FEDERAL COURT OF AUSTRALIA Wilkes v State of Western Australia [2002] FCA 1416 NATIVE TITLE – PRACTICE & PROCEDURE – application to vacate trial dates and amend directions – whether any useful purpose in imposing pre-trial directions – whether any useful purpose in vacating trial dates. RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS, ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY, WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY, GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY AND CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS V STATE OF WESTERN AUSTRALIA AND ORS NO. WAG 142 OF 1998 NO. WAG 141 OF 1998 NO. WAG 137 OF 1998 NO. WAG 138 OF 1998 NO. WAG 139 OF 1998 NO. WAG 140 OF 1998 NO. WAG 149 OF 1998 BEAUMONT J 5 NOVEMBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND ORS RESPONDENTS JUDGE: BEAUMONT J DATE OF ORDER: 5 NOVEMBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The orders made on 7 June 2002 be vacated with the exception of orders 14, 15, 18 (as amended to refer to 4 March 2003 rather than to 3 March 2003), 20 and 21 to 25 inclusive. 2. The matter be listed for directions on 14 February 2003. 3. Otherwise, the notice of motion be dismissed. 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 WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND ORS RESPONDENT JUDGE: BEAUMONT J DATE: 5 NOVEMBER 2002 PLACE: PERTH REASONS FOR JUDGMENT (ON NOTICE OF MOTION TO VACATE TRIAL DATES AND AMEND DIRECTIONS) BEAUMONT J: 1 Before the Court is a notice of motion, dated 31 October 2002, filed on behalf of the South West Aboriginal Land and Sea Council Aboriginal Corporation seeking three orders as follows: "1. The trial hearing dates fixed to commence on 3 March 2003 be vacated, 2. The dates for the filing of documents in the orders of Justice Beaumont made on 7 June 2002 be set aside, and 3. The application be adjourned generally to a date to be fixed." 2 The motion is supported by an affidavit of Christine Angela Cooper, also sworn on 31 October 2002. In essence, the application is based upon similar grounds to those outlined in the affidavits of Darryl Drew Pearce, sworn 5 February 2002 and 7 March 2002, explaining the ongoing difficulties of the representative body, first of all, in relation to its status and, secondly, in relation to the assessment of applications for assistance received from native title claimant groups. 3 The earlier history of this litigation was summarised by me in reasons for judgment, dated 8 March 2002 (see [2002] FCA 222), and need not be repeated, save to mention that, in 1999 the present application was fixed for hearing in September 2001; that in March 2001, upon the application of the Noongar Land Council, that hearing date was vacated and fresh trial dates in March of 2002 were fixed; and that in December 2001, again upon the application of the Noongar Land Council, the hearing for March 2002 was vacated and a fresh hearing to commence on 4 June 2002 was fixed. 4 For the reasons I gave on 8 March 2002, I vacated the trial dates fixed to commence on 4 June 2002, but directed, amongst other things, that the representative body file and serve a preliminary anthropological report by 4 June 2002. That was not done. However, upon the matter being restored to the list before me in June 2002, orders were made by me, by consent, in that month which, in addition to giving a series of pre-trial management directions, fixed the trial of the matter to commence in March 2003. It is in that context that the present application to vacate that trial date is made. 5 The matter has been argued before me by Mr Hershowitz, who has put everything that could have been put on behalf of the applicants. It did, however, emerge, during the course of argument, that there did not appear to be any evidence upon which I could rely which would give the Court any feeling of confidence that, if the trial date were to be vacated and heard instead in December 2003 (as the applicants suggested) the matter would proceed in accordance with a timetable which, at least so far as the applicants were concerned, would be adhered to. 6 Mr Pearce's affidavit evidence has explained that there are a number of governance and other difficulties confronting the representative body. Regrettably, it does not appear that the resolution of those difficulties has progressed in the nine months that have elapsed since his affidavit was sworn on 5 February this year. In all those circumstances, I have come to the view (taking into account also the fact that Mr Bodney has pursued and diligently prepared his own application fixed for hearing in March 2003 also), that there is no useful purpose to be achieved by imposing upon the applicants any further pre-trial directions. The only inference I can draw is that they are not able to comply with any such directions. 7 I do not seek, and it is not appropriate that I do seek, to explore in any detail the reasons for that inability to comply with any directions, but the matters explained in Mr Pearce's earlier affidavit certainly suggest that unless the governance issues are resolved quickly (and there is no apparent prospect of that) there will be no realistic chance of the applicants progressing this matter in accordance with the orthodox pre-trial management procedures that this Court has, to this point, always adopted in these matters. 8 That being so, it seems to me that I have really no choice but to dispense with the ordinary pre-trial management processes so far as all parties are concerned. I propose to do that. However, as a corollary to that decision, I have also come to the view that, along with Mr Bodney's claim (fixed, as I said, to commence hearing on 4 March 2003), I should at the same time hear the applicants' connection evidence, including their genealogical evidence. I will hear that evidence at this time. 9 I will, however, also list the matter for mention at a date about three weeks before the trial is to commence, so as to ensure that any preparatory steps that may be required or are necessary can be the subject of submission at that time. Orders 10 I make these orders: 1. Vacate the orders made on 7 June 2002 with the exception of orders 14, 15, 18 (as amended to refer to 4 March 2003 rather than to 3 March 2003), 20 and 21 to 25 inclusive. 2. Matter listed for directions on 14 February 2003. 3. Otherwise dismiss the notice of motion. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 20 November 2002 Mr Bodney appeared in person Solicitor for the Bodney Applicants: Counsel for the State of Western Australia: Mr S Wright Solicitor for the State of Western Australia: Crown Solicitors Office, Western Australia Counsel for Commonwealth of Australia: Ms R Webb Solicitor for Commonwealth of Australia: Australian Government Solicitor Counsel for various local government bodies and some mining interests: Ms A Vivian Solicitor for various local government bodies and some mining interests: Minter Ellison Counsel for WAFIC: Mr M McKenna Solicitor for WAFIC: Hunt & Humphry Counsel for Group 15 in WAG 142/98 and Group 12 in WAG 149/98: Ms H Kurz Solicitor for Group 15 in WAG 142/98 and Group 12 in WAG 149/98: Freehills Counsel for Roman Catholic Archbishop of Perth: Mr D Thompson Solicitor for Roman Catholic Archbishop of Perth: Phillips Fox Counsel for Town of Bassendean & others (various local government bodies): Mr P Wittkuhn Solicitor for Town of Bassendean & others (various local government bodies): McLeods Counsel for South West Aboriginal Land & Sea Corporation: Mr A Hershowitz Solicitor for South West Aboriginal Land & Sea Corporation: SWAL&SCAC Date of Hearing: 5 November 2002 Date of Judgment: 5 November 2002