FEDERAL COURT OF AUSTRALIA De Rose v The State of SA (No 3) [2001] FCA 1615 PRACTICE AND PROCEDURE – party seeking to tender part of expert's doctoral thesis and lead evidence regarding it – document discovered to other parties well into trial and outside timetable ordered by the Court for the exchange of experts' reports – consideration whether or not to allow material to be admitted into evidence and further oral evidence led from the witness on that document De Rose v State of South Australia and Others (No 2) [2001] FCA 1614 distinguished State of Queensland v JL Holdings (1996) 141 ALR 353 followed PETER DE ROSE AND OTHERS v THE STATE OF SOUTH AUSTRALIA AND OTHERS (NO 3) NO SG 6001 OF 1996 O'LOUGHLIN J 12 OCTOBER 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: 12 OCTOBER 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application by the applicants to tender selected pages from the doctoral thesis of Dr John Willis be refused. 2. 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: 12 OCTOBER 2001 PLACE: ADELAIDE EX TEMPORE REASONS FOR RULING 1 The applicants in the substantive proceeding seek to tender sixty-two pages of the doctoral thesis of Dr Willis, an anthropologist. By notice of motion dated 10 October 2001, the second respondents in these proceedings ("the Fullers") have served notice that they will be opposing that application to tender. 2 The Fullers sought the following orders on their notice of motion: (i) That the applicants not be entitled to tender at the trial, any part of Dr Willis' doctoral thesis served on the respondents on or about 10 September 2001. (ii) That the applicants not be permitted to lead any oral evidence from Dr Willis outside the topics of his report dated 21 November 2000 or otherwise contravening the orders of the Court of 10 August 2000 or 23 April 2001 regarding the filing and serving of experts' reports. (iii) In the alternative to (i) or (ii), that the applicants not be entitled to tender any part of the doctoral thesis of Dr Willis or lead oral evidence, as outlined, in (ii) above unless they obtained an order of the Court varying the previous orders of the Court of 10 August 2000 and 23 April 2001 by filing a notice of motion and supporting affidavits in support of the varying orders sought. 3 The orders that were sought by the Fullers have been supported by the affidavit of their solicitor, Mrs Rosemary Craddock, which affidavit was sworn on 9 October 2001. They were also supported by the affidavit of Mr Peter Tonkin, a solicitor in the Crown Solicitor's Office who has the conduct of the matter on behalf of the first respondent, the State of South Australia. 4 The applicants in the substantive proceedings have filed affidavits in opposition to the orders sought. They are the affidavits of Mr Timothy Wooley, a solicitor in the employ of the Aboriginal Legal Rights Movement and the solicitor having the conduct of the matter on behalf of the applicants. They have also filed the affidavit of Dr Willis dated 11 October 2001. 5 To appreciate the issues that have surfaced as a result of this notice of motion, it is necessary to make a brief excursus into the history of the matter. I start, as a matter of convenience, with orders that were made by this court on 10 August 2000. 6 Order 3 of 10 August 2000 reads as follows: "The applicants do file and serve expert reports by 24 November 2000, with the exception of the report of Mr Elliott, which shall be filed and served by 22 December 2000." 7 Also of relevance in this instance is Order 6 of 10 August 2000: "Upon request by any party, any other party shall, within 14 days of such request, allow the requesting party to inspect and will provide, at the requesting party's expense, copies of such documents referred to in the other party's expert reports which are unpublished or otherwise not reasonably accessible by the requesting party's experts as are requested." 8 Other material that should be mentioned includes Dr Willis' report, which is presently identified as MFI A10 in the substantive proceedings and Ex R1 in the proceedings on the notice of motion. Pursuant to the orders of 10 August 2000, a timetable was laid out by the court for the filing of expert reports by all parties. In so far as it related to Dr Willis' report, those orders required his report to be filed by 24 November 2000. In fact, it was filed on 29 November, but no point has been taken with respect to the fact that it was filed five days late. 9 Mr Howie SC, senior counsel for the applicants, has said, as part of his submissions, that the sixty-two pages, constituting the extracts from the doctoral thesis, are not a report, and are thus not covered by the contents of the orders of the court of 10 August 2000. Supporting that submission, he draws attention to the fact that the applicants did not retain Dr Willis to write his doctoral thesis; that was a matter that was wholly independent of the applicants and their legal advisers. 10 I reject that submission. In my opinion, it overlooks the purpose of the orders of 10 August 2000. That purpose is a clearly defined purpose, bolstered by a practice direction of this court as revised on 31 May 2001. The intended purpose of the orders, as well as the intended purpose of the practice direction, is to make sure that the parties to the litigation – and I emphasise "all parties to the litigation" – are fully apprised at any early stage of the nature and the detail of the expert evidence and material that another party will or might seek to adduce at trial. If a party intends to rely on the advice and knowledge of an expert at trial, that party is required to give a copy of the written material, called for convenience "a report", to his, her or their opponents. To suggest that a party could circumvent such an order and such a purpose by receiving the expert's material in the form of a letter or a thesis is plainly untenable. 