De Rose v The State of SA

REASONS FOR JUDGMENT 1 On Wednesday, 11 July 2001, the sixteenth day of the trial (in which the applicants are seeking a determination of Native Title), Mr Besanko QC, counsel for the State of South Australia applied for a change of venue. His application was supported by Mr Whitington QC, counsel for the second respondents but it was opposed by Mr Howie SC, counsel for the applicants. After hearing argument from counsel, I refused the application, stating that I would deliver my reasons at a later stage. What is set out below constitutes those reasons. 2 In the preparatory stages of the trial, it was proposed that the evidence of some twenty to twenty five Aboriginal witnesses would be heard at a location called Ilintjitjara; after the conclusion of that evidence and before any cross-examination, the court would then visit fourteen sites of particular significance to the Aboriginal claimants so that further evidence about the sites could be heard from selected witnesses. At the conclusion of the site inspections, it was intended that cross-examination would commence and conclude at Ilintjitjara. 3 Counsel for the respondents did not oppose the proposals and after taking the opening addresses in Adelaide on Monday and Tuesday 4 and 5 June 2001, the Court adjourned, as planned, and commenced taking evidence at Ilintjitjara on Friday 8 June. These plans were severely affected by abnormally heavy rains in the district on Sunday 10 June. 4 Ilintjitjara is about 75 kilometres to the north of the small township of Marla in the far north of South Australia. It is reached by driving north on the Stuart highway from Marla. However, the last three kilometres consist, in part, of a dirt track, which quickly turns into a quagmire after heavy rain. Fortunately, however, the Court staff were able to arrange for the use of the Community Hall in Marla and the balance of evidence in chief was taken at that location from Monday 11 June through to Wednesday 13 June. At that stage, no further witnesses were available and the Court was forced to adjourn until the tracks to the various locations had dried out and were serviceable for vehicles. 5 On Tuesday 3 July 2001, the Court reconvened at Ilintjitjara to take the evidence of a witness for the applicants who had not previously been available. After that evidence in chief, had been concluded, the Court proceeded to the location of the first site where further evidence in chief was taken. Thereafter, on each successive day, other than Sunday 8 July, the Court visited one or more sites of specific interest to the applicants and received further evidence in chief. 6 Mr Besanko applied to have the venue shifted from Ilintjitjara to the hall at Marla so that all cross-examination can be conducted at the location. Mr Besanko, in presenting his argument, pointed to the fact that, because of the weather, the case had fallen behind its scheduled timetable. He asked the Court to note that the Court party and the counsel and the solicitors for both respondents were located at Marla; that meant travelling to Ilintjitjara each day - a drive of approximately forty to forty-five minutes. Valuable time, which could be used for taking evidence, was therefore lost. 7 It needs to be emphasised that Ilintjitjara is merely the name for a locality. There are no permanent amenities. However, great efforts have been made to accommodate the Court, the parties and their legal and other advisers. A large marquee has been erected and that has served adequately as the courtroom. The applicants, whose permanent homes are at various locations, have, for the most part, set up camp at Ilintjitjara. Although none of the parties presented evidence on the subject, I am prepared to accept, partially from my own observations and partially as a consequence of what counsel for the applicants submitted, that the location of the court at Ilintjitjara is one of convenience to the applicants and their witnesses because it is in the immediate proximity of their camp. I am also very much influenced by the frailty of many of the Aboriginal people who have either given evidence of who have been regular attendees at the hearing. Some of them are very old and very frail. 8 There are, I think several answers to Mr Besanko's submissions. Whilst I accept that the travelling time is a burden to the Court and to the respondents' advisers, it should be remembered that a change of venue would transfer the burden to the elderly, frail Aboriginal people (and the legal advisers for the applicants who are staying nearby to Ilintjitjara at a place called Railway Bore). Secondly, the facilities at Marla are, in relative terms, foreign to the applicants; I think that the Court should accommodate the fact that they are not urbanised Aboriginal people; even a remote locality like Marla might be intimidatory to some of them. In coming to this conclusion I have had regard to O 78 r 31(3)(d) of the Federal Court Rules which say: "(3) Whilst limiting subrule (2), the Court may make orders: (a) … (b) … (c) … (d) relating to the time when and the place where certain evidence is to be taken; or" 9 I have also taken into account s 82(2) of the Native Title Act 1993 (Cth). It says: "In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings."