State of Western Australia v Ward

REASONS FOR JUDGMENT 1 These appeals have been the subject of a number of directions hearings. It is not presently necessary to outline this past history in detail. It is sufficient to say that at a directions hearing held on 14 March 2003, it was ordered that the appeals would be heard in the week commencing 1 September 2003. The native title claimants were ordered to file and serve a full outline of their submissions by 24 March 2003, in order to crystallize the issues remaining to be determined on remitter from the High Court at the hearing of the appeals. These submissions were filed on 29 April 2003. 2 A further directions hearing was held before me on 2 May 2003. Prior to the hearing, proposed orders were circulated between the parties, which indicated that the parties agreed to the steps necessary to be taken before the hearing of the appeals but disagreed as to some dates. 3 At the directions hearing I raised the possibility of mediation, which had not been provided for in the proposed orders. There was a good measure of acceptance of this suggestion and it was agreed to include this stage in the timetable. 4 Having regard to the number of agreed steps necessary to be taken before the hearing of the appeal, it became clear that the September hearing date could not be met. Most of the parties were content with moving the hearing date to December 2003 as proposed by the claimants of the West Australian lands. However, as the appeal bench was not available for a December hearing, the hearing of the appeal was tentatively shifted to March 2004. 5 I was then persuaded that it was appropriate to list the appeals relating to the Northern Territory lands for hearing at an earlier date than the appeals relating to the Western Australian lands. This was because the issues relating to the Northern Territory lands appeared much more confined. Indeed, I was told that agreement had been reached in relation to the Northern Territory lands, subject to the resolution of some issues raised by the Commonwealth, and subject to consultation with the native title claimants of the Western Australian lands. 6 At the conclusion of the directions hearing on 2 May 2003, I directed that the parties prepare minutes of orders based on the general framework of the steps to be taken, as discussed, and the timing of those steps. 7 However, despite valiant efforts, no agreement as to dates could be reached. The parties were then directed to file submissions on that issue and I prepared draft orders based on these submissions. Prior to advising the parties of the dates fixed in the orders, however, the Court was informed that Beaumont J had taken ill and was to undergo urgent surgery. He is now on the road to recovery, but is unable to continue as a member of this Full Court. On Friday, 30 May 2003, the Chief Justice reconstituted the bench, adding Wilcox and Weinberg JJ as members of the Full Court. 8 In light of the unfortunate and unforeseen events that have occurred, a new timetable must be settled within the framework established on 2 May 2003, and which accommodates the availability of the appeal bench. The timetable is based upon the draft orders filed by the State of Western Australia prior to the 2 May 2003 directions hearing, which provided as follows: 9 DEFINE THE ISSUES 1. Each appellant file and serve by ……. a notice identifying the grounds, or amended grounds, of appeal it seeks to pursue on the remitter. 2. Each respondent file and serve by ……. a notice identifying any cross-appeal or contention it seeks to pursue on the remitter. 3. Applications for leave to amend a notice of appeal, cross appeal or contention or to file a notice of appeal, cross appeal or contention out of time pursuant to Order 15 Rule (2), Order 21 Rule (3) or Order 22 Rule (1) of the Federal Court Rules, will be heard on ……. . REFERRAL TO MEDIATION 4. In so far as it relates to land and waters in Western Australia the matter is referred to mediation by Deputy District Registrar Efthim. The mediation is listed for 5 days commencing on ……. . The mediation is to take place in Perth. 5. The Registrar is to report to the Court on the outcome of the mediation referred to in Order 4 by ……. . NORTHERN TERRITORY 6. In so far as it relates to land and waters in Northern Territory the matter is referred to mediation by Deputy District Registrar Efthim. The mediation is listed for 2 days on ……. The mediation is to take place in Darwin. 7. The Registrar is to report to the Court on the outcome of the mediation referred to in Order 6 by ……. . NOTICE OF FURTHER EVIDENCE 8. Any Party wishing to do so shall file and serve by ……. an application for an order pursuant to s 27 of the Federal Court Act 1976 (Cth) that the Court receive further evidence, together with: (a) in relation to any evidence proposed to be led orally - notice of the substance of that proposed evidence; (b) in relation to any other evidence - a statement, affidavit or document containing or comprising that proposed evidence. 