FEDERAL COURT OF AUSTRALIA Jango v Northern Territory of Australia (No 3) [2004] FCA 1029 PRACTICE AND PROCEDURE – adjournment – compensation claim under the Native Title Act 1995 (Cth) – application to adjourn in order to overcome evidentiary objections to experts' reports JOHNNY JANGO & ORS v NORTHERN TERRITORY OF AUSTRALIA & ORS DG 6023 of 1998 SACKVILLE J MELBOURNE 9 AUGUST 2004 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 6023 of 1998 BETWEEN: JOHNNY JANGO AND OTHERS APPLICANTS AND: NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT GPT MANAGEMENT LIMITED SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: SACKVILLE J DATE: 9 AUGUST 2004 ORDERS MADE: MELBOURNE THE COURT ORDERS THAT: 1. For the purposes of these orders, the 'Applicants' Expert Reports' consist of any or all of the following: (a) the Anthropology Report by Dr Peter Sutton and Ms Petronella Vaarzon-Morel, including Chapter 8; (b) the Report of Dr Jon Willis, dated October 2003; and (c) the Supplementary Reports of Professor Peter Sutton and Ms Petronella Vaarzon-Morel (filed on 22 July 2004) and Dr Jon Willis (currently in draft form). 2. Subject to paragraphs 3-4 below, the Applicants have leave to file and serve further supplementary reports in response to the Respondents' Objections to the Applicants' Expert Reports ('the Further Reports') by 17 September 2004. 3. The Further Reports are to be limited to addressing those portions of the Applicants' Expert Reports: (a) which have been objected to by the First and/or Third Respondent; and (b) which the Applicants accept are inadmissible. 4. The Further Reports shall be limited to addressing the grounds of objections and shall identify the particular objections or objections that are addressed in each portion of the Further Reports. 5. Subject to any objections as to admissibility, any such Further Reports, together with the Applicants' Expert Reports, when adopted by the authors, shall stand as the evidence in chief of the authors of the reports who shall be presented for cross-examination. 6. On or before 17 September 2004, the Applicants shall also file and serve a bundle of those documents ('the first bundle') referred to in the said Applicants' Expert Reports which are identified in the Further Reports as providing the basis of an opinion or opinions, which bundle shall contain: (a) an index identifying each document contained therein with particularity by reference to its author, date and publisher, or, if unpublished, the source from which it was obtained; and (b) a statement identifying with particularity and by reference to the page and part of the page in the report: (i) the opinion in respect of which the document forms all or part of the basis; (ii) the part or parts of the document relied upon as providing the basis for the opinion; which statement shall also indicate whether those parts of the document form the sole basis for the opinion advanced, and if not, advise as to the other documents or other information relied upon as the basis of the opinion. 7. Save and except where the document in question is included in the bundle referred to in paragraphs 8 and 9 below, the first bundle of documents shall reproduce the whole of each document referred to in paragraph 6 hereof, save that, where the document exceeds 50 pages in length: (a) the bundle shall include: (i) so much of the document as is reasonably necessary to place the part or parts of the document relied upon in context; and, in any event, (ii) no less than the three (3) pages preceding and the three pages after that part or parts of the document in question; and (b) where the document is not readily available publicly, the Applicants will, at the time of serving the bundle of documents, make the document in question available for inspection by the respondents unless it is not reasonably feasible to do so, in which case the Applicants will make copies of the documents available to the Respondents. 8. On or before 17 September 2004 the Applicants shall file and serve a bundle of those documents ('the second bundle') referred to in the said Applicants' Expert Reports which they intend to tender, which bundle shall contain: (a) an index identifying each document contained therein with particularity by reference to its author, date and publisher, or, if unpublished, the source from which it was obtained; and (b) a statement identifying with particularity: (i) the part or parts of each document contained therein which will be relied upon; (ii) the purpose for which the evidence is being adduced; and (iii) the basis on which the evidence is being adduced. 9. Where the applicants are proposing to tender only part or parts of a document, the whole of the document shall be included in the second bundle of documents referred to above save that, where the document exceeds 50 pages in length: (a) the bundle shall include: (i) so much of the document as is reasonably necessary to place the part or parts of the document relied upon in context; and, in any event, (ii) no less than the three (3) pages preceding and the three pages after those part or parts of the document in question; and (b) where the document is not readily available publicly, the Applicants will, at the time of serving the bundle of documents, make the document in question available to the Respondents unless it is not reasonably feasible to do so, in which case the Applicants will make copies of the documents available to the Respondents. 