Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia

Solicitors for the Second and Third Applicants: Mr G Young of Yamatji Marlpa Aboriginal Corporation

Counsel for the Respondent: Mr G Ranson

Solicitors for the Respondent: State Solicitor's Office

ORDERS WAD 490 of 2016

IN THE MATTER OF A SEPARATE QUESTION PURSUANT TO ORDERS MADE ON 23 FEBRUARY 2018

BETWEEN: ROY TOMMY & ORS (YINHAWANGKA GOBAWARRAH) First Applicant IVAN SMIRKE & ORS (JURRURU #1) Second Applicant IVAN SMIRKE & ORS (JURRURU #2) Third Applicant

AND: STATE OF WESTERN AUSTRALIA & ORS Respondent

JUDGE: MORTIMER J DATE OF ORDER: 6 November 2018

1. The interlocutory application filed by the Yinhawangka Gobawarrah people for vacation and re-listing of the trial of the separate question and associated programming orders in this proceeding is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 This is an application by the Yinhawangka Gobawarrah people to vacate the current trial dates and programming orders for the trial of a separate question in this proceeding, and to relist and re-program the matter on dates that are several months later in 2019. The trial of this matter is currently listed for 8 to 19 July 2019 and 1 and 2 October 2019 for on-country evidence from Yinhawangka Gobawarrah and Jurruru witnesses and expert evidence respectively. The interlocutory application was filed on 6 September 2018, and a hearing in relation to it, and several other interlocutory and case management issues in the proceeding, was held on 17 September 2018. 2 On 25 September 2018, the parties were informed that the application was refused, and they were required to continue to comply with the current timetable. An email setting out a short summary of the Court's reasons for this was sent to the parties and the parties were asked whether they required formal reasons, which the Yinhawangka Gobawarrah people confirmed they did. These are those reasons, together with formal orders reflecting them. 3 The interlocutory application was supported by two affidavits from Mr Ambrose Cummins, the solicitor on the record for the Yinhawangka Gobawarrah people. Mr Cummins is an experienced native title practitioner, both at native title representative bodies (NTRBs) and in private practice. Mr Cummins was also involved as a legal representative for the Yinhawangka Gobawarrah people in previous proceedings over the same claim area, which I discuss below. Also read was an affidavit from Mr Simon Hawkins, the Chief Executive Officer of Yamatji Marlpa Aboriginal Corporation (YMAC), the NTRB for the area in which both the Yinhawangka Gobawarrah people's and the Jurruru people's native title claims in this proceeding are located. There are no factual disputes relevant to the application, but the factual context is significant to the outcome. 4 The Jurruru people neither consented nor opposed the application. The State took the same position. There are, relevantly to the separate question, no other active respondents.

The history of the proceeding to this point 5 The separate question was stated by Barker J on 23 February 2018 in his role as case management judge for the Pilbara region. The separate question is stated in all three proceedings which cover the disputed overlap area: the Yinhawangka Gobawarrah native title claim (WAD490/2016), the Jurruru #1 native title claim (WAD6007/2000) and the Jurruru #2 native title claim (WAD327/2012). There is a relatively small portion of land in the very north of the Yinhawangka Gobawarrah claim area that does not overlap with either of the Jurruru claims. Other than that, the overlap between the Yinhawangka Gobawarrah claims on the one hand and the two Jurruru claims on the other, is complete. 6 At that time, following case management conferencing before a Judicial Registrar and on the basis of a consent minute put forward by the applicants in all three proceedings, his Honour made detailed programming orders to prepare the matter for hearing on the separate question. 7 It is appropriate however to say something about the history of native title claims over this area, and the length of the dispute between the Yinhawangka Gobawarrah people and the Jurruru people. 8 The Jurruru people (Part A) determination, made by McKerracher J on 1 September 2015 in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939, lies to the west of the overlap area. The Yinhawangka people Part A & B determination, made by Bromberg J on 18 July 2017 in Jones on behalf of the Yinhawangka People v State of Western Australia [2017] FCA 801, lies to the east of the overlap area. 9 The Gobawarrah Minduarra Yinhawangka claim (WAD6173/1998) covered the same area as the current Yinhawangka Gobawarrah claim and was originally lodged on 25 June 1997, and registered by the National Native Title Tribunal on 29 October 1999. The Jurruru #1 claim was filed in 2000. 10 In what is an all too common narrative for native title claims of that period, there followed many, many years where no real progress was made on the claims. 11 The level of conflict and disputation over this claim area is high. The Yinhawangka Gobawarrah claim group has had one native title claim dismissed, and their existing claim challenged, as I set out below. Mr Cummins deposes at [13] of his first affidavit: On 2 February 2016, at the Jurruru #1 and #2 applicants' urging, Barker J ordered that if the GMY applicant did not file and serve, by 30 June 2016, a properly authorised amended native title determination application in the manner specified in the orders, the GMY claim would be struck out pursuant to s 84C of the NTA. An interlocutory application was then made by the GMY applicant to, inter alia, extend the time allowed for authorising and filing the amended application in view of the need for further anthropological research, legal advice and discussions between Yinhawangka elders before the holding of any such authorisation meeting. The interlocutory application to extend time was dismissed: see Giggles on behalf of the Gobawarrah Minduarra Yinhawangka People v State of Western Australia [2016] FCA 792. I received instructions and made no attempt to hold an authorisation meeting to authorise amendments to the GMY claim in the terms ordered and hence the GMY claim was dismissed in accordance with the self-executing orders of Barker J made on 2 February 2016. 12 Thereafter, the Yinhawangka Gobawarrah authorised the making of a new claim, which was filed on 17 October 2016. It was over the same area, but as Mr Cummins deposes with some differences, such as the claim group description. This is the current Yinhawangka Gobawarrah claim.

