solicitor for the Applicants: M Parkinson Kimberley Land Council Solicitor for the First Respondents: T Creewel Crown Solicitor for the State of Western Australia Solicitor for the Second Respondents: A Rorrison Australian Government Solicitor Solicitor for Western Australia Fishing Industry Council: K White Hunt & Humphrey Solicitor for the Seventh Respondent: C Lawrence Blake Dawson Waldron Date of Hearing: 27 July 2000 Date of Judgment: 31 July 2000