Risk v Quall [2001] FCA 5

FEDERAL COURT OF AUSTRALIA

Risk v Quall [2001] FCA 5 Matter No. DG 6003 and DG 6004 of 1998 WILLIAM MAXWELL RISK & ORS v KEVIN (TIBBY) QUALL & ORS and NORTHERN TERRITORY OF AUSTRALIA O'LOUGHLIN J ADELAIDE 11 JANUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORYDISTRICT REGISTRY DG6003 and DG6004 OF 1998

BETWEEN: WILLIAM MAXWELL RISK and ORS (LARRAKIA PEOPLE)

APPLICANT

AND: KEVIN (TIBBY) QUALL and ORS

FIRST RESPONDENT

NORTHERN TERRITORY OF AUSTRALIA

SECOND RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 11 JANUARY 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The applicants bring in short minutes of order in terms consistent with these reasons. 2. Any question of costs on the applicants' notice of motion is reserved to the trial judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORYDISTRICT REGISTRY DG6003 and DG6004 OF 1998

BETWEEN: WILLIAM MAXWELL RISK and ORS (LARRAKIA PEOPLE)

APPLICANT

AND: KEVIN (TIBBY) QUALL and ORS

FIRST RESPONDENT

NORTHERN TERRITORY OF AUSTRALIA

SECOND RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 11 JANUARY 2001

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 11 December 2000 the applicant in these proceedings, William Maxwell Risk, acting on behalf of the Larrakia People, filed a notice of motion in which he sought nine orders. Some of the orders that were sought related to issues of discovery but most of the proposed orders dealt with the manner in which evidence for the applicants would be adduced during the course of the trial. 2 Subsequent to the filing and serving of the notice of motion the parties engaged in correspondence and, as a result, agreement was reached in respect of six of the nine proposed orders. I see no reason why the Court should not support the resolution of the parties and hence there will be orders in terms of pars 1, 2, 3, 6, 8 and 9 as sought by the applicants. 3 The proposed orders that are in dispute are those contained in pars 4, 5 and 7 of the notice of motion. However in order to understand fully the issues that have been joined between the parties it is also desirable to refer to the orders that have now been made by consent and that are contained in pars 3 and 6. Set out hereunder are pars 3 to 7 inclusive: "3. Evidence of a witness at the trial of the action may be given in the form of a written statement adopted by a witness or orally or both orally and by a written statement. 4. Oral evidence at the trial may include statements made by a witness after consultation with other persons. Subject to further order, where such consultation occurs the identity of the persons shall be recorded in the transcript. 5. Subject to further Order, oral evidence at the trial may include statements from a group of witnesses. 6. By 23 February 2001 the Applicants are to serve on the Respondents a summary of the evidence that will be given orally by a primary witness to be called by the Applicants. 7. By 23 February 2001 the Applicants are to serve on the Respondents notice giving the content of any evidence that will be given in the form of a written statement by a primary witness to be called by the Applicants." 4 Argument in this matter proceeded by way of written submissions only; hence any reference to a submission that has been made on behalf of the applicant or on behalf of the second respondent, the Northern Territory of Australia, is a reference to the written submissions of counsel. Mr Kevin (Tibby) Quall, the first respondent, who was unrepresented, took no part in the dispute. 5 The applicants intend, generally, that evidence in chief will take the form of witness statements. However counsel has identified an exception to that proposition where evidence is to be led during site visits. In that case it is intended, generally, that evidence will be given orally. 6 As I understand the submissions that have been presented on behalf of the applicants, pars 6 and 7 of the notice of motion reflect the fact that the evidence of some witnesses will be adduced orally – as to which see par 6 – whilst the evidence of other witnesses will be adduced in written form – as to that see par 7. However the language of par 7 has given rise to some uncertainty and it is because of that uncertainty that the respondent has opposed the making of an order in those terms. In the respondent's written submissions the following passage appears: "8. In paragraph 9 of the Applicants' written submissions it is noted that the use of witness' statements as evidence in chief of the maker is part of the usual case management system applied in the Federal Court. It is also part of that usual case management system for orders to be made that witness' statements be served well in advance of the hearing. If this is in fact the intent of order 7 of the Notice of Motion, the Second Respondent does not oppose the making of an order to that effect, provided that it is clear that what is required to be served on the Respondents is the entire content of the witness' statements."