The basis for the application 13 The basis for the current interlocutory application is the refusal by YMAC of a funding request made by the Yinhawangka Gobawarrah people. This is not the first time that YMAC has refused funding applications by the Yinhawangka Gobawarrah people concerning this claim area, as Mr Cummins' affidavit discloses, but I need not set out the history of funding applications in detail, other than to note it has been a long running problem for the Yinhawangka Gobawarrah people. 14 A funding application for the Yinhawangka Gobawarrah proceeding was first made to YMAC on 31 October 2017. As I understand it, at this time both the Jurruru #1 and Jurruru #2 claims were already being funded by YMAC. As Mr Cummins explains in his affidavit, there was some delay in lodging the application because the Jurruru people had brought a strike out application in relation to the Yinhawangka Gobawarrah claim over the overlap area, and there were some negotiations occurring about whether it was possible to resolve the overlap claim and avoid the need for a strike out application. 15 In summary (and this is taken from the internal review reasons to which I refer at [49] below, and which Mr Cummins did not suggest were inaccurate in this respect), the Yinhawangka Gobawarrah applicant sought funding: (a) to defend the strike out application brought by the Jurruru applicant, in the sum of $15,530; and (b) if the strike out failed, the Yinhawangka Gobawarrah applicant sought funding to prosecute the Yinhawangka Gobawarrah application through to trial and judgment, in the initial sum of $159,150 for priority work (anthropological research $90,000, solicitor fees and disbursements $54,500, counsel's fees and disbursements $14,650) (all sums inclusive of GST). 16 The funding application was refused on 17 November 2017. No reasons were given, and the Yinhawangka Gobawarrah people were advised of their entitlement to seek internal review. 17 Whether or not there is a legal obligation to do so, I interpolate here that as a matter of good public administration (these are public funds), one might expect a NTRB in the position of YMAC to give reasons for such a refusal, at the time of the refusal, and in a way that can be understood by the claim group members involved. Otherwise, resentment and a sense of unfairness (and possibly inaccurate speculation about the reasons) are predictable responses. 18 After a request from Mr Cummins, Mr Hawkins did provide reasons for the refusal, on 14 December 2017. Those reasons were not in evidence on this application. 19 Extensive correspondence then ensued, between Mr Cummins and YMAC, about the internal review process. This occurred over December 2017 and January 2018. 20 Meanwhile, negotiations having not produced any substantial result, the Jurruru strike out application had proceeded and on 22 December 2017, Barker J rejected it, allowing the Yinhawangka Gobawarrah claim to continue: see Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568. 21 Concerns of the Yinhawangka Gobawarrah applicant about the fairness of any internal review led to Mr Cummins being instructed to make inquiries of the Department of Prime Minister and Cabinet (DPM&C) about a direct application for funding under s 203FE(1) of the Native Title Act 1993 (Cth), rather than pursuing the internal review. Mr Cummins received a response to his inquiries in March 2018. It is not necessary to detail the response. 22 By this stage, Barker J had made the 23 February 2018 programming orders. In other words, the Yinhawangka Gobawarrah people had agreed to the listing of a separate question and to the programming orders for that hearing without YMAC's internal review process having been completed (or perhaps having even started), and with no indication of any direct funding from DPM&C. That is not a criticism, but it is a fact. 23 Mr Cummins sent an email to Mr Hawkins on 10 April 2018 about Barker J's programming orders, although I infer Mr Hawkins should have been well aware of them, since YMAC was funding the Jurruru applicants and is a party to the proceeding. 24 Mr Hawkins did not reply to Mr Cummins for a month. 25 When he eventually did reply, a meeting was arranged and occurred on 16 May 2018, in Perth. Mr Cummins met with YMAC lawyer Cameron Trees, who was at that time YMAC's acting Principal Legal Officer. After the meeting there was a great deal more correspondence about the internal review process, including, as the evidence shows, some debate about whether YMAC should assess the application on the basis that the Yinhawangka Gobawarrah's native title claim had "likely" prospects of success or "reasonable" prospects of success. This exchange of information continued until June 2018, with the Yinhawangka Gobawarrah people eventually being satisfied to instruct Mr Cummins to pursue the internal review process rather than any direct application to DPM&C. 26 The formal request for an expedited internal review was sent to YMAC by Mr Cummins, on behalf of the Yinhawangka Gobawarrah applicant, by a letter dated 5 June 2018. The assumption set out in the letter (as a result of discussion between Mr Cummins, Mr Trees and Mr Hawkins) was that YMAC could convene an internal review meeting in late June or early July 2018. 27 In that letter, Mr Cummins said (amongst other matters): There are a number of compelling reasons why the original YMAC board decision should be overturned and funding assistance provided. The Federal Court rejected the attempt by the Jurruru to strike out the Yinhawangka Gobawarrah claim. Justice Barker concluded (refer Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568 at [50]): This proceeding and the related Jurruru proceedings, which overlap, should be the subject of further case management with a view to the conduct of a trial as to who holds native title in the relevant claim area, at the earliest opportunity. This is a situation where it is clear that both the Jurruru and the Yinhawangka Gobawarrah should be assisted to prepare and present their connection evidence in relation to the overlap area. It would be very unfair and unjust to the Yinhawangka Gobawarrah claimants and their future generations if YMAC continues to assist only the Jurruru and not the Yinhawangka Gobawarrah. 28 To be clear, the request for internal review thus came seven months after the funding refusal, and around three months after Barker J's programming orders. 29 Mr Cummins also re-iterated his client's willingness to engage in negotiations to resolve the overlap dispute. However, as I understand the Jurruru position, which was re-iterated by senior counsel for the Jurruru people at the hearing of this application, the Jurruru refuse to negotiate with the Yinhawangka Gobawarrah on a native title-based outcome to the claims over the overlap area. As senior counsel put it at the hearing, the Jurruru people are "not in a position to agree that somebody else has native title in what they see as their country". 30 Mr Cummins' evidence reveals that YMAC was basically non-communicative with him after this correspondence, and certainly did not appear to be expediting very much at all. 31 Eventually the YMAC review meeting was scheduled for 19 July 2018, in Port Hedland, for a period of one hour, although Mr Cummins was told by one Ms Decinque from YMAC that it could be extended to two hours if necessary. The day before the meeting, on 18 July 2018, Mr Cummins was informed the meeting would be only for 30 minutes. The meeting ended up lasting an hour and twenty minutes. Mr Cummins did not suggest in his evidence that he and Mr Tommy, the first member of the applicant who was also in attendance, were not given a reasonable chance to present their arguments on the internal review. 32 At the end of the meeting, Mr Hawkins told Mr Cummins that YMAC intended to refer the decision to the next full YMAC board of directors meeting in late August 2018. Mr Cummins and Mr Tommy were unhappy about the additional delay this involved, and said so. 33 Most of the month of August came and went, with more correspondence, which need not be set out. 34 YMAC made a decision on 24 August 2018, affirming its refusal of funding to the Yinhawangka Gobawarrah people, but making an offer to facilitate a mediation between the Jurruru people and the Yinhawangka Gobawarrah people. Again, no reasons were given. I make the same observation as I have at [17] above. 35 On 27 August 2018, Mr Cummins asked for reasons for the decision, invoking the Administrative Decisions (Judicial Review) Act 1977 (Cth). The reasons were provided by YMAC on 7 September 2018. In those reasons, YMAC describes itself as a "legal aid provider", and after giving the history of the funding application and of the proceedings, concludes (at [35] of the reasons) that "the YG application is unlikely to succeed", stating this is the reason for refusing funding. I will not set out the reasons here, but the document goes on to express a series of opinions about the strength of the expert evidence, and the nature of the claims made. 36 The reasons then stated (at [41]): Bearing in mind the substantial quantum of funds sought, and the limitations on the YMAC budget with available funds for the 2018/19 financial year having been allocated to other projects, the directors were not prepared to accede to the funding application. 37 The reasons went on to explain that the YMAC Directors had decided to offer funding for a mediation. 38 Mr Cummins deposes that the Yinhawangka Gobawarrah people have instructed him to seek external review through DPM&C, and that he has been informed this process will take at least four months. Mr Hawkins agrees with that estimate in his affidavit. Mr Cummins deposes that the DPM&C review process: …will not be completed in time for funds to be allocated to enable the YG applicant to file Dr Vachon's expert report by 26 October 2018, nor for Dr Vachon to prepare a responsive report pursuant to order 4 of the Programming Orders, nor for the YG lawyers to undertake necessary work in relation to the Programming Orders. 39 An AD(JR) Act application is also foreshadowed by Mr Cummins as a step the Yinhawangka Gobawarrah people may decide to take, as well as the DPM&C review. His evidence is that such an application may take "at least" four months to complete, although I am unaware of the basis for such an estimate, which seems very short. 40 Mr Cummins also deposes to how the Yinhawangka Gobawarrah have used more than $50,000 of their own funds to enable Mr Cummins' firm to engage Dr Vachon to "carry out a substantial amount of anthropological research", and that Dr Vachon has: …conducted 57.5 days of research and report writing in response to his brief. He estimates that he needs to carry out approximately 8 more days work to complete his expert report for filing in the Court. Unfortunately, the YG do not have money that would allow Cross Country to pay Dr Vachon for the completion of his expert report. As a result, Dr Vachon has informed me that he has placed his work in the matter on hold, pending the resolution of funding issues. 41 This remained the position at the time of the hearing of the application. 42 Dr Vachon wrote a detailed letter to YMAC as part of the Yinhawangka Gobawarrah people's internal review application. That letter is exhibited to Mr Cummins' affidavit. It sets out in detail the work Dr Vachon has been doing. Given that these matters may be the subject of trial and determination, I do not set them out in these reasons. However, suffice to say Dr Vachon expresses a positive opinion, with a considerable level of confidence, about the prospects of the Yinhawangka Gobawarrah native title claim. I see no difficulty in reproducing the following part of Dr Vachon's letter: In my view as an independent expert anthropologist, based on my research to date, this is a situation that clearly warrants funding assistance being provided to both the Jurruru and the Yinhawangka Gobawarrah because both claim groups have serious claims to the overlap area which need to be fully researched and prepared. Funding to carry out this work will not only assist the Court but will also inform potential overlap resolution mediation between the respective native title claim groups. 43 However, even this objectively sensible statement, noting in particular the reference to the assistance the Court would be likely to derive from fully researched and prepared evidence on both sides, did not persuade the YMAC directors. 44 Mr Cummins deposes, and I accept, that he and counsel have performed a considerable amount of unpaid work, in light of the way the funding applications and decision-making by YMAC have progressed. However, his evidence is that: …in the absence of approved funding, Cross Country is not in a position to undertake the extensive amount of further work, or to incur the extensive amount of further expenses, required to prosecute the YG claim through to the completion of the hearing of the Separate Question. 45 Mr Cummins also deposes to what occurred in the proceeding of Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752, in which one applicant (the Sullivan Edwards applicant, which Mr Cummins represented, with Dr Vachon being retained as an expert) was unfunded. This was despite a number of funding reviews, including judicial review, and yet both the Sullivan Edwards and Yilka overlapping claim groups were successful in having their native title recognised. 46 Mr Cummins deposes: Cross Country is a small firm and is not in a position to undertake a lengthy native title trial on a speculative basis again. 47 He also deposes to other situations where a NTRB has funded more than one party where there are competing or overlapping claims. It may be accepted that this has occurred in the past, and continues to occur. Indeed, Mr Hawkins in his affidavit notes the same observations having been made, in the context of communications between DPM&C and Mr Cummins and YMAC, by Mr Wayne Beswick of DPM&C. 48 I turn now to the evidence of Mr Hawkins. He recounted much the same narrative as Mr Cummins, with less detail. Some of the time-frames were not as precisely delineated and for the detail, I have relied on Mr Cummins' evidence. Mr Hawkins spent some time in his affidavit rebutting what he considers to be the mistaken characterisation by Mr Cummins of YMAC's role in relation to the Jurruru applicant, and his references to YMAC having a conflict of interest. Mr Hawkins deposes: Mr Cummins' portrayal of YMAC as a legal representative or solicitor is misconceived. YMAC is a corporation, not a legal practitioner. It has no right to appear on behalf of a client in Court proceedings. YMAC does not possess, and has no right to possess, a practising certificate. Rather, legal representation for the Jurruru claimants is being provided by a solicitor and counsel funded by YMAC. The fact that the solicitor is also an employee of YMAC does not alter that legal characterisation. 49 Mr Hawkins is, of course, strictly correct in what he deposes to in these two paragraphs. However, the fact that Mr Young, who is the solicitor on the record for the Jurruru applicant in all three proceedings is an employee of YMAC is not without significance, certainly as to the appearance of a conflict of interest, if not the actuality of it. The appearance of a conflict of interest may arise in relation to whether YMAC, and its Board of Directors, can make truly impartial and independent funding decisions about the Yinhawangka Gobawarrah funding application (and the claim sitting behind it) when it has already decided to fund its own employee (who is on a salary one assumes, and therefore the funds are actually moving entirely within YMAC) to act as the legal representative for the Jurruru applicant. Some of what might be characterised as a possible conflict is generated by the very approach YMAC has outlined in its reasons on the internal review decision, where it descends expressly into the merits of deciding, as between the Jurruru applicant and the Yinhawangka Gobawarrah applicant, how strong it considers the claims of the Yinhawangka Gobawarrah applicant to be. This approach can, and has been, observed in other NTRBs, and in other proceedings. The challenges and difficulties the situation poses should not be ignored or dismissed. They are real. This Court is not called on in this application to make any determination about a conflict of interest but it is important to make it clear that I do not consider Mr Hawkins' description of how he sees YMAC's function means there is no potential issue at all about a conflict of interest in YMAC's decision-making. Whether or not the "legal aid" analogy used by YMAC in its reasons, and also by Mr Hawkins, is an apt one, is also not a matter for this Court to determine. 50 Mr Hawkins deposes that YMAC will abide the outcome of the DPM&C review.

