FEDERAL COURT OF AUSTRALIA Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2015] FCA 1415 Citation: Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2015] FCA 1415 Parties: ERNEST DAMIEN MANADO ON BEHALF OF THE BINBUNBUR NATIVE TITLE CLAIM GROUP (AREA A) (and others as per the schedule) v STATE OF WESTERN AUSTRALIA (and others as per the schedule) ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (AREA B) (and others as per the schedule) v STATE OF WESTERN AUSTRALIA (and others as per the schedule) RITA AUGUSTINE ON BEHALF OF THE JABIRR JABIRR NATIVE TITLE CLAIM GROUP (and others as per the schedule) v STATE OF WESTERN AUSTRALIA (and others as per the schedule) JR (DECEASED) ON BEHALF OF THE GOOLARABOOLOO NATIVE TITLE CLAIM GROUP (and others as per the schedule) v STATE OF WESTERN AUSTRALIA (and others as per the schedule) File number(s): WAD 359 of 2013 WAD 94 of 2014 WAD 357 of 2013 WAD 374 of 2013 Judge(s): NORTH J Date of judgment: 2 November 2015 Catchwords: NATIVE TITLE – Application to vacate hearing dates – Funding for ongoing conduct of case not sufficiently secure – Amount of preparation necessary not able to be completed in time available – Hearing dates vacated Date of hearing: 2 November 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the First and Second Applicants: Ms M Brayne Solicitor for the First and Second Applicants: Kimberley Land Council Counsel for the Third Applicant: Mr D O'Gorman SC Solicitor for the Third Applicant: Blackshield Lawyers Solicitor for the Fourth Applicant: Mr A Chalk with Mr J Walkley of Chalk and Fitzgerald Counsel for the State of Western Australia: Mr P Quinlan SC with Ms C Taggert Solicitor for the State of Western Australia: State Solicitors Counsel for the Commonwealth: Ms S Brownhill SC with Ms J MacDonald Solicitor for the Commonwealth: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 359 of 2013 BETWEEN: ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (AREA A) (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent JUDGE: NORTH J DATE OF ORDER: 2 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The hearing dates 9, 10, 11, 12 and 13 November 2015 are vacated. 2. The matter is listed for a directions hearing at 2.15 pm (Melbourne time) on 14 December 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 94 of 2014 BETWEEN: ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (AREA B) (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent JUDGE: NORTH J DATE OF ORDER: 2 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The hearing dates 9, 10, 11, 12 and 13 November 2015 are vacated. 2. The matter is listed for a directions hearing at 2.15 pm (Melbourne time) on 14 December 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 357 of 2013 BETWEEN: RITA AUGUSTINE ON BEHALF OF THE JABIRR JABIRR NATIVE TITLE CLAIM GROUP (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent JUDGE: NORTH J DATE OF ORDER: 2 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The hearing dates 9, 10, 11, 12 and 13 November 2015 are vacated. 2. The matter is listed for a directions hearing at 2.15 pm (Melbourne time) on 14 December 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 374 of 2013 BETWEEN: JR (DECEASED) ON BEHALF OF THE GOOLARABOOLOO NATIVE TITLE CLAIM GROUP (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent JUDGE: NORTH J DATE OF ORDER: 2 NOVEMBER 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The hearing dates 9, 10, 11, 12 and 13 November 2015 are vacated. 2. The matter is listed for a directions hearing at 2.15 pm (Melbourne time) on 14 December 2015. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 359 of 2013 BETWEEN: ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (AREA A) (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 94 of 2014 BETWEEN: ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (AREA B) (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 357 of 2013 BETWEEN: RITA AUGUSTINE ON BEHALF OF THE JABIRR JABIRR NATIVE TITLE CLAIM GROUP (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 374 of 2013 BETWEEN: JR (DECEASED) ON BEHALF OF THE GOOLARABOOLOO NATIVE TITLE CLAIM GROUP (and others as per the schedule) Applicant AND: STATE OF WESTERN AUSTRALIA (and others as per the schedule) Respondent JUDGE: NORTH J DATE: 2 NOVEMBER 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In these reasons for judgment: Ernest Damien Manado on behalf of the Bindunbur Native Title Claim Group (Area A) (and others as per the schedule) shall be referred to as the first applicant; Ernest Damien Manado on behalf of the Bindunbur Native Title Claim Group (Area B) (and others as per the schedule) shall be referred to as the second applicant; Rita Augustine on behalf of the Jabirr Jabirr Native Title Claim Group (and others as per the schedule) shall be referred to as the third applicant; and JR (deceased) on behalf of the Goolarabooloo Native Title Claim Group (and others as per the schedule) shall be referred to as the fourth applicant. 