FEDERAL COURT OF AUSTRALIA De Rose v The State of SA (No 2) [2001] FCA 1614 PRACTICE AND PROCEDURE – applicant seeking to admit into evidence two new experts' reports thirty-two days into trial – whether leave should be granted to allow materials to be so admitted – effect of principles of case management – whether any irretrievable prejudice to respondents – other factors to be considered in weighing up discretion State of Queensland v JL Holdings Pty Ltd (1996) 141 ALR 353 followed PETER DE ROSE AND OTHERS v THE STATE OF SOUTH AUSTRALIA AND OTHERS (NO 2) NO SG 6001 OF 1996 O'LOUGHLIN J 13 SEPTEMBER 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 6001 OF 1996 BETWEEN: PETER DE ROSE FIRST APPLICANT OWEN KUNMANARA SECOND APPLICANT PETER TJUTJATJA THIRD APPLICANT JOHNNY WIMITJA DE ROSE FOURTH APPLICANT MICHAEL MITAKIKI FIFTH APPLICANT PANNIKAN BAKER SIXTH APPLICANT PEGGY CULLINAN SEVENTH APPLICANT RINI KULYURU EIGHTH APPLICANT PUNA YANIMA NINTH APPLICANT JULIE TJAMI TENTH APPLICANT SADIE SINGER ELEVENTH APPLICANT WHISKEY TJUKANKU TWELTH APPLICANT AND: THE STATE OF SOUTH AUSTRALIA FIRST RESPONDENT R D FULLER PTY LTD AND DOUGLAS CLARENCE FULLER SECOND RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 13 SEPTEMBER 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Mr Craig Elliott's genealogical charts be not received as an exhibit in this trial. 2. Leave be granted to the applicants to file and serve nunc pro tunc the second report of Mr Elliott, presently identified as MFI A60. 3. The question of costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG 6001 OF 1996 BETWEEN: PETER DE ROSE FIRST APPLICANT OWEN KUNMANARA SECOND APPLICANT PETER TJUTJATJA THIRD APPLICANT JOHNNY WIMITJA DE ROSE FOURTH APPLICANT MICHAEL MITAKIKI FIFTH APPLICANT PANNIKAN BAKER SIXTH APPLICANT PEGGY CULLINAN SEVENTH APPLICANT RINI KULYURU EIGHTH APPLICANT PUNA YANIMA NINTH APPLICANT JULIE TJAMI TENTH APPLICANT SADIE SINGER ELEVENTH APPLICANT WHISKEY TJUKANKU TWELTH APPLICANT AND: THE STATE OF SOUTH AUSTRALIA FIRST RESPONDENT R D FULLER PTY LTD AND DOUGLAS CLARENCE FULLER SECOND RESPONDENT JUDGE: O'LOUGHLIN J DATE: 13 SEPTEMBER 2001 PLACE: ADELAIDE EX TEMPORE RULING 1 On Friday 7 September 2001, the second respondents ("the Fullers") filed and served a notice of motion in which they sought certain declarations and orders against the interests of the applicants. The catalyst which led to the Fullers issuing this notice of motion, which was supported by the affidavit of their solicitor, Mrs Craddock, was the late application by the applicants to tender a second report of Mr Craig Elliott. Mr Elliott is a consulting anthropologist who has been retained by the applicants to give evidence in the trial. 2 It is timely at this stage of these reasons to also mention Ms Susan Woenne-Green. She also is an anthropologist who has been retained by the applicants with the intention that she too would give evidence in the trial. However, Ms Woenne-Green has taken ill and the question of her ability to give evidence in the trial has now arisen and become a matter of uncertainty. 3 The Fullers sought a declaration that certain genealogical charts that had been prepared by Mr Elliott and received into evidence de bene esse as exhibit A57, as well as his second report that had been served on 28 August 2001, (the thirty-second day of the trial), were served in contravention of the orders of the court dated 10 August 2000. 4 The Fullers also sought an order that the applicants be denied the right to tender the report or, in the alternative, that they not be entitled to rely on the report unless they first obtained an enabling order from the court that would vary the timetable for the filing and serving of expert reports. 5 When the notice of motion was called on for hearing, the notice of motion was amended, without opposition from counsel for the applicants so that it sought a further order that the genealogies, to which I have earlier referred as exhibit A57, should not be received into evidence. The first respondent, the State of South Australia, supported the second respondent only in respect of the seeking of an order that the genealogies not be received into evidence. 6 The starting point in a consideration of this matter is the order of the court that was made 12 months ago or more, on 10 August 2000. It ordered that the applicants were to file and serve their experts' reports upon which they would, or may, rely in this matter by 24 November 2000, save for Mr Elliott's report, which was to be filed and served by 22 December 2000. His report was in fact filed on that day. 7 Further orders that were made by the court on 10 August 2000 required the respondents to file and serve their experts' reports by 23 February 2001, and the orders further allowed for the applicants to file experts' reports in reply to the respondents' experts' reports by 30 March 2001. On 23 April 2001 orders were made varying some of the dates to which I have just alluded, but the date for the filing of Mr Elliott's report, 22 December 2000, was not one of the dates that was varied. 8 In light of the events that have occurred, it is necessary to emphasise the importance that the court attaches to the adherence of timetables for the filing and serving of experts' reports. Litigation that involves issues of native title delves deeply into historical, anthropological, archaeological and linguistic disciplines, to name the more obvious areas of inquiry. It is of the utmost importance that each party to the litigation be supplied in ample time with the expert reports that another party will or may rely upon during the course of the trial. Only by this means will the receiving party have the time that will reasonably be needed to consult with his, her or their corresponding consultant or expert on the contents of the reports that have been served. 9 To serve on the thirty-second day of the trial, without either explanation or leave, a second report by an expert witness is totally inimical to the fair and reasonable prosecution of a trial. The court must express its disapproval to such conduct. 