The proposed new timetable 51 The Yinhawangka Gobawarrah people have sought that the Court's programming orders in relation to the filing of expert reports and the holding of the experts' conference be put back four months, and the other dates be put back two months. In other words, they seek a modified timetable which still has the matter going to trial later in 2019, with the on country hearing in September 2019 and the expert evidence in December 2019. Those new dates appear to have been calculated by reference to four month time-frames for the funding review and (possible) judicial review. 52 At the time of the interlocutory application, on the orders as they stood, the next major compliance date was 26 October 2018, which was the date for the filing of expert reports on which the Jurruru and Yinhawangka Gobawarrah parties intend to rely. In other words, this was when Dr Vachon's report was due. Responsive expert reports are due by 21 December 2018, and further responses (if any) are due on 15 February 2019. 53 These dates are proposed to be amended to 26 February 2019, 22 April 2019 and 14 June 2019 respectively. The expert's conference, which was to be held on a date after 22 February 2019, is now proposed to be on a date after 21 June 2019. 54 The first date on the current timetable for steps in relation to lay evidence is that by 8 March 2019, parties were to give notice of any intention to rely on preservation evidence, and on 12 April 2019 to give notice if any witness who has given preservation evidence is required to be recalled. These dates are proposed to be altered to 8 May 2019 and 12 June 2019 respectively. 55 Lay evidence witness proposals were due in March and April 2019 and these dates are to be altered to May and June 2019. Lay evidence (by the method of statement of the substance of evidence) is due on 8 March 2019. It is proposed to alter this to 8 May 2019. 56 Further variations are proposed to what are on any view an extensive set of programming orders initially made by Barker J, and revised by my orders dated 18 June 2018.

