FEDERAL COURT OF AUSTRALIA Colbung v State of Western Australia [2001] FCA 1342 NATIVE TITLE – application to vary timetable for hearing – importance of mediation under Native Title Act 1993 – report under s 136G – where no actual trial date set Native Title Act 1993 (Cth) ss 108, 136G Bolton v State of Western Australia [2001] FCA 1074 distinguished Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 referred to State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 referred to KEN COLBUNG, GLEN COLBUNG, DONALD CORBETT & ORS (SOUTH WEST BOOJARAH); MINNIE VAN LEEUWEN ON BEHALF OF THE HARRIS FAMILY; VICTOR & CLARENCE ISAACS; LORRAINE BELLOTI & ORS ON BEHALF OF THE NYUNGAR PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS WG 6279, 6085, 6258 and part of 6274 of 1998 FINN J PERTH 19 SEPTEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 6279, 6085, 6258 and part of 6274 of 1998 BETWEEN: KEN COLBUNG, GLEN COLBUNG, DONALD CORBETT & ORS (SOUTH WEST BOOJARAH) FIRST APPLICANTS MINNIE VAN LEEUWEN ON BEHALF OF THE HARRIS FAMILY SECOND APPLICANTS VICTOR & CLARENCE ISAACS THIRD APPLICANTS LORRAINE BELLOTI & ORS ON BEHALF OF THE NYUNGAR PEOPLE FOURTH APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: FINN J DATE OF ORDER: 17 SEPTEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The time in order 15 made on 7 September 2000 in which the Applicants are to file and serve preliminary expert reports be extended to 30 May 2002. 2. The time in order 16 made on 7 September 2000 in which respondents may file preliminary expert reports be extended to 31 August 2002. 3. The time in order 17 made on 7 September 2000 in which the Applicants are to file and serve a "points of claim" document be extended to 30 May 2002. 4. The time in order 20 made on 7 September 2000 in which the Applicants are to file and serve a statement of cultural and customary concerns be extended to 31 January 2002. 5. The time in order 21 made on 7 September 2000 in which Respondents may file and serve a statement in response be extended to 28 February 2002. 6. The time in order 26 made on 7 September 2000 in which the Applicants are to serve substances of evidence and lists of documents be extended to 30 September 2002. 7. The time in order 27 made on 7 September 2000 for commencement of the trial be extended to December 2002. 8. The time in order 29 made on 7 September 2000 in which an application may be made for evidence to be taken other than in Perth be extended to 31 October 2002. 9. The time in order 30 made on 7 September 2000 for the convening of a pre-trial conference be extended to 30 November 2002. 10. The date "31 June 2002" in order 34 made on 7 September 2000 be amended to 31 December 2002. 11. The NNTT to report to the Court on the progress of the mediation by providing it with a mediation report following every two monthly meeting held between the State and the Applicants. 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 6279, 6085, 6258 and part of 6274 of 1998 BETWEEN: KEN COLBUNG, GLEN COLBUNG, DONALD CORBETT & ORS (SOUTH WEST BOOJARAH) FIRST APPLICANTS MINNIE VAN LEEUWEN ON BEHALF OF THE HARRIS FAMILY SECOND APPLICANTS VICTOR & CLARENCE ISAACS THIRD APPLICANTS LORRAINE BELLOTI & ORS ON BEHALF OF THE NYUNGAR PEOPLE FOURTH APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA & ORS RESPONDENTS JUDGE: FINN J DATE: 19 SEPTEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The proceedings in which the present motion was filed is a consolidated one involving four overlapping native title determination applications made under the Native Title Act 1993 (Cth) ("the Act"). They relate to an area in the south-west of Western Australia which, for convenience, is referred to as "Area 1". The several applications were deemed to be filed in 1998. The order consolidating the proceedings was made by French J on 7 September 2000. On the same day his Honour gave detailed and timetabled directions in the proceedings that were to lead to a trial to commence on a date "not earlier than February 2002". 2 The motion before me, filed by the first respondent (the State of Western Australia), sought to vary the present timetable in ways that would result in a nine-month adjournment of any projected hearing. No party in the proceedings opposed such an adjournment. The four applicants, the State of Western Australia and the Commonwealth of Australia made submissions – and in some instances put on evidence – in support of the adjournment. Additionally, a detailed report to the Court was made under s 136G of the Act by the National Native Title Tribunal ("the NTTT") member presiding over the mediation conference presently in train in that matter. That report, which (i) outlines the progress and prospective advantages of this mediation; (ii) locates it in the context of other mediations in train; and (iii) considers the costs and the resource allocation burdens likely to arise for the applicants in particular if they were required to conduct that mediation and to prepare for a trial in parallel, recommended: "Given the progress to date, the change in the State Government's position in relation to the mediation of Native Title applications in the South West (and the rest of WA), and the commitment of other key parties to working towards a mediated Native Title outcome, I strongly commend that reasonable time be given to the parties to constructively and adequately enter into mediation, with the support of the Court." 