10 In the preparation of his first report, Mr Elliott has asserted facts and he has expressed opinions. In his evidence he explained that he spent 110 days doing field work in the far north-west of the state for the purposes of the preparation of his initial report. In addition to that field work, he also spent an extensive amount of time doing research work – some 150 or 160 days. Much, but not all, of the asserted facts in his first report were allegedly obtained from informants who have given evidence in the trial. To the extent that such an informant when giving evidence did not assert that which Mr Elliott in his initial report attributed to that witness, it is obvious that it would be necessary for Mr Elliott to correct or qualify his initial report. There were, indeed, some such contradictions or gaps in the evidence of some of the Aboriginal witnesses. It would therefore have come as no surprise for the applicants to assert a need to revise the report, or at least some aspect or aspects of it. 11 Following upon the completion of the evidence that was taken at Marla and on site, the solicitor for the applicants wrote the solicitors for the respondents on 8 August 2001 advising that: "Supplementary reports are intended to be filed and served in relation to Craig Elliott and Susan Woenne-Green." 12 However, no reasons were given in that letter for the need to file such supplementary reports. Mrs Craddock, in her capacity as solicitor for the Fullers answered the letter of 8 August 2001 by her letter of 10 August 2001 asking for more detailed information about the supplementary reports. A reply came on the same day, 10 August 2001, from the solicitor for the applicants stating that the supplementary reports will not be a substantial revision and they will deal with evidence given since the report. 13 Notwithstanding that advice, 12 days later, on 22 August 2001, the solicitor for the applicants wrote Mrs Craddock saying – and again without any explanation – that there would be no supplementary report. Yet despite that contradictory information, six days later on 28 August, the applicants' solicitors served a report, styled a supplementary report, on the respondents. Mrs Craddock wrote on 31 August 2001 seeking an explanation, but she has not been extended the courtesy of a reply. 14 The applicants, in their role as respondents to the notice of motion, filed the affidavit of Mr Timothy James Wooley, the solicitor for the applicants. There are three aspects of Mr Wooley's affidavit which, in my opinion, must be the subject of comment and, to a degree, the subject of criticism. In the first place, he referred to the orders of 10 August 2000 and 23 April 2001 which dealt with the timetable for the filing of reports, including Mr Elliott's report, saying of them "Neither these orders nor any of the other orders of the court have addressed the question of supplementary reports." 15 I must say that I am taken aback by the apparent naivety of that statement. I would have expected any legal representative to have known and to have understood that an order of the court calling for the filing and serving of Mr Elliott's report by 22 December 2000 meant what it said, and that by clear implication the order did not countenance the possibility of a second or a supplementary report. 16 The second area of concern is based more out of confusion than anything else. On 5 September 2001, whilst counsel was addressing, I asked Mr Howie SC, counsel for the applicants in the substantive proceedings, at p 2210 of the transcript whether the need to file Mr Elliott's genealogical charts was caused as a result of Ms Woenne-Green's illness. Mr Howie replied, "No, not the genealogies." Mr Wooley in paragraph 18 of his affidavit had this to say: "I am advised by Mr Howie of counsel that, having regard to the ill health of Ms Woenne-Green and the possibility that she may not be well enough to give evidence, it would be necessary to have Mr Elliott deal in his evidence with the early ethnographic sources and with the eight questions referred to upon page 2 of his supplementary report." 17 After revisiting the transcript and the paragraph in Mr Wooley's affidavit, I realise that two different subjects were being addressed: (1) the genealogies and, (2) the report. That was not made clear at the time. 18 The third area of concern is perhaps the most serious. In paragraph 28 of his affidavit Mr Wooley deposed in these terms. "The genealogies prepared by Mr Elliott are neither expert reports nor witness statements." He went on to assert that they were no more than documents that had been referred to in Ms Woenne-Green's report. I can only describe this as an exercise in masochism. If, as Mr Wooley asserts, the genealogies are not the work of an expert, their claim to admissibility diminishes substantially and any application to tender them becomes very tenuous. In truth, as his oral evidence made clear, he did advance Mr Elliott as an expert. In the drafting of his affidavit he was purporting to assert that the form of the genealogies as distinct from their substance meant that they were not expert reports. Such a semantic stratagem does not assist in the identification of the merits of the attitude adopted by the applicants' advisers. 19 In truth, the situation is, as Mr Howie acknowledged during the course of his submissions, that the applicants are gravely concerned about their ability to properly present and prosecute their clients' case in their application for a determination of native title. They need anthropological evidence to support their case and Ms Woenne-Green, their intended witness, may be unable to give evidence. At some stage she had been chosen as the anthropologist to prepare, present and give evidence upon matters of genealogy. At this late stage, which we must all recognise is no fault of the applicants but brought about only by Ms Woenne-Green's illness, last-minute efforts must be made to correct the situation. I venture to suggest that if what I have just summarised had been placed before the court openly, clearly and concisely, the difficulties that were confronted today, including the lengthy cross-examination of Mr Wooley, would not have been necessary. 