My reasons for refusing the application 57 In Agius v State of South Australia (No 4) [2017] FCA 361 at [84]-[122] I dealt at some length with authorities, both in and outside the native title jurisdiction, where adjournments had been sought, or variations to trial preparation orders sought, on the basis of a lack of funding. I refer to and adopt what I said in those passages, they remain my views. 58 At [84]-[86] I said: Determining where to draw lines in case management processes is not an exact science. The overarching purpose in s 37M(1) of the Federal Court Act is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The phrase "just resolution" does not appear alone, but rather in the context of the legislatively mandated attributes of quickness, inexpensiveness and efficiency. The focus on the prudent use of the tremendous public resources involved in running a court system is apparent. The Court must "facilitate" the achievement of that purpose through its case management, and its exercises of power and discretion under the Act and the Rules. As Edelman J pointed out in Hart v Deputy Commissioner of Taxation [2016] FCA 250 at [6], timeliness is an important aspect of this objective, as is the "efficient use of the judicial and administrative resources available for the purposes of the Court", this being a consideration emphasised by French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5]. Aon was a case about an adjournment. Effectively, that is the nature of the current application. The Court must do its best to reach a conclusion that is consistent with the overarching objective in s 37M of the Federal Court Act, while ensuring the active parties have a reasonable opportunity to present their respective cases. The latter requirement is not co-extensive with any party's insistence that it should be able to present a case whatever way a party chooses, and on the timetable the party wishes. If the resources of the civil justice system ever permitted or encouraged this approach (which I doubt), they certainly do not do so now. Existing authorities in the native title jurisdiction of this Court about the interrelationship between case management, judicial power and assertions of lack of funding, tend firmly against the application to delay the trial. 59 At [90]-[94] I referred to the decision of Jagot J in Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073, and respectfully adopted her Honour's findings and approach. I do the same here. 60 It can be accepted that through Mr Cummins the Yinhawangka Gobawarrah people have diligently pursued the funding of their native title claim, and their resistance to the Jurruru claims. They have been unsuccessful. They are left with the uncertainty of an external review and a possible judicial review. As Jagot J pointed out in Atkinson, the latter will deal only with the legality and not the merits of YMAC's decisions. 61 Accordingly, I approach this application on the basis that a lack of funding (irrespective of the best efforts of a party) is generally not a sufficient reason to alter trial dates, or trial programming orders, especially where the proceeding concerns claims that are of some age, and where there is no clear evidence whether the funding situation is likely to change in the near future. Each application must be considered in the context of the particular circumstances of the proceeding (or proceedings) concerned, but there is a clear trend in other authorities of this Court, and also outside native title, to suggest that the Court should not allow a party's lack of funding to govern how cases are managed towards a resolution, in accordance with the Court's statutory obligations.