11 Much the same sort of argument was earlier advanced by the applicants and clearly rejected by this court when the court had to consider the application by the applicants to file and serve a second or supplementary report of Mr Craig Elliott together with his genealogies: De Rose v State of South Australia and Others (No 2) [2001] FCA. I refer generally to par [20] of that judgment. I regard the material that is contained in the sixty-two pages as material which was directly covered by the orders of the court of 10 August 2000 and the Court's practice direction. 12 Dr Willis' report – MFI A10, Ex R1 – did not rely on the contents of his thesis. He did no more than refer to it in his report as part of his curriculum vitae. Nevertheless, both respondents sought copies of the thesis in March 2001. I accept the arguments of the respondents that they were entitled to make that request for the purpose of determining whether there was material in the thesis which would or might lead to lines of cross-examination. 13 The first request for the supply of the doctoral thesis was made by the first respondent by letter dated 9 March 2001. The thesis was not forthcoming. There was another request made by the first respondent on 22 August 2001. Pursuant to Order 6 of the Court's orders of 10 August 2000, that request should have been the subject of compliance within fourteen days. However, it was not until either 10 or 11 September 2001 that copies of the thesis were distributed to the two respondents, and at that stage there was no suggestion that the applicants would be seeking to tender the thesis, or any part or parts of it. I find that, ostensibly and inferentially the copies of the thesis were supplied to the respondents only because the respondents had requested copies of the thesis. 14 The applicants seek to tender the extracts from the thesis because, so they claim, they contain material that is relevant to the issues that are required to be determined in this trial. Mr Howie during the course of his submissions drew attention to six examples. Subject to rights of objection that the respondents might have, I would be prepared to accept, for the purposes of these reasons, that the subject matters to which Mr Howie directed the court's attention, were subject matters which relate to issues that are relevant to the issues in this trial. 15 That does not however, without more, justify the receipt of the tender. Why is it that the respondents were not advised of an intention to tender until 9 October 2001, the day preceding the day when Dr Willis was due to give evidence? That question has not been answered to my satisfaction. Mr Howie submitted that a fair reading of the affidavit material would make it clear that it was, to use his words, "in our mind". He drew attention to the Ex TJW4 to Mr Wooley's affidavit. Exhibit TJW4 is a copy of a draft order that was circulated by the applicants to the respondents and to the court, setting out a detailed program concerning the circumstances under which copies of Dr Willis' doctoral thesis might be distributed. I see nothing in that material which connotes any suggestion that there would be an application on the part of the applicants to tender any part of the thesis. Mr Wooley in his affidavit at par 7 said this: "I am advised by Mr Howie and believe that after he had read Dr Willis' thesis in late August 2001 he appreciated that it contained information relevant to the Applicants' case." That statement is somewhat at odds with submissions made by Mr Howie at p 3266 of the transcript where he said, on 10 October 2001: "In the course of last week, I myself read the thesis with some greater care and, as a consequence of that, I advised my instructor that we should be seeking to tender some portions of it which, as I read it, were relevant to the issues that are before your Honour." 16 In cross-examination Mr Wooley said that he read the extracts and that he had "flicked" through the balance of the thesis during 26 and 27 August. At p 3331 of the transcript, in answer to questions from Mr Whitington, he said: "Having looked at the contents page, I realised at a very sort of cursory glance that there was a whole range of matters that were highly relevant and significant to the case, so I did have an appreciation of what it contained and I had been told by counsel that there were matters of relevance and merely looking at the contents page confirmed that." I then asked a question. I said: "Did counsel tell you that before or after you looked at the contents page?" Mr Wooley replied: "Counsel advised me – I believe that it was on 26 August, your Honour, we had a conference with counsel in Adelaide." 17 I find therefore, based on the evidence of Mr Wooley, that it was known to him and to counsel advising him as early as 26 or 27 August 2001 that the contents of Dr Willis' thesis contained a range of matters that were highly relevant and significant to the case. 18 Other cross-examination of Mr Wooley established to my satisfaction that he had a prior and detailed knowledge of Dr Willis and Dr Willis' abilities and expertise. Indeed, Mr Wooley acknowledged that as early as 1994 or 1995 he had sought to retain Dr Willis to do the field work necessary for anthropological expertise and advice in this matter. However, Dr Willis was not then available to do that type of work. Nevertheless, I find that Mr Wooley knew in August 2000, at the time when the order of the court was made for the exchange of experts' reports, that Mr Willis could have addressed the areas of knowledge and expertise that are contained in the sixty-two pages of the doctoral thesis. 