3 The reference in the recommendation to the State Government's changed position in relation to mediation was the subject of evidence before me. Prior to February 2001 the State did not participate in mediation of the claim in this proceeding. Indeed the orders of French J of 7 September 2000 were made at a time when the State had indicated it would not so proceed and was seeking a resolution of this matter in this Court. 4 The statement in the recommendation as to the commitment of the key parties to working towards a mediated outcome was itself reflected in submissions made to me even if the third applicant expressed some dissatisfaction with the present mediation. It was clear on the material before me that the principal participants in this matter have a clear and marked preference both for securing a mediated resolution of all (or else most) of the issues in the proceeding and for avoiding the taking up of adversarial postures for the purposes of preparing for the litigation at this stage in the mediation process. The latter consideration was emphasised given the relatively short period remaining before the time stipulated for the matter to be ready for trial. 5 There has to date been no significant slippage in compliance with the timetabling directions of 7 September 2001. That state of affairs, though, is not one that can be expected to be maintained. It is more than likely that several of the applicants will have real difficulties for both logistical and financial reasons in meeting the current deadlines. In particular the applicants in WG 6279 and 6274 of 1998 – the only applicants presently enjoying financial support for their application – have as their representative the Noongar Land Council which is likely to be engaged in a number of similar trials in the first half of next year. Even the State acknowledged that its own preparation would be less than perfect in the time now available. 6 The affidavit material filed by the State and foreshadowed by the first applicant and the report under s 136G accentuated (i) the logistical difficulties that would arise for the parties in the conduct in tandem of the mediation and of pre-trial preparation; and (ii) the strains upon the resources available to facilitate and prosecute the resolution of native title applications generally should mediation and trial preparation become parallel processes in this and like cases. 7 Some number of the submissions, but particularly those of the State and the Commonwealth, quite properly referred me to the decision of Conti J in Bolton v State of Western Australia [2001] FCA 1074 where his Honour refused an adjournment application in apparently somewhat similar circumstances in relation to timetabling orders for a projected trial in August 2002 of claims relating to "Area 2" in the south-west of Western Australia. While I do not question the manner in which Conti J exercised his discretion in light of the considerations his Honour regarded as of moment in that matter, I do not consider that Bolton's case assisted significantly in how I should exercise my discretion in the particular, and somewhat different, circumstances obtaining here. 8 It is the case that there is a public interest in the early and expeditious resolution of disputes: cf Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 at 553 – a public interest that accounts in part (there are other relevant interests as well) for the Court's usual insistence upon both compliance with pre-trial timetables and adherence to fixed trial dates. But that public interest is not necessarily secured by an inflexible adherence to the particular case management procedures (by way of timetabling and otherwise) that have been put in place to bring about the resolution of a dispute in a given case. The "ultimate aim of a court is the attainment of justice": State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154. 