Agius v State of South Australia (No 5) [2017] FCA 1339

FEDERAL COURT OF AUSTRALIA

Agius v State of South Australia (No 5) [2017] FCA 1339 File number: SAD 6001 of 2000

Judge: MORTIMER J

Date of judgment: 15 November 2017

Legislation: Native Title Act 1993 (Cth), s 61

Cases cited: Agius v State of South Australia (No 4) [2017] FCA 361

Date of hearing: Determined on the papers

Date of last submissions: 3 November 2017

Registry: Victoria

Division: General Division

National Practice Area: Native Title

Category: No Catchwords

Number of paragraphs: 24

Counsel for the Applicant: Mr T Keely SC with Mr D Billington

Solicitor for the Applicant: Campbell Law

Counsel for the State of South Australia: Mr S Whitten with Mr P Tonkin

Solicitor for the State of South Australia: Crown Solicitor's Office

Solicitor for the Commonwealth: Ms S Davis of Australian Government Solicitor

Table of Corrections

21 November 2017 In Order 36, the date "12 February 2017" has been corrected to "12 February 2018".

ORDERS SAD 6001 of 2000

BETWEEN: GARTH AGIUS & OTHERS Applicant

AND: STATE OF SOUTH AUSTRALIA First Respondent

COMMONWEALTH OF AUSTRALIA & OTHERS Second Respondent

JUDGE: MORTIMER J DATE OF ORDER: 15 november 2017

THE COURT ORDERS THAT:

