Jango v Northern Territory of Australia (No 4) [2004] FCA 1539

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia (No 4) [2004] FCA 1539

EVIDENCE – compensation claim under the Native Title Act 1993 (Cth) – expert anthropological report – admissibility – whether disconformity between report and evidence of indigenous witnesses should result in the report being rejected as irrelevant to the issues in dispute – whether opinions based on the analysis of source data should be admitted where the source data is not in evidence – whether general observations on the difficulties of language and communication experienced by Aboriginal people when talking about traditional laws and customs is admissible – Evidence Act 1995 (Cth), s 79

Native Title Act 1993 (Cth) ss 50(2), 61(1) Evidence Act 1995 (Cth) ss 56, 60, 79, 135, 136 Neowarra v Western Australia (2003) 205 ALR 145 followed Harrington-Smith v Western Australia (No 2) (Wongatha (No 7)) (2003) 130 FCR 424 cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 354 applied Potts v Miller (1940) 64 CLR 282 cited. R v Marquard [1993] 4 SCR 223 cited Farrell v The Queen (1998) 194 CLR 286 cited. JOHNNY JANGO & ORS v NORTHERN TERRITORY OF AUSTRALIA & ORS NTD 6023 of 1998 SACKVILLE J SYDNEY 26 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY NTD 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: 26 NOVEMBER 2004

PLACE: SYDNEY

RULING ON EVIDENCE 1 The respondents have taken numerous objections to a report prepared by Professor Peter Sutton ('the Report'). The Report has been tendered by the applicants in support of their claim, pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth), for a determination of compensation in relation to the town of Yulara in the Northern Territory. 2 Professor Sutton has qualifications in anthropology and in linguistics and has published widely in these fields. In an earlier judgment, I rejected substantial portions of a report co-authored by Professor Sutton on the ground that those portions did not comply with the requirements of the Evidence Act 1995 (Cth) ('Evidence Act') applicable to opinion evidence: see Jango v Northern Territory (No 2) [2004] FCA 1004 ('Jango (No 2)'). The Report now tendered has been substantially recast in an attempt to comply with the requirements of the Evidence Act. Those requirements were outlined in Jango (No 2) and I do not repeat that analysis in this judgment. 3 The first respondent ('the Territory') filed written submissions identifying what were said to be a number of representative objections. The third respondent ('the Commonwealth') supported the Territory's position and added some objections of its own. After hearing argument I announced my rulings in order to avoid further delays in what has already been protracted litigation. In this judgment, I record the principal rulings and give brief reasons for making those rulings.