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[2001] FCA 5
Federal Court of Australia
2001-01-11
O'Loughlin J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 11 December 2000 the applicant in these proceedings, William Maxwell Risk, acting on behalf of the Larrakia People, filed a notice of motion in which he sought nine orders. Some of the orders that were sought related to issues of discovery but most of the proposed orders dealt with the manner in which evidence for the applicants would be adduced during the course of the trial. 2 Subsequent to the filing and serving of the notice of motion the parties engaged in correspondence and, as a result, agreement was reached in respect of six of the nine proposed orders. I see no reason why the Court should not support the resolution of the parties and hence there will be orders in terms of pars 1, 2, 3, 6, 8 and 9 as sought by the applicants. 3 The proposed orders that are in dispute are those contained in pars 4, 5 and 7 of the notice of motion. However in order to understand fully the issues that have been joined between the parties it is also desirable to refer to the orders that have now been made by consent and that are contained in pars 3 and 6. Set out hereunder are pars 3 to 7 inclusive: "3. Evidence of a witness at the trial of the action may be given in the form of a written statement adopted by a witness or orally or both orally and by a written statement. 4. Oral evidence at the trial may include statements made by a witness after consultation with other persons. Subject to further order, where such consultation occurs the identity of the persons shall be recorded in the transcript. 5. Subject to further Order, oral evidence at the trial may include statements from a group of witnesses. 6. By 23 February 2001 the Applicants are to serve on the Respondents a summary of the evidence that will be given orally by a primary witness to be called by the Applicants. 7. By 23 February 2001 the Applicants are to serve on the Respondents notice giving the content of any evidence that will be given in the form of a written statement by a primary witness to be called by the Applicants." 4 Argument in this matter proceeded by way of written submissions only; hence any reference to a submission that has been made on behalf of the applicant or on behalf of the second respondent, the Northern Territory of Australia, is a reference to the written submissions of counsel. Mr Kevin (Tibby) Quall, the first respondent, who was unrepresented, took no part in the dispute. 5 The applicants intend, generally, that evidence in chief will take the form of witness statements. However counsel has identified an exception to that proposition where evidence is to be led during site visits. In that case it is intended, generally, that evidence will be given orally. 6 As I understand the submissions that have been presented on behalf of the applicants, pars 6 and 7 of the notice of motion reflect the fact that the evidence of some witnesses will be adduced orally - as to which see par 6 - whilst the evidence of other witnesses will be adduced in written form - as to that see par 7. However the language of par 7 has given rise to some uncertainty and it is because of that uncertainty that the respondent has opposed the making of an order in those terms. In the respondent's written submissions the following passage appears: "8. In paragraph 9 of the Applicants' written submissions it is noted that the use of witness' statements as evidence in chief of the maker is part of the usual case management system applied in the Federal Court. It is also part of that usual case management system for orders to be made that witness' statements be served well in advance of the hearing. If this is in fact the intent of order 7 of the Notice of Motion, the Second Respondent does not oppose the making of an order to that effect, provided that it is clear that what is required to be served on the Respondents is the entire content of the witness' statements."
As I understand it the applicants did intend, in par 7 of the notice of motion, to propose no more than an order that witness statements, where they are intended to be used, would be served by 23 February 2001. I propose therefore that there be an order which will be in the following terms:
"By 23 February 2001 the applicants are to serve on the respondents a copy of any written statement by a primary witness who is to be called by the applicants."
group evidence 7 When this matter was first called on for mention at a directions hearing on 13 December 2000 I indicated, among other things, that orders for group consultation or group evidence would find no objection. I did not qualify that statement by emphasising that the applicants had the responsibility of first establishing the need for such evidence. Group evidence and evidence in consultation cannot be taken as a matter of course. Its availability is dependent upon it being first established that it is "in the interests of justice to do so". The subject of these types of evidence is referred to in O 78, r 34 of the Rules of Court; that rule reads as follows: "(1) The Court may, if it considers that in all the circumstances it is in the interests of justice to do so, receive into evidence statements from a group of witnesses, or a statement from a witness after that witness has consulted with other persons. (2) If a statement is made by a witness after consultation with other persons, the identity of the persons may, at the direction of the Court, be recorded in the transcript." 8 From my present knowledge of the subject matter of these proceedings I can foresee the likelihood that orders in terms of pars 4 and 5 as sought by the applicants might well be made; I can foresee, in particular, the likelihood that during site evidence the applicants might be able to explain and justify why group evidence should be received or why a particular witness might have a need to consult with others before answering certain questions. However the recognition of these possibilities cannot be translated into pre-trial orders of the blanket nature that are presently sought by the applicants. I decline therefore, at this stage, to make the orders that are sought in pars 4 and 5 of the notice of motion. However this decision does not prevent the applicants from applying at any time and from time to time during the course of the forthcoming trial, for discrete orders in respect of a particular witness or particular witnesses in the terms contemplated by O 78, r 34. 9 I direct the applicants to bring in short minutes of order in terms consistent with these reasons. Any question of costs on the notice of motion is reserved to the trial judge. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.
Solicitor for the Applicant: Ms P Cresswell
Counsel for the Second Respondent: Mr V Hughston
Solicitor for the Second Respondent: Solicitor for the Northern Territory
Date of written submissions: 18 and 22 December 2000
Date of Judgment: 11 January 2001
Risk
Quall