Murray on behalf of the Yilka Native Title Claimants v State of Western Australia

1 These are edited ex tempore reasons delivered at the commencement of the hearing of an interlocutory application filed by the first respondent (the State), pursuant to r 6.02 of the Federal Court Rules 2011 (Cth), and dated 15 October 2012. 2 The State's amended interlocutory application for dismissal of this proceeding or, alternatively, a permanent stay, is based on a variety of grounds, including issue estoppel, res judicata, Anshun estoppel and abuse of process. I raised with counsel for the State, Mr Waters, the utility of determining those arguments at this point. 3 At this stage of the proceeding, some weeks of evidence have already been heard. 4 From a practical point of view, I have indicated on previous occasions when the State foreshadowed the possibility of bringing this application that, while I would not stand in the way of the application being brought, I may take the view that it would be better for the State's rights to be reserved until completion of the substantive hearing. 5 In considering the utility of proceeding to hear the State's application this morning, I have taken into account a range of matters, including the fact that there would be some cost saving by not proceeding at this point if the State were to succeed in its application. 6 As against that, I take into account the very extensive nature of the written submissions before me with the State's submissions in reply running to some 46 pages, about which I raise no criticism. These are indicative of the quite detailed intricacy of the arguments and, in particular, the intricacy of the evidence. Considering those matters, a reserved decision following the foreshadowed two days of argument on this application is inevitable. Having regard to the nature of the application and its complexity and my own commitments, I cannot say that a reserved decision would be either brief or delivered quickly. 7 In making that point I note, not only the intricacies to which I have previously referred, but the fact that the law on some of these points is still evolving. I am aware of at least one proposed Full Court hearing on aspects of the matters which have been raised before me which would occur between now and the date in June when we are scheduled to resume hearing evidence. Having regard to those matters, it seems that there would inevitably be a need to incur costs and time in preparation for that resumed hearing in June, even if it did not ultimately proceed because the State's application were granted. 8 I have to pay close regard to the best use of the Court's and the applicant's strained resources. While it may be that the State's application will ultimately succeed, the prospects of my being able to say at this stage, at the commencement of the hearing, despite all of the materials that have been marshalled, that I would be likely to dismiss the proceeding before hearing further evidence is too slim to be confident about the merits of proceeding at this stage. 9 The arguments and evidence on this application, unless they change in the course of the hearing, will still be available at the conclusion of the trial, and all rights which the State presently has will be preserved. (A complaint of delay has been raised but that can only be assessed when all the evidence is examined.) For those reasons, I am of the view that it is in the interests of justice to adjourn the hearing of the State's application, such that the State can revisit that application and bring it on at the completion of the substantive hearing. The State did not resist that course. Accordingly, I will make an order adjourning the State's amended interlocutory application filed 15 October 2012 for hearing and determination in closing submissions at the conclusion of the substantial trial. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.