1. The orders of White J dated 11 November 2016 and the orders of Mortimer J dated 7 April 2017, 24 August 2017 and 6 November 2017 are vacated and replaced with the following consolidated orders. 2. Pursuant to r 30.01 Federal Court Rules 2011, the following questions be decided separately from and before any other questions in the proceedings: But for any question of extinguishment of native title and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth): (a) Does native title exist in relation to any and what land and waters of the Kaurna claim area? (b) In relation to that part of the Kaurna claim area to which the answer to (a) above is in the affirmative: (i) Who are the persons, or each group of persons, holding the common or group rights comprising the native title? (ii) What is the nature and extent of the native title rights and interest? Trial 3. The trial of the separate question is set down for hearing for an estimate of five weeks (part heard) commencing at 10.15 am on 3 April 2018. 4. The part heard trial be further listed for an estimate of one week commencing at 10.15 am on 21 May 2018. Parties 5. The Applicant, the State and the Commonwealth are excused from serving documents on any party which has not filed a notice to the effect that it requires that it be served with all documents filed in relation to this part of the proceeding. Pleadings 6. The Applicant file and serve a proposed replacement statement of issues, facts and contentions (SIFC) in two stages: (a) On or before 28 November 2017, a proposed replacement SIFC limited to: (i) the relevant society and the country boundaries of the relevant group as at 1836; (ii) apical ancestors; (iii) the impacts of colonial settlement in the 1800s; and (iv) the selection of land for aboriginal reserves in around the 1840s; and (b) On or before 2 February 2018, a final proposed replacement SIFC, incorporating the contents of the document filed on 28 November 2017 and adding only new matters not dealt with in the 28 November 2017 document. 7. On or before 9 February 2018, the State and the Commonwealth file and serve any objections to leave being granted to the Applicant to rely on the final proposed replacement SIFCs. 8. On or before 16 February 2018, if there are no objections filed pursuant to order 7, then each of the State and the Commonwealth file and serve a response which identifies: (a) the facts in the SIFCs which are disputed; (b) any additional facts or contentions relied upon in opposition of the Applicant's claim; and (c) any further or alternative orders sought. Evidence of witnesses other than expert witnesses 9. The parties are to provide the lay evidence in support of their claims/defences by filing and serving: (a) a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or (b) an outline of the evidence proposed to be led from a witness (other than an expert witness) orally. 10. On or before 15 December 2017, the Applicant file and serve: (a) a list of the proposed witnesses (other than expert witnesses) upon whose evidence the Applicant will rely; and (b) a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or (c) an outline of the evidence proposed to be led from a witness (other than an expert witness) orally; and (d) a copy of each photograph or other document (appropriately captioned or described) which it proposes to tender or refer to in the evidence of a witness. 11. On or before 16 February 2018, the State and the Commonwealth, if intending to lead evidence from a non-expert witness, file and serve: (a) a list of the proposed witnesses (other than expert witnesses) upon whose evidence they will rely; and (b) a statement of evidence for a witness (other than expert witnesses) whom it proposes will give evidence in writing; or (c) an outline of the evidence proposed to be led from a witness (other than an expert witness) orally; and (d) a copy of each photograph or other document (appropriately captioned or described) which it proposes to tender or refer to in the evidence of a witness. 12. Without the leave of the Court, no party may lead evidence from a witness (other than an expert witness) unless a statement of evidence or an outline of evidence has been filed in accordance with orders 10 or 11. Objections to evidence of witnesses other than expert witnesses 13. On or before 2 March 2018, any party who does not consent to the whole of a statement or document filed in accordance with orders 10 or 11 being admitted into evidence file and serve a notice identifying: (a) those parts of any statement of evidence or outline of evidence which that party objects to being admitted into evidence, together with the basis for such objection; and (b) those parts of any statement of evidence which that party contends should be given as oral evidence from the witness, during examination in chief; and (c) those photographs or documents or parts thereof the tender of which is objected to, stating the basis for such objection. Expert evidence 14. The Applicant file and serve: (a) on or before 23 October 2017, any further expert historian's report by Dr R Foster limited to the issue of the basis for and the significance of the selection of land in or about the 1840s for Aboriginal Reserves; (b) on or before 23 October 2017, an expert anthropologist's report by Associate Professor N Draper in relation to the relevant society and the country boundaries of the relevant group as at 1836 and apical ancestors; (c) on or before 23 October 2017, substantially updated genealogies by Associate Professor N Draper; (d) on or before 7 November 2017, an expert ethno-historian's report by Dr S Krichauff in relation to the relevant apical ancestors. 15. On or before 29 January 2018, the Applicant file and serve an expert report by Associate Professor N Draper dealing with connection issues, other than the relevant society and the country boundaries of the relevant group as at 1836 and apical ancestors. 16. On or before 20 November 2017, the State and the Commonwealth file and serve any expert evidence on which that party seeks to rely in response to the filed expert reports of Dr R Foster, Dr S Krichauff, and the filed expert report and updated genealogies of Associate Professor N Draper referred to in orders 14(b) and 14(c); 17. On or before 28 February 2018, the State and the Commonwealth file and serve any expert evidence on which that party seeks to rely in response to the expert report of Associate Professor N Draper referred to in order 15. 18. Any expert's report filed by any party is to comply with the Court's Guidelines for Expert Witnesses. 19. Upon a request of another party, a party who has filed an expert's report shall allow the requesting party to inspect and, if requested, provide at the requesting party's expense, copies of all documents referred to in the expert's report which are unpublished or not reasonably accessible by the requesting party's experts, within 14 days of such request. 20. The expert witnesses for those parties who have filed expert evidence are to attend a conference(s) (Experts' Conference) before a Registrar of the Court for the purpose of narrowing or removing any differences in their relevant opinions, and the experts shall produce for the use of the parties and the Court a document(s) identifying with respect to matters and issues within their expertise: (a) the matters and issues about which their opinions are in agreement; (b) the matters and issues about which their opinions differ; and (c) where their opinions differ the reasons for their difference. 21. The Experts' Conference shall proceed in two stages as follows: (a) the first stage of the conference to take place on 4 and 5 December 2017, commencing at 9.30 am, to consider the issues addressed in the expert reports filed to that date; (b) the second stage of the conference take place on 15 March and 16 March 2018, commencing at 9.30 am to consider the issues in the expert reports filed pursuant to orders 15 and 17. 22. Within one week before the date of the Experts' Conference, the Registrar convening the conference is, in consultation with the Applicant and those respondents who have filed an expert anthropological report, to circulate an agenda to the participating experts. 23. The participants in the Experts' Conference are limited to those experts who have authored reports filed pursuant to these orders, the Registrar and such Court staff as are required to assist the Registrar. 24. Within 10 days of the conclusion of each of the Experts' Conference, the Registrar produce a report for the use of the parties and the Court in identifying: (a) the matters and issues about which the opinions of the experts are in agreement; and (b) the matters and issues about which their opinions differ. Objections to expert evidence 25. On or before 13 March 2018, each of the parties is to file and serve a notice identifying any parts of any expert report to which it intends to object with a brief statement identifying in each case the reasons for the objection. 26. The parties are to use their best efforts to resolve any objections which are filed pursuant to order 25 prior to the commencement of the hearing. Other documentary evidence 27. On or before 2 March 2018, the Applicant will file and serve an index of any other documents that it intends to tender as evidence at trial, and make available for inspection copies of the documents listed in the index. 28. On or before 9 March 2018, the State and any other Active Respondent, will file and serve an index of any other documents that it intends to tender as evidence at trial, and make available for inspection copies of the documents listed in the index. 29. On or before 29 March 2018, the parties will file and serve an index of, and copies of, documents which may be tendered at the trial, identifying: (a) those documents which the parties agree are admissible and can be tendered; (b) those documents which are not agreed and which the Applicant seeks to tender; (c) those documents which are not agreed and which any of (identifying which) the respondents seek to tender. 30. Under the guidance of a Registrar following case management, by 2 March 2018 the Applicant shall provide to the Court and the Active Respondents in draft, and by 21 March 2018, the parties shall provide to the Court in final form, a timetable for the conduct of the trial of the separate question (the hearing schedule). The hearing schedule should include the parties' best estimates of when each witness will be called to give evidence, the sequence of witnesses, and how long each party will examine/cross-examine the witness; whether there is to be any evidence given on country (alternatively site inspections) and if so, when; whether expert evidence is to be given concurrently; whether it is expected closing submissions will be made immediately upon the conclusion of the evidence at the trial.