Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827

Federal Court of Australia

Malone on behalf of the Western Kangoulu People v State of Queensland (No 3) [2022] FCA 827 File number: QUD 17 of 2019

Judgment of: O'BRYAN J

Date of judgment: 19 July 2022

Catchwords: EVIDENCE – evidentiary rulings – objections to evidence in anthropological report – principles governing admissibility of expert opinion evidence and hearsay basis materials – where expert anthropological witness relied upon opinions of other anthropologists not being called as witnesses in the proceeding – opinions of other anthropologists admissible to prove the foundation of the expert witness' opinion pursuant to ss 60 and/or 77 of the Evidence Act 1995 (Cth) – hearsay opinions not admissible to show that they are in harmony with expert witness' opinion – where applicant proposed to tender materials prepared by other anthropologists not being called as witnesses in the proceeding – materials of other anthropologists admissible in so far as they are a foundation for the opinions of the anthropologist giving expert evidence in the proceeding, but not otherwise – not appropriate to dispense with rules of evidence NATIVE TITLE – principles governing admissibility of anthropological evidence and basis material

Legislation: Evidence Act 1995 (Cth) ss 59, 60, 63, 72, 76, 77, 79, 135, 136, 192A Native Title Act 1993 (Cth) ss 61, 82 Federal Court Rules 2011 (Cth) r 30.01

Cases cited: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559; 76 IPR 618 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472; 207 ALR 539 Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621 Bodney v Bennell (2008) 167 FCR 84 Borowski v Quayle [1966] VR 382 Daniels v Western Australia [2000] FCA 858; 178 ALR 542 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 Gumana v Northern Territory (2005) 141 FCR 457 Harrington-Smith & Ors on behalf of the Wongatha People v Western Australia (No 2) (2003) 130 FCR 424 Jango v Northern Territory (No 2) [2004] FCA 1004 Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 Lee v The Queen (1998) 195 CLR 594 Lithgow City Council v Jackson (2011) 244 CLR 352 Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 Miller v State of South Australia (Far West Coast Sea Claim) (No 3) [2022] FCA 466 Neowarra v Western Australia (2003) 134 FCR 208 Quick v Stoland Pty Ltd (1998) 87 FCR 371 R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 Risk v Northern Territory [2006] FCA 404 TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3) [2015] FCA 1359