Bodney v Bennell

REASONS FOR JUDGMENT 1 The applicants, The Group 17 Respondents (Pastoral Interests) in WAD 6006 of 2003 (Part B) have moved for orders that they have leave to intervene in the appeal of the State of Western Australia in relation to the following matters: "(a) the reliance by the Court upon evidence from Aboriginal lay witnesses outside the Perth Metropolitan Area to establish that the First Respondents had a connection to, and native title in, the whole of the Part B Single Noongar Claim area when (i) that evidence was received only on the issues of a single Noongar society and its laws and customs; and (ii) the Pastoral Applicants who had interests in the land outside the Perth Metropolitan Area were not permitted to be parties to the proceedings; and (b) the decision of the Court to determine the question of whether the First Respondents had a connection to and native title interests in the whole of the Single Noongar Claim Area in separate proceedings in relation to the Perth Metropolitan Area, when the Pastoral Applicants were not permitted to be joined as parties to those separate proceedings and did not have a reasonable opportunity to be heard, including to lead evidence and cross-examine witnesses." 2 They seek to be permitted to make both written and oral submissions at the hearing of the appeal. 3 This application was only opposed by the first respondent and essentially on the ground that they unsuccessfully sought an order from Wilcox J prior to the hearing before his Honour that they be re-joined as respondents but did not seek leave to appeal against the referral of their application for joinder. All I would say of that opposition is that it is unlikely that the pastoralists anticipated the subsequent course of events which they allege justifies their intervention in this appeal. 4 By way of background, though parties in the Single Noongar Claim, the pastoralists were not parties in the Perth Metropolitan Area claim. On 21 December 2005, Wilcox J made orders separating the proceedings into Part A (the Perth Metropolitan Area) and Part B (the Wider Claim) of the Single Noongar Claim. 5 In its draft notice of appeal the State, under the heading "Denial of Procedural Fairness", had proposed the following two grounds of appeal: "4.3 The learned trial judge erred in law by denying the Appellant procedural fairness because his Honour relied upon evidence from witnesses outside the Perth Metropolitan Area to establish that the First Respondents had a connection to, and native title in, the whole the Claim Area ([82], [793]) when that evidence was received only on the issues of a single Noongar society and its laws and customs. 4.4 Alternatively to ground 4.3 above, if the learned trial judge was correct to consider and decide the connection of the First respondents to the Claim Area generally, then his Honour erred in law in: (1) constituting, alternatively proceeding to hand down judgement notwithstanding the constitution of, a separate proceeding in respect of the Perth Metropolitan Area divorced from the rest of the Claim area; and (2) refusing to join persons with an interest in the Claim Area as respondents; whereas his Honour should have given notice, and an opportunity to become a party, to all such persons once his Honour decided to determine the question of whether the First Respondents had a connection to and native title in the whole of the Claim Area." 6 In the Outline of Submissions the State has now filed, its contentions on these grounds are as follows: "A. Connection to Perth Metropolitan Area - Denial of procedural fairness 280. Ground 4.3 is abandoned. 281. At some point, the Judge knew he would decide that there was native title to the whole WAD 6006 of 2003 claim area. The Judge should not have proceeded to that findings (sic) in the circumstances where: (a) The Judge decided to constitute a separate proceeding, which had the effect of excluding from the hearing (i) other native title applicants thought to be challenging the Single Noongar Claim and (ii) other respondents. The exclusion of respondents (including pastoralists) occurred because their 'interests' lay only outside the Perth Metropolitan Area. There are two distinct points to note. First, the decision to separate the Perth Metropolitan Area was made, not before the pastoralists' application to be joined as a party, but because of it. Secondly, the exclusion of other, and competing, claimant groups was by failure to notify (although presumably they would have been held to lack an 'interest' anyway). (b) His Honour explained to Mr Bodney that that (sic) the purpose of taking evidence outside the Perth area was merely 'to understand the Single "Noongar" ongoing culture'. (c) The stated understanding of the State was that the issue at trial concerned only whether native title existed in the Perth Metropolitan Area and the State (for that reason) did not cross-examine on any other basis. (d) The stated rationale for the separate question relating to only the Perth Metropolitan Area was that it was too unwieldy to determine native title for the entire 'Noongar' claim area in one hearing. 282. The possibility that his Honour would find native title exists in the Perth Metropolitan Area as an incident of native title throughout the whole area of application WAD 6006 of 2003 was raised by the First Respondents distinctly for the first time only after the State had closed its case. The State objected to such a course in its closing submissions, and his Honour did not rule upon the issue until he delivered judgment (in which he did adopt that reasoning). 283. In all the circumstances, the Full Court could not be satisfied that the trial was conducted fairly." 7 The affidavit filed in support of the intervention goes, in some detail, into matters of procedural history and it indicates the manner in which it is alleged the pastoralists were denied procedural fairness by not being parties to the Perth Metropolitan Area. In essence, they assert they were denied the opportunity to adduce evidence in relation to, and to cross-examine on, matters affecting their interests in the wider claim area. It is the case, as the State's own submissions indicate, that the pastoralists, but not only the pastoralists, have a particular interest in the procedural fairness question. 8 While I am of the view that it is likely that the pastoralists' contributions will in essence parallel that of the State as it relates to ground 4.4, I consider it appropriate that the pastoralists legal representatives be given the opportunity to consult with the State of Western Australia legal representatives for the purpose of determining whether, in light of the submissions to be made by the State, any submission they would make would usefully travel beyond the substance of what the State proposed to advance. 9 It may well be that, having consulted with the State's legal advisers, the conclusion is arrived at that no purpose helpful to the disposition of this appeal would be served by the making of such supplementary submissions. However, against the contingency that such is not the case, I would grant leave to intervene in the State's appeal limited to ground 4.4 of the draft notice of appeal and to file and serve an Outline of Submissions of not more than five pages. 10 I would not at this stage give leave to make oral submissions. That question should be considered at the close of the Crown's case and in light of the view taken by the Court at that stage as to whether an oral contribution by the pastoralists would be useful in the circumstances. By so limiting the intervention, I do not consider that it might unreasonably interfere with the ability of the parties to conduct the appeal as they wish. 11 Accordingly I will give leave to the Group 17 Respondents (Pastoral Interests) to intervene in the State's appeal in relation to ground 4.4 of the draft notice of appeal. As a condition of that intervention, I require the legal advisers of the Group 17 Respondents (Pastoral Interests) to consult with the State's legal advisers for the purpose of determining whether, in light of the State's submissions, the filing of an Outline of Submissions by the pastoralists would make a useful contribution to the resolution of this ground of appeal. If, after such consultation, it is considered that such an Outline ought be filed in the appeal, it is to be no longer than five pages and it is to be filed and served on the other parties to the appeal on or before Friday, 2 March 2007. A further condition of the leave is that the interveners bear their own costs of the intervention. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J.