Rubibi v State of Western Australia

REASONS FOR JUDGMENT 1 Pursuant to section 85 of the Native Title Act 1993 (Cth) ("the Act"), Edward Leonard Roe, Margaret Mary Robinson and Peter Matsumoto ("the Walman Yawuru respondents") have applied to the Court in proceedings WAG 6238 of 1998 and WAG 6006 of 1998, to be represented by a person who is not a legal practitioner. Although the first applicants opposed the application for the representation to be on behalf of the Walman Yawuru respondents they did not oppose an order enabling representation of the Walman Yawuru respondents as individuals. None of the other parties opposed the application. 2 The proceedings, which concern native title applications in respect of land and waters in and around Broome, are fixed for hearing on 14 May 2003. The Walman Yawuru respondents are respondents in each proceeding, and until December 2002 were represented by Sharon Auburn and Associates. However, the Walman Yawuru respondents are unable to pay the legal fees to enable representation at the hearing, and have sought leave to be represented by Ms Robin Hanigan, who is not legally qualified. 3 Section 85 of the Act provides: "A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person." 4 Ms Hanigan states that the Walman Yawuru respondents have incurred substantial legal costs which have been met by the Walman Yawuru respondents "by way of bank loans on Social Security benefits, donations from old age and carers' pensioners, and donations from persons receiving the Community Development Employment Project (CDEP)". As the Walman Yawuru respondents are not in a position to fund further legal costs, they have asked Ms Hanigan to represent them in the proceedings or until they are able to secure the public funding they have requested for legal representation. 5 Ms Hanigan's personal situation is as follows. She holds a Bachelor of Arts and a Diploma of Education from Murdoch University, and is completing a Masters of Arts in Professional Writing at the University of Technology, Sydney. She lived in Broome for a number of years, and has been involved with the native title claim since 1995 at an administrative and clerical level. Prior to the engagement of Sharon Auburn and Associates, Ms Hanigan assisted the Walman Yawuru respondents in the previous Federal Court native title proceedings by the first applicants. Ms Hanigan also states that; "8. The educational and literacy backgrounds of the respondents and other members of the Walman Yawuru preclude them from meeting the advocacy requirements of, and levels of preparation needed for the trial. 9. It is necessary therefore for me, to the best of my ability, and in the absence of legal counsel, to articulate their views to the court, and represent their interests in the interim, until funding becomes available." 6 Although the courts have been reluctant to exercise their discretion to allow a non legally qualified person to represent a party (see Damjanovic v Maley [2002] NSWCA 230 and the cases stated therein), s 85 of the Act specifically recognises that in particular circumstances leave of the Court for such representation may be appropriate. 7 In Rubibi Community v The State of Western Australia (2001) 112 FCR 409, which involved a number of the parties to the present proceedings, I gave leave under s 85 of the Act to the second applicants to be represented by a non legally qualified person. The grant of leave was of assistance to the Court and served the interests of the administration of justice in that case. In particular, I found that having one representative was helpful to the Court to represent the relevant applicant "group". Whilst the circumstances of leave being granted in that case differ to the circumstances of the present case, I am of the view that it is likely to be helpful to the Court to have the Walman Yawuru respondents represented by one person, albeit that she is not legally qualified. 8 In Western Australia v Ward (1997) 76 FCR 492 the Full Court considered s 85, in the context of whether the section could deny a party representation of a legal practitioner by reason of gender. However, at 501 Hill and Sundberg JJ observed: "Section 85 is wider in that it allows representation by someone who is not a lawyer. Of course, in the usual case the Court will not interfere with a party's choice of representative. But that is not because either section confers a right to specific representatives … Section 85 confers on such a person the right to the services of a lawyer or some other person. As has already been said, a party's ability to select a preferred representative will be interfered with or qualified only where the interests of justice require this to be done." 9 Lindgren J also considered s 85 of the Act in Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871. His Honour concluded that leave should not be granted, as the application had not been correctly or fully completed, and there was no evidence before him that it would be in the interests of justice to grant leave. In particular, his Honour stated, at [20]: "What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party … Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister." 10 In the present case the Walman Yawuru respondents sought and obtained legal representation, but as a result of a lack of funds, they are unable to procure further legal representation. As set out in Ms Hanigan's Affidavit, the Walman Yawuru respondents have requested legal funding from the Kimberley Land Council Native Title Representative Body, but to date their request has not been granted. There is therefore a reasonable explanation as to why they have now sought leave for a non legally qualified person to represent their interests. 11 As was observed by Lindgren J, the power to grant leave under s 85 should be exercised sparingly. However, there are particular benefits in having one person represent a claimant group, particularly where the nominated representative may be inadequately but nonetheless better qualified to represent the group members than the group members themselves. 12 Therefore, I propose to grant leave to the Walman Yawuru respondent's to allow Robin Hanigan to represent their interests in this matter, subject to certain conditions. I regard the conditions as appropriate as, if it transpires that the grant of leave proves to give rise to unanticipated problems, or it turns out not to be in the interest of the administration of justice, the leave can be revoked or varied. 13 Therefore, leave is granted on the following conditions: 1. The representation is only to relate to matters in respect of which the Walman Yawuru respondents have an interest in contesting. 2. If male gender restricted evidence is given it is to be on the basis that either the male Walman Yawuru respondents, or such other male person in respect of whom the court may grant leave to appear, represent the Walman Yawuru respondents in relation to that evidence. 3. The Court, of its own motion, and any party, including the Walman Yawuru respondents, may at any time apply for the revocation of leave or for the variation of these conditions. 4. The grant of leave is not to be a basis for varying any of the times fixed for the taking of interlocutory steps in this matter. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J.