9. Any application made pursuant to order 8 is fixed for hearing on ……. . HEARING OF ANY FURTHER EVIDENCE 10. The week commencing ……. be fixed for the hearing of any further evidence. WRITTEN SUBMISSIONS AND REPLIES Western Australia 11. In so far as they relate to the issues concerning land and waters in Western Australia: (a) each appellant and any intervenor file and serve by ……. full written submissions; (b) each respondent file and serve by ……. full written submissions; and (c) each appellant and any intervenor file and serve by ……. full written replies. Northern Territory 12. In so far as they relate to the issues concerning land and waters in the Northern Territory: (a) each appellant file and serve by ……. full written submissions; (b) each respondent and any intervenor file and serve by ……. full written submissions; and (c) each appellant file and serve by ……. full written replies. HEARING Western Australia 13. In so far as it relates to the issues concerning land and waters in Western Australia the hearing of the remitted appeals is to take place in Perth in ……. before the Full Court. Northern Territory 14. In so far as it relates to the issues concerning land and waters in the Northern Territory the hearing of the remitted appeals is to take place in Darwin in the week commencing ……. before the Full Court. APPEAL PAPERS 15. The following documents shall stand as the appeal books: (a) the set of original exhibits tendered at trial which will be shared by the members of the Full Court; (b) the Joint Appeal Book comprising 3 volumes used at the hearing of the original appeals and an additional volume or volumes containing the reasons for decision of the High Court, the Orders of the High Court and any other material as directed by the Registrar; (c) the CD-rom of the uncorrected transcript which was used at the hearing of the original appeals; (d) the 27 volumes entitled "Exhibits to which Appellants may Refer" used in the original appeals; (d) additional volumes entitled "Additional Appeal Material on Remitter" prepared in accordance with Orders 17, 18 and 19 which volumes shall include the transcript of any further evidence and exhibits received in accordance with these Orders. 16. By ……. each party making submissions in respect of the issues concerning the land and waters in Northern Territory serve on each other party a notice indicating which documents in the original hearing not already listed in the set of documents entitled "Exhibits to which Appellants may Refer" that may be referred to in the course of oral submissions to be made in the week commencing ……. . 17. By ……. the Registrar is to hold a conference at which the index of the additional volume(s) of the appeal books is to be settled. 18. By ……. the State shall file 4 copies of the Joint Appeal Book and 27 volumes referred to in Order 15(b) and (d); 19. By ……. the State shall prepare, file and serve the additional volumes referred to in Order 15(c). 20. Service of the documents referred to in Order 15(c) and (d) is dispensed with. 21. By ……. the Northern Territory is to: (a) prepare and file 4 copies of volumes entitled "Exhibits to which Parties may refer at hearing in ……." which contain those documents which notice was given pursuant to Order 16; and (b) serve an index to the documents contained in the volumes prepared and filed in accordance with Order 21(a). 22. By ……. each party making submissions in respect of the issues concerning the land and waters in Western Australia serve on each other such party a notice indicating which documents in the original hearing (not already listed in the set of documents entitled "Exhibits to which Appellant may Refer") will be referred to in the course of oral submissions to be made in the week commencing ……. . 23. By ……. the State is to: (a) prepare and file 4 copies of volumes entitled "Exhibits to which Parties may refer at hearing in ……." which contain those documents of which notice was given pursuant to Order 22; and (b) serve an index of the documents contained in the volumes prepared and filed in accordance with Order 23(a). FURTHER ORDERS 24. The Orders made by Lee J in proceeding WAG 6001 of 1995 restricting access to certain passages of transcript and certain exhibits to certain persons of a particular gender, be varied so as to allow legal representatives of the same gender and now representing a party to have access to that material. 25. Orders 1(b), 2 and 3 made 14 March 2003 be vacated. 26. The matter is listed for a further directions hearing on ……. . 27. Liberty to any party to apply. 10 I intend to make orders in the form of 1 to 7 in the above draft immediately in order that the steps referred to therein can be undertaken in the near future. The dates to be inserted in the draft order are as follows: Order 1 - 13 June 2003; Order 2 - 27 June 2003; Order 3 - 31 July 2003; Order 4 - 23 June 2003; Order 5 - 28 July 2003; Order 6 - 18 and 19 June 2003; Order 7 - 28 July 2003. 11 As to the remaining orders, I indicate that the appeal bench is available to hear any contested application to amend the notice of appeal, cross-appeal, or contentions, or any application to lead further evidence on 31 July 2003. The Court is also available to hear any further evidence, and the Northern Territory appeal, in the week commencing 29 September 2003. The Court is also available to hear the substance of the appeal in relation to the West Australian lands in either November 2003 or February 2004. 12 If any party has a strong objection to any of these dates that party should indicate that objection and the reasons for it by a submission in writing to be filed and served by 10 June 2003. The dates have been selected by reference to the availability of the three new members of the Court, and with reference to the already indicated availability of the parties. Obviously, with so many parties it is not possible to please all of the parties all of the time. Given the history of the application, it is important to restrict any objections to problems that are sufficiently serious to warrant revisiting the setting of dates. Once the date of hearing the appeals is fixed, the times for filing submissions, and for taking other preparatory steps, will be determined.

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Judgment (52 paragraphs)

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