19 I also find that Mr Wooley knew in 1995 that Dr Willis possessed qualifications which would have enabled him to prepare a much more detailed report. Mr Wooley knew that Dr Willis was a qualified anthropologist. Mr Wooley knew that Dr Willis had worked in the area of the claimed land and, finally, Mr Wooley knew that Dr Willis was an initiated man. All of this, in my opinion, leads to a conclusion which indicates that Dr Willis and his abilities were well known to the applicants. This is not a case where the applicants have acquired recent knowledge. 20 I turn momentarily to the circumstances of Dr Willis, who gave evidence on the hearing of the application for the orders that had been sought in the notice of motion. He made it clear that he was very sensitive, and I accept his sensitivity, about the subject matters of his doctoral thesis. I also accept that that sensitivity was a cause in the delay on the part of the applicants in making copies of the thesis available. 21 Dr Willis wrote to Mr Howie on 22 August 2001 in these terms: "May I restate my extreme discomfort with the idea of copies of the thesis being distributed, and remind you of your undertaking to seek orders that would ensure that, if it proves to be of relevance to the De Rose Hill matter, it would only be seen by men, and particularly only by the judge and senior barristers representing the parties to this matter. I have made solemn undertakings to my informants that sections of this thesis would never be seen by women, and there are sections of it that have only previously been read by the three male examiners." 22 But from late August, senior counsel nevertheless knew that the thesis contained information relevant to the applicants' case; yet there has been an unexplained delay of almost six weeks before the respondents were notified of the applicants' intention to apply to tender those pages. 23 Recognising the sensitivity of the subject, and giving the benefit of doubts on this subject to the applicants, I will assess the applicants' conduct not from 10 August 2000, but, rather, from late August 2001 when, according to Mr Wooley's evidence, the advisers for the applicants first became aware of the significance of the material in Dr Willis' doctoral thesis. From that base, I express the view, without reservation, that within a few days of 26 or 27 August 2001 the applicants were duty-bound to have informed the respondents that there was a possibility that they would be applying to the court to tender the thesis or a part or parts of that thesis. 24 If I am wrong, if I am imposing too harsh a duty on the applicants, then I say without reservation that by 13 September 2001 there should have been no doubt in their mind about their need to inform the respondents of their intentions. 13 September 2001 is a date of significance, because this application follows not long after the applicants had applied for leave to file and serve a supplementary report of Mr Elliott. On 13 September 2001, at which point of time senior counsel would have known for about two weeks that the thesis contained information relevant to the issues in this trial, I said at page 2513: (now par [9] of the judgment De Rose v State of SA and Others (No 2) [2001] FCA 1614): "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." 25 Sadly, I must observe that the applicants' advisers have not heeded that observation. 26 In the case of Mr Elliott I did grant leave to file the supplementary report. I did so for two identified reasons. The first was that Ms Woenne-Green who, as it seems to me, was the primary anthropological adviser to the applicants, had taken ill and had been so ill as to be unable to give evidence. This was a critical situation for the applicants, calling for desperate measures to remedy her absence, and fair play and reasonability justified their application to have Mr Elliott's report supplemented by a second or supplementary report. The absence of Ms Woenne-Green has not been raised in these particular proceedings. 27 In the course of considering whether to grant leave for Mr Elliott's second report to be received, I addressed the decision of the High Court in the State of Queensland v JL Holdings (1996) 141 ALR 353. 28 Specifically, I said at par [27] of my reasons: "Their Honours were of the view that the position of the company in 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." 29 When considering the particular circumstances of the application to tender Mr Elliott's supplementary report I concluded, not without some misgivings, that justice would best be served by allowing the report to be admitted into evidence, saying at pars 30‑31: "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 who I would be punishing, when it is no fault of theirs. Fault is not the correct word, but it has been brought about by Ms Woenne-Green's illness and then it has 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. 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." 30 The second reason why I granted leave in the case of Mr Elliott was because of a concession that was made by the respondents through Mr Whitington that he could not point to irremediable prejudice in the event of the report of Mr Elliott being received. I will return to that subject later. 31 I turn first to a letter that Mr Tonkin wrote on 9 October 2001 to the Aboriginal Legal Rights Movement, which is exhibited to his affidavit. The relevant extract from the letter is as follows: "The extract referred to by you relate to a large number of topics not raised in Dr Willis' report." 32 Further on he says: "The matters in the pages referred to by you raise several topics which would have formed the basis of cross-examination of both Aboriginal and expert witnesses had proper notice been given of them." 33 Those assertions were not particularised by Mr Tonkin either in his affidavit or by oral evidence but, on the other hand, they were not explored in cross-examination. Mr Tonkin was available to be cross-examined. 