9 In the setting of native title applications, account must be taken of additional considerations which bear on the attainment of justice and which relate to the place of mediation in dispute resolution under the Act. The structure created by the Act for the resolution of native title applications gives mediation a central place. So much emerges from the Preamble in its privileging of a "special procedure" involving processes of "conciliation"; from the constitution of, and the functions allocated to, the Tribunal: see s 108(1A) and (1B); and from the reference for mediation procedure of Division 1B of Part 4 of the Act. There are obvious considerations of public interest bearing (inter alia) on community cohesion and on the limitations of the adversarial system that support the Act's "special procedure". 10 Mediation, unlike litigation, will not necessarily result in the formal resolution of a dispute. The scheme of the Act reflects this: see eg s 136G; and for that reason the adversarial process retains its place as the ultimate instrument for resolving applications. But the balance struck between mediation and litigation can itself be an important consideration influencing the exercise of a judicial discretion where, in a case such as the present, an adjournment is sought further to prosecute a mediation which is underway, from which no party wishes to resile and for which there are prospects entertained of a significant partial, if not total, resolution of the proceedings. 11 While recognising that in many instances it may be entirely appropriate that the conduct of a mediation and the continuing preparation for a trial in accordance with a fixed timetable proceed in tandem: see Bolton's case, and the cases there referred to; I am satisfied that the present was not such an instance. For both positive reasons (aimed at promoting mediation as a preferred form of dispute resolution where circumstances such as the present obtain) and for negative reasons (relating both to the motion itself and to the difficulties properly to be apprehended if mediation and the pre-trial procedures proceed in parallel), I considered on the evidence before me the adjournment sought should be granted. 12 The positive reasons include (i) the State's change of mind in committing itself to mediation after the 7 September 2000 timetable was set; (ii) the progress made in the mediation commenced and the commitment of the parties to a mediated solution; (iii) the expectation that even if not fully successful, the mediation will produce both significant agreement between the parties and a contraction of the matters in issue; and (iv) the mediation is not being sought by any party to the detriment of another. 13 The negative reasons include (i) the motion is not based simply on funding considerations, but has a positive purpose; (ii) logistical difficulties both in costs and resource allocation would be occasioned, given the time available before February 2002, if both processes were to proceed in tandem; (iii) given the current level of co-operation between the parties, the risk should be avoided of such being imperilled by the need to adopt adversarial postures for litigation related purposes; and (iv) the form and timing of the Noongar Land Council's involvement in other claims (some contiguous to Area 1) in early 2002 are likely to compromise its effective prosecution of the first applicant's claim in another trial in the same period. 14 There is one final matter to which reference should be made as a matter of completeness. It is that no actual trial date was set for February 2002. The timetable, though, clearly envisaged a trial in the first half of 2002 and not, as now proposed, at the end of 2002. 15 I have already made orders in terms of the first respondent's notice of motion. These are my reasons for those orders. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 19 September 2001 Counsel for the First and Fourth Applicants: Mr M Rynne Solicitor for the First and Fourth Applicants: Noongar Land Council Counsel for the Second Applicants: Mr P Williams Solicitor for the Second Applicants: Williams & Co Mr C Isaacs appeared in person for the Third Applicants Counsel for the First Respondent: Mr G Ranson Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia Counsel for the Second Respondent: Ms R Webb Solicitor for the Second Respondent: Australian Government Solicitor Counsel for Respondent Group 3A: Ms E Lacey Solicitor for Respondent Group 3A: Minter Ellison Counsel for the Shire of Manjimup: Mr C Slarke Solicitor for the Shire of Manjimup: McLeod & Co Counsel for the Uniting Church in Australia: Mr P Thomson Counsel for WA Fishing Industry Council Inc: Mr M McKenna Solicitor for WA Fishing Industry Council Inc Hunt & Humphry Amicus Curiae (National Native Title Tribunal): Ms L Lloyd Date of Hearing: 17 September 2001 Date of Judgment: 17 September 2001