Bullen v State of Western Australia [2002] FCA 992

FEDERAL COURT OF AUSTRALIA

Bullen v State of Western Australia

[2002] FCA 992

MALCOLM JOHN BULLEN & ANOTHER, PATRICIA MORICH & OTHERS, ARTHUR DIMER & OTHERS and CEDRIC ANDERSON & OTHERS v STATE OF WESTERN AUSTRALIA & OTHERS WAG 6097 and part of 6130, 6221 and 6181 of 1998 GYLES J CANBERRA 8 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY WAG 6097 and part of

6130, 6221 and

6181 of 1998

BETWEEN: MALCOLM JOHN BULLEN & ANOTHER

FIRST APPLICANTS

PATRICIA MORICH & OTHERS

SECOND APPLICANTS

ARTHUR DIMER & OTHERS

THIRD APPLICANTS

CEDRIC ANDERSON & OTHERS

FOURTH APPLICANTS

AND: STATE OF WESTERN AUSTRALIA & OTHERS

RESPONDENTS

JUDGE: GYLES J

DATE: 8 AUGUST 2002

PLACE: CANBERRA

REASONS FOR RULING 1 On 24 July 2002 I vacated dates which had been fixed for the hearing of these matters in February and March 2003, but left for later debate what other alterations there should be to the existing directions. I indicated that I would publish some short reasons for my decision in due course. These are those reasons. They do not set out to be a complete statement of the history of the matter, or a comprehensive statement of all of the arguments which were put and considered. 2 The application to vacate the dates and to otherwise significantly alter the timetable for preparation of the case was advanced on behalf of both the first and third applicants and the first respondent, the State of Western Australia. The second applicants were not represented on this occasion, but had indicated general support, or at least acquiescence, on a previous occasion. There are problems concerning the representation of the fourth applicants and probably the most that can be said is that there is no opposition to the application on behalf of the fourth applicants. The application was opposed by the following respondents – the Commonwealth of Australia, the Western Australian Fishing Industry Council ("WAFIC") and BP Australia Limited. 3 The substance of the application was based upon the interplay between a lack of resources available to the applicants and the desirability of the opportunity for a meaningful mediation under the auspices of the Native Title Tribunal. It was put that much had changed in relation to both these aspects since the timetable was fixed. 4 The case had originally been seen as a South-West claim. Since then, the Goldfields Land and Sea Council ("GLSC") has assumed responsibility for representing the first and third applicants by virtue of administrative arrangements over which the Court has no control. The GLSC also represents claimants involved in a number of other cases in what might be called the goldfields region. In particular, it is involved in the Wongatha claim presently being heard by Lindgren J. The hearing of that case has blown out beyond estimates, and will proceed into next year. It is put that the Wongatha claim is consuming both money and manpower such that it is not possible for the GLSC to properly attend to the preparation of other matters for hearing, particularly as there are a number of them, and when all are being concurrently mediated. 5 It has been submitted by the opposing respondents that the evidence on this point is at a very general level and has not descended to any detail which can be analysed or assessed by the Court. This is true. I do, however, accept that there would be great difficulty in running a number of these cases concurrently. In this connection I note that other judges were persuaded at the recent Goldfields Regional Conference to abandon timetables in other cases because of, amongst other things, the impact of Wongatha, although that Conference was fixed for a date and time without regard to my availability. The opposing respondents make at least two points about this. The first is that the virtual abandonment of the hearing dates and active preparation for the other cases should leave the GLSC in a position where it can prepare this case. The second is that there is no geographic or anthropological link between this claim and the Goldfields claims, and the proper progress of this claim should not be affected by issues which relate to the goldfields region. 6 It is accepted by all parties that mediation of native title claims is to be encouraged. It is argued that pursuit of this litigation in accordance with the timetable will be contrary to that objective. The opposing respondents, however, submit that mediation is not an end in itself and does not override the statutory curial process for dealing with claims. The present claims have, on the face of it, been in mediation since 1997, but there has been no active step towards mediation of the claims taken. Such activity as there has been has been at a general and regional level, although it has dealt in part with overlapping claims. 7 This lack of progress has been attributed by those making this application to the negative attitude towards mediation of the former government of Western Australia, and it is said that the current policy of the government in favour of mediation will mean that progress will occur. I am somewhat wary of such an obviously political contention. The opposing respondents also point out that the change of government took place some time ago, but has led to nothing concrete in relation to this matter. There is said to be a protocol being developed for mediation in matters such as this. I do not have details about that. The opposing respondents say that they have not been involved in developing the protocol and have no faith that it, or the processes it envisages, will lead to any practical result. It is also put that there is no necessary inconsistency between mediation, on the one hand, and a trial date as far ahead as next March, on the other. It is submitted that the discipline of a hearing would bring focus to the mediation and that the preparation for trial would assist in producing details of the case for the applicants which will be necessary for any realistic mediation to take place. 8 I have already adverted to the fact that there are issues concerning the representation of the fourth applicant which have not been resolved and which will be an impediment to preparation of that claim. This does not mean that those issues cannot be resolved and those parties put in a position to be ready for the trial, even if it means some reorganisation of the timetable. I gather that the problem of representation in the South-West area is not limited to this claim. 9 With some misgivings, it seemed to me that the combined effect of these factors was sufficient to warrant vacating the hearing dates. However, I indicated that I was not prepared to agree to the other radical revisions to the timetable which were proposed by the State of Western Australia and the first and third applicants without further consideration. There is much force in the submissions on behalf of the opposing respondents in this respect. It does seem a rather remarkable result that instead of a number of carefully scheduled hearings of the Goldfields and South-West claims proceeding in a co-ordinated fashion all hearing dates apart from the continued hearing of Wongatha have been vacated and the preparation of all cases effectively put into limbo. I think there is particular force in the submission that there is no necessary inconsistency between the preparation for trial, on the one hand, and a mediation, on the other. It seems to me to be naďve to think that there can be effective mediation without a proper understanding of the basis of the claims and some real understanding as to the evidence which is available to support it. It is also accepted on all hands that it is very important to ensure that evidence is obtained from those who might not continue to be able to give that evidence if there is further delay. These questions are to be taken up at the next hearing. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.