10. On or before 24 October 2004 the Applicants shall file and serve draft final submissions which shall, without limiting the generality of the forgoing, address with particularity: (a) the membership and composition of the Native Title Claim Group; (b) the nature and extent of the native title rights and interests that have been extinguished; and (c) the date or dates on which each of those native title rights were extinguished in respect of various parts of the compensation area. 11. On or before 5 November 2004 the Respondents shall file and serve any objections to the Further Reports referred to in Order 2 above. 12. On or before 27 August 2004 the Respondents shall file and serve any objections to the Applicants' Historical Report. 13. Cross-examination of the Applicants' expert witnesses shall be adjourned to 22 November 2004 in Sydney. 14. The matter be listed for direction in Sydney at 9.30 am (Eastern Standard Time) on 28 October 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 6023 of 1998 BETWEEN: JOHNNY JANGO AND OTHERS APPLICANTS AND: NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT GPT MANAGEMENT LIMITED SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: SACKVILLE J DATE: 9 AUGUST 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants have applied to adjourn the hearing of a part-heard matter. The hearing was scheduled to commence today in Melbourne and five days have been set aside. The purpose of the hearing is to take oral evidence from the authors of two reports which the applicants have tendered in their case. The first report is entitled 'Yulara Anthropology Report' and has been prepared by Professor Peter Sutton and Ms Petronella Vaarzon-Morel. The second is a report by Dr Jon Willis, also an anthropologist. 2 The application for adjournment is not opposed by the active respondents to the proceedings, namely the Northern Territory and the Commonwealth. Nonetheless, it is appropriate to record the circumstances leading to the adjournment application. 3 The proceedings concern an application pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth) ('NTA') for a determination of compensation relating to land within the township of Yulara in the Northern Territory. So far there have been some 30 days of hearing, mostly in Yulara or on country near Yulara. 4 On 25 May 2004, I made directions concerning the two reports to which I have referred. The directions included provision for the respondents to file and serve objections to the reports and to any supplementary reports prepared by the same authors. The matter was set down for a hearing to commence in Melbourne on 9 August 2004, for five days, in order to take evidence from the authors of the two reports. 5 On 27 and 30 July 2004, argument took place concerning the very extensive objections made by the respondents to the admissibility of the two reports. In the course of the hearing on those days, Mr Parsons SC, on behalf of the applicants, conceded that many of the objections to admissibility were well-founded. Since the particular objections that had been discussed at the hearings were representative of many objections taken to the reports, it became clear that much of each report was not in admissible form. 6 On 3 August 2004, I published a written Ruling on Evidence: Jango v Northern Territory (No 2) [2004] FCA 1004. This summarised the reasons for rejecting the paragraphs of the reports that had been objected to. The Ruling also explained what I considered to be the fundamental deficiencies, from an evidentiary viewpoint, of the two reports. 7 At the hearing on 30 July 2004, there was discussion concerning the proposed hearing scheduled to commence on 9 August 2004. Mr Parsons stated that the applicants intended to work through the reports and to prepare additional documents which would address and, presumably, overcome the evidentiary objections made by the respondents. Mr Parsons indicated that he expected this task to be completed by Wednesday, 4 August 2004. Mr Parsons said this: 'So it is my fond hope and my expectation from a reading of [the] reports thus far, that…when the authors respond to the objections, they will…be responding to matters which are…opinions or materials within which opinions are contained. So the document will provide the objections, the authors' response to them, edited, if you will, by the lawyers to conform with the Evidence Act [1995 (Cth)] and an identification of the documents on which they rely with respect to those matters. Indeed, [the documents will provide] a reference to the reasoning process in so far as it is said not to be manifest within the body of the report. So in that sense, it will address all those things and equally the opinions relied upon will be addressed as well. So we do hope that the document will do nothing other than reorganise materials that our learned friends have had for 18 months… [S]o there won't be surprises, there won't be new material, it will simply be collated in a form which makes it accessible, the point of reference being the list of objections.' 