Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales

1. The application for extension of time accompanying the first respondent's submissions filed on 24 June 2020 is granted.
2. The proposed cross-appeal accompanying the first respondent's submissions filed on 24 June 2020 is allowed.
3. Order 1(3) of the orders made on 30 July 2019 is set aside. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 On 17 June 2020, after dismissing the appellant's appeal and ordering that the primary judge's answers to questions (1), (2), (4) and (5) should be set aside, we also ordered that the parties file submissions "… on the question of whether the order made on 30 July 2019 answering separate question (3) should be set aside …" (see [2020] FCAFC 103). 2 This issue arose because, in its submissions on this appeal, the first respondent foreshadowed that, should it be determined in the manner described above, it wished to make "an application for an extension of time to file a cross-appeal with respect to Question 3 concerning Area 74 so that it may be dealt with in the same manner as the questions with respect to the four Areas the subject of the present appeal" (see [2020] FCAFC 103 at [39]). In this respect, it should be noted that, while questions (1), (2), (4) and (5) were answered by the primary judge in the respondents' favour, question (3) was answered in the appellant's favour. 3 In its submissions on this issue, the State contended that, since essentially the same issues arose with respect to all five Areas, "it would be anomalous if the answer given by [the primary judge] were to stand where the Full Court has set aside his Honour's answers to the other questions on the ground that they were not appropriate for determination". Accompanying the State's submissions was an application for extension of time to file a cross-appeal on this issue and a proposed notice of cross-appeal. 4 In its submissions, the appellant neither consented to, nor opposed, the orders sought by the State. 5 In our view, the State is correct in its contention that it would be anomalous to allow the answer to question (3) to stand when it was as much a part of the separate question procedure that led to the answers to the other four questions being set aside. We, therefore, propose to grant the State's application for an extension of time to file its proposed cross-appeal, allow the proposed cross-appeal and order that the answer to question (3) be set aside. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Murphy and Griffiths.