20 The question that I have considered initially was twofold: that is, the receipt of the second report that had been compiled by Mr Elliott, and separately the receipt of his genealogical charts. The second problem has disappeared as a result of a compromise between counsel that was reached during the course of submissions. 21 I am able to make an order that exhibit A57, Mr Elliott's genealogical charts, be not received as an exhibit in the trial. I note that this order has been made upon the premise that an offer was made by Mr Whitington QC, supported by Mr Besanko QC, and accepted by Mr Howie. The offer is to this effect: if by virtue of her illness, Ms Woenne-Green is unable to give evidence, her genealogical reports will, on the application of the applicants, be received into evidence without objection from the respondents. 22 There remains then for me to come to a decision about the application to tender Mr Elliott's second report. As to this I refer to the decision of the High Court in the State of Queensland v JL Holdings Pty Ltd (1996) 141 ALR 353 ("JL Holdings"). JL Holdings had sued the State of Queensland alleging that a State minister had wrongly refused to endorse his approval of a lease of crown land from the Brisbane City Council to the company. The State sought to make an amendment of substance to its defence. The application was made before trial and in fact, as events transpired, it was made about some six months before trial. 23 The trial judge refused to grant leave to amend the defence, noting that the trial had been listed to commence in six months' time and expressing concern that the amendment might jeopardise the hearing date. The State was granted leave to appeal to the Full Court of the Federal Court, and by a majority of two to one the Full Court dismissed the appeal. Special leave was sought and obtained to appeal to the High Court, and a court of four unanimously allowed the appeal. In the joint judgment of Dawson, Gaudron and McHugh JJ at page 357, their Honours had this to say: "Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." 24 Their Honours were of the view that the position of JL Holdings could be protected with a costs order and, if appropriate, an adjournment and they saw those two orders as the panacea to cover the particular application that had been made in that case. I will return to the question of costs at a later stage of these reasons. But in this particular case, there has already been accommodation given to the respondents in the form of an adjournment of some two days. 25 Kirby J in JL Holdings wrote a separate judgment, but he came to the same conclusion that the appeal should be allowed. At page 367 he commenced a summary of seven relevant issues that he offered for the resolution of this type of conflict. One of them has, in my opinion, particular relevance due to the uncertainty about Ms Woenne-Green's state of health and the likelihood that she might not be able to give evidence. His Honour said at pages 368-9: "Among considerations which may tend to favour the extension … [is] that this is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided." 26 Later, at page 369, his Honour added that costs orders, or the imposition of other conditions, could adequately rebalance the competing claims to justice. The facts in the present case are far more severe than those in JL Holdings. In that case the application was one to amend a pleading made some six months before trial date. Here, there is an application to file and serve a fresh anthropological report part-way during the course of the trial and after all Aboriginal witnesses have concluded their evidence. 27 It is common ground that there can be no question of the court returning to Marla to take further evidence from the Aboriginal witnesses, and it is also common ground that there can be no question of bringing the Aboriginal witnesses to Adelaide. They are, for the most part, elderly, frail, and totally out of their environment in a city. The opportunity to distinguish the decision in JL Holdings is, I must say, inviting. However, having reflected on the matter it would seem to me that if I were to reject the application to receive into evidence the second report of Mr Elliott it would be the applicants whom I would be punishing, when it is no fault of theirs. Fault is not the correct word, for it has been brought about by Ms Woenne-Green's illness but it has also been brought about by the tardiness of the applicants in presenting and explaining the reason for their application. It is all very clear now but it did not become clear until today. 28 So my preferred course of action is to give the applicants the opportunity to present their case as they would wish, so long as I do not – by doing so – irretrievably prejudice the respondents. I do not apprehend, from what I have heard, that such irretrievable prejudice would occur. Leave is granted to the applicants to file and serve nunc pro tunc the second report of Mr Elliott, presently identified as MFI A60. It will be received into evidence as exhibit A60. 29 The question of costs will be reserved. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 13 September 2001 Counsel for the Applicant: Mr R Howie SC with Mr A Collett Solicitor for the Applicant: Mr T Wooley (Aboriginal Legal Rights Movement) Counsel for the first Respondent: Mr A Besanko QC with Ms G Brown Solicitor for the first Respondent: The Crown Solicitor for the State of South Australia Counsel for the second Respondent: Mr R Whitington QC with Mr C Goodall Solicitor for the second Respondent: Mrs R Craddock Date of Hearing: 13 September 2001 Date of Judgment: 13 September 2001