The position of Yinhawangka Gobawarrah's current legal representatives and expert 62 The Court understands the difficult position the Yinhawangka Gobawarrah people's legal representatives are placed in because of YMAC's decision. It also accepts both counsel and Mr Cummins may already be acting without fee, if the Yinhawangka Gobawarrah people's other sources for funding have been used up. 63 Counsel indicated that she and Mr Cummins were prepared to act on a pro bono basis in any AD(JR) Act application. I confess to some surprise about this, in the sense that the amount of work involved in preparing and arguing a judicial review is not insignificant. It is unclear to me why, if legal representatives are prepared to act for no fee, time would not be more productively spent on the native title proceeding itself, but that is a matter for those legal representatives. 64 It appears Dr Vachon is not prepared to perform any further services without his fees being paid. Although it is a not uncommon aspect of the performance of services in the legal profession that lawyers act without fees, I do not know, and there was no evidence about, whether the same situation exists in the anthropological profession. I infer from what the Court has been told about the Yilka matter that Dr Vachon may in the past have done work without fees. In any event, Dr Vachon's position has been made clear in Mr Cummins' affidavit. His work is "on hold" until the issue of fees is resolved - I infer, resolved favourably. Otherwise, I infer, he will not complete his work. 65 At the hearing I asked counsel for the Yinhawangka Gobawarrah people if, since on the evidence there were only eight days' work left to do, Dr Vachon was not prepared to complete his report, or even to pull together what he had done so far. After all, he expressed a very clear and confident opinion in his correspondence to YMAC in July 2018. 66 Counsel informed the Court that Dr Vachon was not prepared to complete the report or proceed with further work until funding was guaranteed as he had not yet been paid for part of the work already completed and, as it currently stands, would not be paid for any further work. 67 Dr Vachon also made an affidavit upon which the Yinhawangka Gobawarrah people relied to oppose the Jurruru strike out application: see Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia [2017] FCA 1568 at [38], Barker J. 68 However, I accept he appears to have, so to speak, "drawn a line" in relation to his work on this claim. I do not criticise Dr Vachon for that position, but it is important to be clear about what the evidence discloses his position to be. 69 Accordingly, I have considered the application on the basis that Dr Vachon will not complete his work, which Mr Cummins has deposed consists of eight more days of work, Dr Vachon having completed 57.5 days of work.