2 This case was part heard in Broome following a hearing of the first tranche of evidence between 21 September 2015 and 9 October 2015. In the course of that hearing the fundamental issues relating to the question of the entitlement of the fourth applicant to join in any native title determination became clearer. A second tranche of evidence is scheduled to be heard in Broome in March 2016. 3 At the suggestion of the Court, a proposal was formulated between the parties to allow for an additional five days of evidence in Broome, commencing 9 November 2015, for the fourth applicant to lead evidence which demonstrated the essence of their case. Orders were made on 9 October 2015, adjourning the proceedings to 9 November 2015, and requiring the fourth applicant to provide to the Court by 23 October 2015 a report about their capacity to proceed with the hearing on 9 November 2015. 4 The proposed course of action was intended to allow the experts, including the anthropologists engaged by each of the parties, to consider the oral evidence of the main law people of the fourth applicant. It was anticipated that this may facilitate some more defined agreement between the experts, in order to narrow the issues in dispute and define with some clarity the matters contested between the indigenous parties. 5 Whilst the objective of the proposed course was embraced by all parties, on consideration it became apparent, particularly to the fourth applicant, that the proposal was impractical for a number of reasons. Consequently, the fourth applicant has filed an application to vacate the proposed November 2015 hearing dates. 6 The fourth applicant seeks to vacate the hearing dates for several reasons. First, the fourth applicant says that the funding for the ongoing conduct of the case is not available or is not sufficiently secure to enable the legal representatives of the fourth applicant to proceed with further work. Second, the fourth applicant submits that the amount of preparation necessary cannot be completed in the time available given the limited human resources available to the fourth applicant's legal representatives to complete the process. 7 The proposed additional hearing dates are intended to allow for two days of site evidence from the witnesses for the fourth applicant, which were originally scheduled during the first tranche of evidence (21 September 2015 to 9 October 2015), but were not possible due to fire and road closures. In addition, three extra days are proposed, to allow for evidence to be heard from a number of individual lay witnesses for the fourth applicant. 8 Subject to the availability of funding, there is no issue from the fourth applicant concerning the preparation of two days of site evidence. However, the fourth applicant submits that it does not have the resources to adequately prepare for the proposed additional days of lay witness evidence. That evidence was originally scheduled to commence in March 2016. Such preparation would entail preparing, filing and serving supplementary witness affidavits, preparing the parts of the witness affidavits to be led orally as evidence in chief, and preparing witnesses for cross-examination. The fourth applicant argues that there is no opportunity for supplementary evidence to be properly or fairly prepared, or for individual witnesses to be properly or fairly prepared to be cross-examined, in the time available and in the circumstances. 9 The first and second applicants oppose the application to vacate the dates on the basis that the funding available to the fourth applicant is sufficiently secure to enable a further week of the hearing to occur. The first and second applicants further submit that there would not be any injustice to the fourth applicant in allowing a few central witnesses for the fourth applicant to be cross-examined in the proposed November hearing. 10 The third applicant opposes the application to vacate the November hearing, and adopts the submissions of the first and second applicants. 11 The State of Western Australia and the Commonwealth do not oppose the application to vacate the November hearing. 