FEDERAL COURT OF AUSTRALIA Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v State of Queensland & Ors [2000] FCA 1959 PRACTICE AND PROCEDURE - Pleadings - application seeking withdrawal of admission contained in Points of Response. LARDIL, KAIADILT, YANGKAAL, GANGALIDDA PEOPLES v STATE OF QUEENSLAND, COMMONWEALTH OF AUSTRALIA, PASMINCO CENTURY MINE LIMITED, GROUP 2 PASTORAL RESPONDENTS AND QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION QG207 OF 1997 COOPER J BRISBANE 19 DECEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG207 OF 1997 BETWEEN: LARDIL, KAIADILT, YANGKAAL, GANGALIDDA PEOPLES APPLICANTS AND: STATE OF QUEENSLAND FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT PASMINCO CENTURY MINE LIMITED THIRD RESPONDENT GROUP 2 PASTORAL RESPONDENTS EIGHTH, NINTH AND TENTH RESPONDENTS QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION ELEVENTH RESPONDENT JUDGE: COOPER J DATE OF ORDER: 19 DECEMBER 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The second respondent be given leave to withdraw the admissions and amend its Points of Response as indicated in exhibit "HN1" to the affidavit of Helen Margaret Neville deposed to on 7 December 2000. 2. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG207 OF 1997 BETWEEN: LARDIL, KAIADILT, YANGKAAL, GANGALIDDA PEOPLES APPLICANTS AND: STATE OF QUEENSLAND FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT PASMINCO CENTURY MINE LIMITED THIRD RESPONDENT GROUP 2 PASTORAL RESPONDENTS EIGHTH, NINTH AND TENTH RESPONDENTS QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION ELEVENTH RESPONDENT JUDGE: COOPER J DATE: 19 DECEMBER 2000 PLACE: BRISBANE EX TEMPORE REASONS FOR JUDGMENT 1 This is a notice of motion filed by the second respondent ("the Commonwealth") on 7 December 2000 seeking to amend its points of response. The amended document is an exhibit to the affidavit in support of the notice of motion of Helen Margaret Neville filed 7 December 2000. 2 The amendments seek to withdraw admissions made by the Commonwealth about, what has been known as the "permission system". Specifically paragraphs 43(a) and (b), 44(b) and (c), 53(a), 54(a), 63(a)(ii) and (iii) and 64(a)(ii) and (iii) are sought to be withdrawn. 3 I propose to grant leave to have these admissions withdrawn. I do that having considered the cases referred to by counsel and the principles involved in them. It seems to me that there are three essential elements that bear in this case. Those three elements are : 1. The explanation for the withdrawal of the admissions. 2. Consideration of the public interest. 3. Any prejudice that may result. 4 The explanation given by the Commonwealth is that as the evidence in the trial unfolded, both of an expert and non-expert kind, it became apparent that the simplicity of the admissions were wrong. 5 The applicants say that it is not a satisfactory explanation for the withdrawal of the admissions. However, the fact that there is an explanation given shows that the application to withdraw the admissions is neither arbitrary nor capricious, but for some reasoned purpose. 6 I have considered the question of whether or not it is in the public interest that the true issue be exposed. The Commonwealth submits that it is in the public interest to have this native title determination resolved after having received all of the evidence and having received full submissions on all of the issues before the Court. The Commonwealth submits it should not now be restrained in making submissions on the evidence due to admissions, which now, in light of the evidence, were made in error. In my view in litigation of this sort, having regard to the substantial public interest, the question of the existence of any "permission system" in pre-contact times is a matter that ought to be determined on the whole of the evidence. 7 Considering then the question of prejudice. The Commonwealth submits that there has been full evidence of an expert and non-expert kind, regarding the nature and content of any "permission system". Further, the Commonwealth notes that no objections to the cross-examination of any witness were made by the applicants, in relation to the "permission system". The applicants contend that the withdrawal of these admissions would prejudice them. Further evidence, particularly from the elder witnesses, would have been sought with more focus on what their fathers or grandfathers might have told them. The applicants also submit that (other than Mr Amini by Mr Flanagan) it was not put to any witness that what they had said in their affidavits was not true. 8 Having carefully looked at the material, and particularly having heard the submissions over the last few days, I am satisfied that the case would not have been run differently, save that there may have been an attempt to further explore the concept of permission as it exists now and in recent times more than in the classical period. The issue of the "permission system" in recent time, or the contemporary acknowledgment of it, was always, and remains an issue of fact. 9 Consequently, I am not satisfied that there is a prejudice. To the extent that it was put in argument by the applicants that there has been a failure to fairly put the issue to the relevant witnesses, and, to comply with the requirements of the rule in Browne v Dunn (1893) 6 R 67, those issues remain. They either provide a basis of protection for the applicants from a late questioning of the "permission system" or they do not. To the extent that there has not been a rigorous cross-examination of the indigenous witnesses who spoke of a "permission system", then the failure to cross-examine is a matter that will be taken into account in the assessment of the evidence. 10 Therefore, it seems to me on balance, looking at the various interests of all the parties, that the public interest is advanced by allowing the issue to be fully litigated and the particular interest of the applicants is not prejudiced (having regard to the content of the admission and its narrowness in the context of the totality of the questions for me to decide on a "permission system"). In those circumstances, I am satisfied that I ought to allow the withdrawal of the admissions, and I so order. I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment herein of the Honourable Justice Cooper. Associate: Dated: 23 February 2001 Counsel for the Applicant: R Howie SC and D Parsons Solicitor for the Applicant: Andrew Chalk & Associates Counsel for the First Respondent: G Hiley QC and S McLeod Solicitor for the First Respondent: Crown Law Counsel for the Second Respondent: J Bond SC and D Williams Solicitor for the Second Respondent: Australian Government Solicitor Third Respondent: No appearance Solicitors for the Eighth, Ninth and Tenth Respondents: Deacons Counsel for the Eleventh Respondent: P Flanagan Solicitor for the Eleventh Respondent: Peter Gore & Associates Date of Hearing: 13 December 2000 Date of Judgment: 19 December 2000