8 The respondents expressed concern that, even if this program was adhered to, there might be difficulties in undertaking, or at least completing, the cross-examination during the five days of hearing scheduled to commence on 9 August 2004. Nonetheless, on the basis of what I had been told by Mr Parsons, and considering the desirability of adhering to the established timetable if possible, I considered that the appropriate course was to retain the scheduled hearing dates and to ask the respondents to conduct at the hearing as much of the cross-examination as was feasible in the circumstances. I particularly took into account that, according to the applicants, there would not be any 'surprises' and the respondents could safely prepare cross-examination in the expectation that no new material would be adduced. I was told that the authors of the reports would identify clearly their own opinions and would explain the basis for the expression of each opinion. 9 On Friday afternoon, 6 August 2004, I received notification from Mr Parsons that the applicants intended to apply for an adjournment of the hearing scheduled to commence on the following Monday, 9 August 2004. Mr Parsons did not seek a hearing of the adjournment application that afternoon, but foreshadowed an application to be heard in Melbourne today (Monday). A letter from Mr Parsons set out a number of tasks that the applicants considered it necessary to complete. He estimated that the various tasks would take 'at least a month'. The letter did not explain what had changed between 30 July and 6 August 2004. 10 When the matter was called on for hearing today, Mr Parsons made the foreshadowed application for adjournment. In substance, he said that the applicants' advisers had failed to appreciate the magnitude of the task facing them. Since the reports (as I noted in my earlier judgment) had not been prepared with close attention to the requirements of the Evidence Act 1995 (Cth), it was necessary for the applicants to reassess the contents of the reports. Mr Parsons indicated that it was not yet clear to the applicants whether fresh reports had to be prepared, or whether it was sufficient for the authors of the reports to address, seriatim, the particular objections made on behalf of the respondents. Mr Parsons repeated his estimate that this would take at least a month, but accepted that the task might take somewhat longer. 11 Given that the respondents do not oppose the adjournment, and taking into account that the applicants themselves cannot be held responsible for the deficiencies in the reports, I consider that I have no alternative but to grant an adjournment and to vacate the hearing scheduled for this week. 12 I also consider it appropriate, however, to record that the present state of affairs is extremely unsatisfactory. It comes about because of a failure on the part of the applicants' advisors to ensure that the reports, which are the product of a very great investment of time and resources, were prepared in accordance with the requirements of the Evidence Act. A contributing factor has been a failure to appreciate fully the extent of the remedial work required to ensure that any relevant opinions of the experts are expressed in admissible form. 13 The adjournment of the scheduled hearing inevitably wastes considerable time and resources, as well as creating inconvenience to the Court which has set aside a substantial block of time for the hearing. It may be that proceedings under the NTA frequently have unusual, if not unique, features. Nonetheless, it is critical for the parties' legal representatives in such proceedings to bear firmly in mind the requirements of the Evidence Act when preparing reports and written statements. It is also essential that careful attention be paid to ensuring that the resources devoted to the preparation of a case are used both effectively and efficiently. In particular, the task of gathering and, ultimately, adducing evidence in the proceedings, must be carried out paying close attention to the issues that, on the pleadings, the applicants must address to make out their claim. While experts are responsible for the expression of opinions within their field of special knowledge or expertise, the task of preparing relevant and admissible evidence cannot, in the normal course of events, be safely delegated to them without the intervention of appropriate legal knowledge and skills. 14 Ordinarily, an adjournment application in the circumstances I have outlined might be expected to attract an application for costs. Doubtless for reasons peculiar to litigation under the NTA, no such application has been made by either of the respondents. For this reason, I make no order in respect of the costs thrown away by the adjournment application. 15 The Commonwealth has prepared short minutes of order designed to ensure that the cross-examination of experts can take place in November 2004 and that the applicants make progress in the preparation of final submissions. Except in minor respects, the applicants did not dispute that the proposed directions are appropriate. Accordingly, subject to minor amendments, I made the directions sought by the Commonwealth. The directions are set out below. DIRECTIONS 1. For the purposes of these orders, the 'Applicants' Expert Reports' consist of any or all of the following: (a) the Anthropology Report by Dr Peter Sutton and Ms Petronella Vaarzon-Morel, including Chapter 8; (b) the Report of Dr Jon Willis, dated October 2003; and (c) the Supplementary Reports of Professor Peter Sutton and Ms Petronella Vaarzon-Morel (filed on 22 July 2004) and Dr Jon Willis (currently in draft form). 2. Subject to paragraphs 3 and 4 below, the Applicants have leave to file and serve further supplementary reports in response to the Respondents' Objections to the Applicants' Expert Reports ('the Further Reports') by 17 September 2004. 