Relevant findings 70 I make the following findings, which I consider to be of importance on the present application: As a matter of fact, the Yinhawangka Gobawarrah applicant has no funding for legal representation from YMAC. As a matter of fact the Yinhawangka Gobawarrah applicant has exhausted the other source of monies it used for some time where there was no funding from YMAC. There is no evidence about the financial position of those individuals who constitute the Yinhawangka Gobawarrah applicant, nor of claim group members. There is no evidence about whether all or some of the claim group members have access to any funds which could be used, for example, to pay Dr Vachon to complete his work, or pay for some or all of the trial preparation steps pending the outcome of the DPM&C review. Nor is there any evidence whether they are prepared to do so, even on the basis of some kind of advance, repayable if funding is awarded through the DPM&C review. Dr Vachon will perform no further anthropological work unless he is paid. On the evidence there is no present source of funds to pay him. Therefore his work may remain incomplete. The Yinhawangka Gobawarrah applicant's current legal representatives are unable to continue to work on preparation for trial of the separate question without fee, although they are prepared to do so for any AD(JR) Act application about the question of funding. There is an estimate that the DPM&C review may be completed in four months, but it is no more than that. In fact, the email from Mr Beswick at DPM&C states (emphasis added): With regard to the external review process, it is not the department's practice to conduct 203F8 reviews itself. Ensuring these reviews are conducted independently to the highest standards of integrity and probity is essential in maintaining confidence in the external review process. Noting the statutory timeframes that apply under 203F8(2)(b) (refer 203FBA(5) and 203FBA(7)], the minimum timeframe for conducting an external review, including procuring the appointment of a person with relevant skills and knowledge, is generally around four months. Section 203FB(2) requires the Secretary to appoint a person to conduct the review "as soon as practicable" after receiving the application. At the time of hearing, there was no evidence that any person had been appointed. Section 203FBA(5) requires the person appointed to give her or his report to the Secretary within 60 days after the day on which he or she was appointed, or within such other period as the Secretary allows (whether or not the 60 days have expired). That is a little over two months. By s 203FBA(7), the Secretary must, within a month of receiving the report, either affirm the decision under review or "make funding available". There does not appear to be any express power in the Secretary to extend this consideration period. In other words, the 60 day period does not start running until a person has been appointed to conduct the review. As I have noted, at the time of hearing the Court had no evidence whether that appointment had occurred. There can be no indication, one way or the other, about what the outcome of the external review application might be, although YMAC has said, through Mr Hawkins, that it will abide the outcome. I find that means it will fund the Yinhawangka Gobawarrah applicant if that is what the external review decides should occur. I infer, from these facts, that if the external DPM&C review is unsuccessful, the Yinhawangka Gobawarrah people will effectively be without legal representation, although there is no evidence about the circumstances in which Mr Cummins and counsel will consider their retainer as legal representatives at an end, and there has been no withdrawal of either Mr Cummins' firm as the legal representative on the Court record for the Yinhawangka Gobawarrah people, nor of counsel. 71 On the basis of those factual findings, the following matters led me to the conclusion that the current trial timetable should be maintained.

