Neowarra v State of Western Australia [2003] FCA 1401

FEDERAL COURT OF AUSTRALIA

Neowarra v State of Western Australia [2003] FCA 1401 PADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS

WAG 6016 OF 1996

WAG 6015 OF 1999 WAG 6006 OF 2002 SUNDBERG J 8 DECEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6016 OF 1996 WAG 6015 OF 1999

WAG 6006 OF 2002

BETWEEN: PADDY NEOWARRA, PADDY WAMA & OTHERS

APPLICANT

AND: THE STATE OF WESTERN AUSTRALIA & OTHERS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 8 DECEMBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT the applicants have leave further to amend their Amended Statement of Issues, Facts and Contentions in the manner appearing in the Amended Statement of Issues, Facts and Contentions dated 5 February 2003 with the modifications listed in paragraph 19 of the Reasons for Judgment herein. 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 6016 OF 1996

WAG 6015 OF 1999

WAG 6006 OF 2002

BETWEEN: PADDY NEOWARRA, PADDY WAMA & OTHERS

APPLICANT

AND: THE STATE OF WESTERN AUSTRALIA & OTHERS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 8 DECEMBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By notice of motion filed on 28 January 2003 the applicants seek leave to amend their Statement of Issues, Facts and Contentions so that it will assume the form of the Amended Statement of Issues, Facts and Contentions dated 5 February 2003. Other relief was sought, which was granted on 3 and 4 February 2003 when the motion was heard. 2 The evidence in the case concluded on 7 June 2002. The hearing was then adjourned to 3 February 2003 for closing submissions to be made between then and 6 February 2003. On the resumption of the hearing the application to amend was heard. After extensive argument many of the amendments were not opposed by the respondents. This ruling deals with those that were opposed. 3 First, the applicants seek to amend paragraph 22, which contains a list of facts said to support the contention in paragraph 21 that the laws acknowledged and the customs observed by the claimants are traditional. The amendment would add to a list of particulars of what they call their distinctive, shared body of beliefs, social and cultural traits and affinities that bind them together and differentiate them from neighbouring regions, particular (e)(ix) – the existence of "a distinctive form of marriage called patrilateral cross cousin marriage". This amendment was opposed on the ground, using the words of counsel for the Group 2A respondents: "Quite frankly I don't know what a patri‑lateral cross cousin marriage is. If I had known about it, I may have asked some questions about it. It's a little difficult to see that something that we simply can't understand at this stage can be inserted."