FEDERAL COURT OF AUSTRALIA Sampi v State of Western Australia (No. 3) [2001] FCA 695 NATIVE TITLE – EVIDENCE – taking of evidence in restricted circumstances – gender restricted evidence – disclosure to male professionals not present at hearing – variation of previous order. PAUL SAMPI AND OTHERS V STATE OF WESTERN AUSTRALIA AND OTHERS WG 49 OF 1998 JUDGE: BEAUMONT ACJ DATE: 30 MAY 2001 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 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 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 AND: 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 E-COM MULTI LTD SIXTH RESPONDENT TELSTRA CORPORATION LTD SEVENTH RESPONDENT BRUCE RICHARD BROWN AND LYNDON MAYFIELD BROWN (CYGNET BAY PEARLS) EIGHTH RESPONDENTS JUDGE: BEAUMONT ACJ DATE OF ORDER: 30 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Suspend operation of sub-par (b) of order 2 made on 17 May 2001. 2. Liberty to apply. 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 WESTERN AUSTRALIA DISTRICT REGISTRY WG 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 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 AND: 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 E-COM MULTI LIMITED SIXTH RESPONDENT TELSTRA CORPORATION LTD SEVENTH RESPONDENT BRUCE RICHARD BROWN AND LYNDON MAYFIELD BROWN (CYGNET BAY PEARLS) EIGHTH RESPONDENTS JUDGE: BEAUMONT ACJ DATE: 30 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT (NO. 3) (ON APPLICANTS' APPLICATION TO RESTRICT PUBLICATION OF CERTAIN EVIDENCE) BEAUMONT ACJ: 1 Before me is an application in the form of a letter from the Kimberley Land Council, dated 24 May 2001, to apply to vary the orders I made in this matter on 17 May 2001. The particular order in question is Order 2(b). Order 2 was in these terms: "2. The transcript of evidence is to have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words "Gender Restricted Evidence - This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult males. This transcript must not be viewed by persons other than – (a) those present at the time of this hearing; and (b) Professor Howard Morphy and Mr Paul Greenfeld, being, respectively, the second and fourth respondents' expert anthropologists, provided always: (i) that counsel for those respondents respectively shall first have certified in writing, filed with the Court that, in his opinion, disclosure of that transcript or part of that transcript is necessary at that stage for the purposes of the proper conduct of the case of that respondent; and (ii) that such expert has first filed with the Court an undertaking to the Court that the evidence in that transcript will not be divulged to any person not present at the hearing of the evidence and be not used for any purpose other than for the purpose of this proceeding or any appeal." 2 The application for variation is propounded upon the footing that there has been a change of circumstance since 17 May 2001 in terms of the time at which the proposed restricted evidence will be taken. 3 In par 2 of my reasons dated 17 May 2001, I said that the second and fourth respondents had taken the position that given the dimensions of the on site evidence in the matter, spread over a period in excess of three weeks, it was not practicable to arrange for those professionals, specifically anthropologists, to be present over the period. The change in position relied upon by the applicants is that they now propose that the restricted evidence be taken up on two days only, namely Monday, 25 June and Tuesday, 26 June 2001. 4 In my opinion, this is a substantial change of circumstance but it needs to be balanced against the prejudice to be suffered on the part of the second and fourth respondents; that it will be expensive, to some degree inconvenient, and in the case of Professor Morphy (who will be overseas), impossible to attend. I have had the benefit of full argument from counsel on the present application. Again, I have found the question a difficult one but I have come to the view that the preferable course to be adopted in the existing exigencies of the case is to suspend temporarily the operation of paragraph 2(b) until further order. 5 I am much influenced in this course by another recent development in the matter, that is to say, the giving of a direction today that on a restricted basis the confidential notes of Mr Bagshaw, mentioned in par 8 of my reasons dated 30 April 2001, be made available to the male legal representatives upon the footing that this material will disclose the substance of the gender restricted evidence. In this connection a further application has been foreshadowed on behalf of the second respondent, and I would apprehend on behalf of the fourth respondent as well, for permission to disclose the material in those confidential notes to the expert anthropologist retained by that respondent. 6 It is anticipated that this application would be made before the evidence is given on 25 and 26 June. In a sense, therefore, that application will supersede the present application. In those special circumstances, and again emphasising that the orders I make in the present connection are necessarily of an interlocutory or interim character and not final, I suspend the operation of sub-par (b) of Order 2 made on 17 May 2001 until further order. I reserve all costs. Orders 7 I merely add to the orders I have made: 1. Suspend operation of sub-par (b) of Order 2 made on 17 May 2001. 2. Liberty to apply. 3. Costs reserved. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont. Associate: Dated: 30 May 2001 Mr G M G McIntyre Counsel for the Applicants: Solicitor for the Applicants: Kimberley Land Council Counsel for the First Respondents: Mr T Creewell Solicitor for the First Respondents: Crown Solicitor for the State of Western Australia Counsel for the Second Respondents Mr K M Pettit Solicitor for the Second Respondents: Australian Government Solicitor Counsel for Western Australia Fishing Industry Council and the Eighth Respondents Mr P Quinlan Solicitor for Western Australia Fishing Industry Council and the Eighth Respondents Hunt & Humphrey Date of Hearing: 30 May 2001 Date of Judgment: 30 May 2001