The assumptions underlying the new proposed timetable 72 The proposed new timing is based on the assumption that the DPM&C review will be completed by approximately February 2019. 73 I am not satisfied there is sufficient evidence for the Court to act on the basis that will be the case. There was, as I have noted, no evidence at the time of hearing whether any person had been appointed to conduct the review. That person, once appointed, has a minimum of 60 days to complete her or his report. The Secretary may extend that period. Given that the current review will run over the Christmas and New Year break, the possibility of an extension is far from fanciful. Further, Mr Beswick's statement to Mr Cummins was that the reviews take "a minimum" of four months. 74 In my opinion, the time likely to be taken for the review is not sufficiently certain for the Court to fix new dates for the programming orders based on the assumption that the review will be completed in four months. 75 Further, and more critically, the interlocutory application is based not only on an assumption that these time-frames can be adhered to, but that the external review application and/or any judicial review will be successful. 76 The re-fixing of the time-frames assumes that funding will be granted and the Yinhawangka Gobawarrah people will continue to be legally represented by the solicitors and counsel who have represented them to this point. 77 If the review is completed within the estimated time but is not successful, the Yinhawangka Gobawarrah people will be in the same factual position in four months that they are in now: namely, that they will need to either find other sources of funds to pay Dr Vachon and their legal representatives, or some or all of those people may need to reconsider whether they will act without fee, or the Yinhawangka Gobawarrah people will have to prosecute their position on the separate question as self-represented litigants. 78 However, there will have been considerable disruption to the current timetable, including for other experts, and not insignificant further delay, all for the Yinhawangka Gobawarrah people to be in the same position as they are now. 79 Alternatively, and again not fancifully, the review could take longer than four months to complete, the timetable may need to be altered again because of the time the review is taking, and then the review might still be unsuccessful. 80 Based on the findings I have made above, in my opinion, compliance with the proposed modification to the timetable is not attended with sufficient certainty to grant the orders sought.