3. The Further Reports are to be limited to addressing those portions of the Applicants' Expert Reports: (a) which have been objected to by the First and/or Third Respondent; and (b) which the Applicants accept are inadmissible. 4. The Further Reports shall be limited to addressing the grounds of objections and shall identify the particular objections or objections that are addressed in each portion of the Further Reports. 5. Subject to any objections as to admissibility, any such Further Reports, together with the Applicants' Expert Reports, when adopted by the authors, shall stand as the evidence in chief of the authors of the reports who shall be presented for cross-examination. 6. On or before 17 September 2004, the Applicants shall also file and serve a bundle of those documents ('the first bundle') referred to in the said Applicants' Expert Reports which are identified in the Further Reports as providing the basis of an opinion or opinions, which bundle shall contain: (a) an index identifying each document contained therein with particularity by reference to its author, date and publisher, or, if unpublished, the source from which it was obtained; and (b) a statement identifying with particularity and by reference to the page and part of the page in the report: (i) the opinion in respect of which the document forms all or part of the basis; (ii) the part or parts of the document relied upon as providing the basis for the opinion; which statement shall also indicate whether those parts of the document form the sole basis for the opinion advanced, and if not, advise as to the other documents or other information relied upon as the basis of the opinion. 7. Save and except where the document in question is included in the bundle referred to in paragraphs 8 and 9 below, the first bundle of documents shall reproduce the whole of each document referred to in paragraph 6 hereof, save that, where the document exceeds 50 pages in length: (a) the bundle shall include: (i) so much of the document as is reasonably necessary to place the part or parts of the document relied upon in context; and, in any event, (ii) no less than the three (3) pages preceding and the three pages after that part or parts of the document in question; and (b) where the document is not readily available publicly, the Applicants will, at the time of serving the bundle of documents, make the document in question available for inspection by the respondents unless it is not reasonably feasible to do so, in which case the Applicants will make copies of the documents available to the Respondents. 8. On or before 17 September 2004 the Applicants shall file and serve a bundle of those documents ('the second bundle') referred to in the said Applicants' Expert Reports which they intend to tender, which bundle shall contain: (a) an index identifying each document contained therein with particularity by reference to its author, date and publisher, or, if unpublished, the source from which it was obtained; and (b) a statement identifying with particularity: (i) the part or parts of each document contained therein which will be relied upon; (ii) the purpose for which the evidence is being adduced; and (iii) the basis on which the evidence is being adduced. 9. Where the applicants are proposing to tender only part or parts of a document, the whole of the document shall be included in the second bundle of documents referred to above save that, where the document exceeds 50 pages in length: (a) the bundle shall include: (i) so much of the document as is reasonably necessary to place the part or parts of the document relied upon in context; and, in any event, (ii) no less than the three (3) pages preceding and the three pages after those part or parts of the document in question; and (b) where the document is not readily available publicly, the Applicants will, at the time of serving the bundle of documents, make the document in question available to the Respondents unless it is not reasonably feasible to do so, in which case the Applicants will make copies of the documents available to the Respondents. 10. On or before 24 October 2004 the Applicants shall file and serve draft final submissions which shall, without limiting the generality of the forgoing, address with particularity: (a) the membership and composition of the Native Title Claim Group; (b) the nature and extent of the native title rights and interests that have been extinguished; and (c) the date or dates on which each of those native title rights were extinguished in respect of various parts of the compensation area. 11. On or before 5 November 2004 the Respondents shall file and serve any objections to the Further Reports referred to in Order 2 above. 12. On or before 27 August 2004 the Respondents shall file and serve any objections to the Applicants' Historical Report. 13. Cross-examination of the Applicants' expert witnesses shall be adjourned to 22 November 2004 in Sydney. 14. The matter be listed for direction in Sydney at 9.30 am (Eastern Standard Time) on 28 October 2004. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 10 August 2004 Counsel for the Applicants: D Parsons SC with A Keeley Solicitor for the Applicants: Central Land Council Counsel for the First Respondent: T Pauling QC Solicitor for the First Respondent: Solicitor for the Northern Territory Counsel for the Third Respondent: V Hughston SC with M Perry Solicitor for the Third Respondent: Australian Government Solicitor Date of Hearing: 9 August 2004 Date of Judgment: 9 August 2004