34 Mr Whitington in his submissions emphasised the two factors of Ms Woenne-Green's illness and the question of prejudice. On the issue of prejudice I considered overnight the contents of Dr Willis' report as against the sixty-two pages of material from his thesis. I wish it to be known that I have formed no concluded opinion on the issues that were identified by Mr Tonkin in his letter. Time has just not been sufficient to do that. 35 I do, however, consider that I am entitled to note and to act upon the observations and the submissions of counsel of a personal nature when I am told that the contents of the doctoral thesis which are the subject of the tender would, or might, have been the subject of cross-examination of Aboriginal witnesses and other expert witnesses. It is clear, and I do not think that it is necessary for me to descend into detail, that it is wholly and totally impractical to consider the reconvening of the Court, or the recalling of witnesses, especially the Aboriginal witnesses who in my earlier reasons I described as elderly, frail and totally unused to urban environments. 36 It is not sufficient in my opinion for the applicants to assert, as they have asserted, that the respondents had the extracts from 10 or 11 September 2001. There is a difference between being supplied with a copy of a document because one has requested the copy, and being told that the document would be the subject of tender. There must come a time when the court must insist that proper regard be had to the orders of the Court, and that proper regard be had to issues of fair play and cooperation. If the court were to stand aside, it would be nothing more than a toothless tiger. 37 There will always be the opportunity for a party to approach the Court and, for cause shown, to seek a variation of procedural orders as to the filing and serving of reports, but it behoves the applicant party to offer some reasonable explanation to the court. One likes to think that courts are aware of the pressures under which legal advisers work in the preparation and prosecution of complex litigation, of which this is an example. The courts would like to think that they will accommodate the circumstances and the difficulties that legal practitioners encounter unexpectedly from time to time. But in return, the court expect cooperation, and in my opinion it is necessary for an applicant party to show that it has done all that is reasonable in the circumstances to accommodate the other parties to the litigation. In view of the remarks that I made on 13 September 2001 the applicant should have been made aware, with no doubts whatsoever, and should have moved with expedition within a few days of that date. 38 I mention one last matter, only for the sake of clarity, as it is not a matter that has been raised during the course of submissions. Before argument started on the subject of the orders sought and the notice of motion, Mr Howie, in addressing the subject matter at large, drew attention to remarks that I had made at an early stage of the proceedings at p 320 of the transcript. Those remarks arose as a result of an objection by Mr Whitington during the course of the examination-in-chief of Michael Mitikiki. 39 Without descending into detail, Mr Whitington's objection was that Mr Collett, counsel for the applicants at that stage, was endeavouring to lead oral evidence-in-chief over and beyond the scope of the contents of Mr Mitikiki's witness statement. I then said, and I do not resile from what I have said, "If counsel want to lead the evidence from whoa to go, as if there were not witness statements, I will permit it. That will apply with every witness who is called both for the applicants and the respondents". Those remarks were made with respect to the evidence of an Aboriginal person – that is the first point I wish to make – a layperson – that is the second point I wish to make – but not an expert witness – that is the third point I wish to make. 40 I draw attention once more to the practice direction of the Court. I acknowledge that it does not contain information, detail or directions that squarely covers the issue that is presently before me, but it does contain other directions which, by analogy, can be incorporated into today's issue. For example, the direction says that: "If, after the exchange of reports, or at any other stage, an expert witness changes his or her view on a material matter, having read another expert's report or for any other reason, the change of view should be communicated in writing through legal representatives without delay to each party to whom the expert witness's report has been provided and, where appropriate, to the court." Then again it says: "If an expert's opinion is not fully researched because the expert considers that insufficient data is available, or for any other reason, this must be stated with an indication that the opinion is no more than a provisional one. Where an expert witness sho has prepared a report believes that it may be incomplete or inaccurate, without some qualification, that qualification must be stated in the report." 41 The whole purpose of the practice direction is for the exchange openly, and without qualification, of the information, the material, the detail and the intended evidence that the expert intends to adduce at trial. It is anathema to the whole concept of the practice direction to drop on an opposition party, on the day preceding the day upon which the expert is to give evidence, sixty-two pages of additional material. For those reasons I have come to the conclusion that neither the sixty-two pages, nor oral evidence addressing the contents of any of those pages, will be accepted into evidence. 42 The question of costs is reserved. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 12 October 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: 12 October 2001 Date of Judgment: 12 October 2001