12 It is accepted that to return to Broome during November 2015 simply to hear two and a half days of site evidence would not be justified. Consequently, it being common ground that it is desirable to narrow the issues in the case as soon as possible, the question is whether the two concerns of the fourth applicant, namely funding, and time and resources available for preparation, should cause the Court to vacate the November 2015 dates. 13 On the question of funding, there is evidence from Andrew John Chalk, the solicitor for the fourth applicant, that additional funding for the further prosecution of the fourth applicant's case is available from the Commonwealth through the Kimberley Land Council, subject to a number of conditions. The content of the conditions, and whether the conditions will be met, is unclear from the materials. I accept Mr Chalk's argument that, at present, for his firm to proceed would in effect be taking on a case for which the funding is not currently secured. That circumstance, on its own, provides a strong reason to vacate the proposed November dates. The solicitors for the fourth applicant should not be forced to take on the risk of not receiving payment for their work. The question arises how it came to be that solicitors for the fourth applicant agreed to a timetable and program for hearing over many weeks into the future on the basis of funding which has now been exhausted. However, the issue will not be taken further at this stage apart from highlighting that the question may arise again in the future. 14 On the second issue, namely, the prejudice which might flow from the fourth applicant being forced to proceed, the fourth applicant drew attention to the careful programming orders which were put in place by Barker J on 4 July 2014 (as amended by subsequent orders of the Court). That process provided for the fourth applicant's witnesses to scrutinise the statements of evidence made by the first, second and third applicants and prepare responsive supplementary affidavits prior to any cross-examination of the fourth applicant's witnesses. Supplementary affidavits have not yet been filed for the fourth applicant's witnesses. It is argued that it would be unfair to have accorded to the first and second applicant's witnesses the value of that process but deny it to the fourth applicant's witnesses. 15 There is some force in this argument. It might have been hoped that the fourth applicant's solicitors would have been prepared to be a little more agile and flexible to allow for an amended schedule designed to potentially shorten proceedings. However, it cannot be said that their reliance on equal treatment is misplaced. That therefore provides another reason why the November 2015 hearing days should not proceed. The two affidavits of Mr Chalk, which explain the limited human resources available to the solicitors for the fourth applicant, are also compelling. 16 The additional week was proposed at short notice. Whilst it is possible that the burden of preparation for the additional week, as contemplated by the fourth applicant was perhaps exaggerated in the minds of those making the assessment, nonetheless, that is their assessment. They argued forcefully that there was insufficient time to do justice to the preparation of their witnesses. Due regard should be paid to the assessment by the lawyers engaged in the case who have a deep knowledge of the case and are in a better position to make that assessment than the Court. It is noted that that assessment was not meaningfully challenged by counsel for the first and second applicants. 17 In the end, therefore, each of the factors point to the need for the November 2015 dates to be vacated, despite the efforts which have been made towards progressing the revised program. Consequently, the orders of the Court will be to vacate the hearing fixed for five days commencing 9 November 2015. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 10 December 2015 SCHEDULE WAD 359 of 2013 Applicants CECILIA CHURNSIDE ALEC DANN BETTY DIXON WALTER KOSTER PHILLIP MCCARTHY Respondents COMMONWEALTH OF AUSTRALIA WAD 94 of 2014 Applicants CECILIA CHURNSIDE ALEC DANN BETTY DIXON WALTER KOSTER PHILLIP MCCARTHY Respondents COMMONWEALTH OF AUSTRALIA WAD 357 of 2013 Applicants ELIZABETH DIXON CECILIA DJIAGWEEN PADDY IGNATIUS ANTHONY WATSON Respondents COMMONWEALTH OF AUSTRALIA WAD 374 of 2013 Applicants BRIAN JOHN COUNCILLOR TERRENCE HUNTER JASON DAVID ROE RONALD LESLIE ROE Respondents COMMONWEALTH OF AUSTRALIA