The age of the dispute over the overlap area 81 Another important consideration is the age of this dispute, which is not reflected in the date that each of the three proceedings were commenced. The Yinhawangka Gobawarrah people, albeit with apparently a differently composed claim group, first claimed native title over the overlap area in 1997, with registration occurring in 1999. The Jurruru #1 claim was lodged in 2000. The Yinhawangka Gobawarrah people have been actively claiming native title over some or all of this land for more than 20 years, the Jurruru for only slightly less than that. 82 It is well past time for some certainty, and finality, about who holds native title over this country, and the nature of the rights which make up that native title, and for the separate question to be determined.

Material available to the Yinhawangka Gobawarrah applicant if self-represented 83 Next, this is not a case where the Yinhawangka Gobawarrah people, if compelled to participate in the separate question without legal representation, will have to start from scratch in their presentation of material. There is in fact a considerable amount of material already on the Court file which contains material likely to form part of the Yinhawangka Gobawarrah applicant's case. The following list is not exhaustive, but the Court's file includes: Affidavits from Nancy Tommy, Roy Tommy, Eric Galby and Mary Mills in support of the original s 61 application. An affidavit filed by Roy Tommy in support of an interlocutory application for an order joining the applicants in the Yinhawangka Gobawarrah proceeding to the Jurruru #1 and Jurruru #2 proceedings. Affidavits from Roy Tommy and Nancy Tommy in opposition to the strike out application. These three sets of affidavits all contain substantive evidence which may be relevant to the separate question. An affidavit from Dr Vachon on the strike out application. This is also substantive expert evidence. A joint statement of facts and issues filed in May 2018. A statement of issues facts and contentions on behalf of the applicant in the previous Yinhawangka Gobawarrah claim (WAD6173/1998). Several sets of submissions setting out how the Yinhawangka Gobawarrah people's claims are put, some filed for example in relation to the strike out application. Preservation evidence given by Nancy Tommy in the GMY proceedings in May 2016. There is also the following statement in Barker J's reasons on the strike out application: The 1999 ethnographic research materials annexed to the affidavit of Ambrose Cummins dated 21 June 2016. These materials include highly relevant video recordings of senior Yinhawangka elders, M Tommy (now deceased), Jambu Giggles and A Smith (now deceased), which provide detailed and persuasive evidence supportive of the YG claim. The Jurruru expert, Dr McGrath, as an independent expert, will be able to assist the Court in formulating the particular points of difference between the two claims, from an anthropological perspective. The Court can also expect the Jurruru applicant's legal representatives to assist the Court in framing the particular evidentiary and legal issues which present themselves on the separate question. The Court is confident it will secure a similar level of high quality assistance from the State. 84 Although for any party, being self-represented can appear to be a huge and unmanageable task, the task is not as formidable for the Yinhawangka Gobawarrah applicant as it might be if this matter were, so to speak, freshly issued with no material on file at all. 85 It will be possible to modify the present orders, and pare them back to the acceptable minimum, to make them achievable in terms of compliance for the Yinhawangka Gobawarrah applicant, if self-represented. The orders were drafted on the assumption both parties were very capably legally represented. If that is not the case, they can easily be modified. 86 The Court has a duty to assist self-represented litigants in terms of process, and that will occur. The Court conducts a very large number of hearings where self-represented litigants participate, including people without functional English, in cases where a great deal is at stake for those litigants. It is a regrettable reality of the present cost of legal services in Australia, and the restrictions on public funding for legal services. 87 Of course, it is far from desirable for the Yinhawangka Gobawarrah applicant to have to conduct this matter without legal representation. However, if that is the position, the Court and the other parties will manage, and will do so with the procedural fairness to the Yinhawangka Gobawarrah people which is owed to them.

Witness availability 88 I have also taken into account the effects of further delays, if the timetable were modified, on witness availability. It was not a major factor in my reasoning, but it is a matter of which I am conscious, for the following reasons. There is no evidence about how many of the witnesses the Yinhawangka Gobawarrah people and the Jurruru people would have proposed to call to support their claim are still able to give evidence. There is no evidence how many have passed away, or how many may be too ill or infirm to give evidence. However I consider there is ample foundation to take judicial notice of the terrible circumstance of health and life expectancy for Indigenous people, in finding that at least the oral evidence of some people has been lost, even if some affidavit material may be available. There has already been preservation evidence taken, and this confirms my view. Any further significant delay is likely to put in greater jeopardy the Court's access to the best evidence about the Yinhawangka Gobawarrah people's and the Jurruru people's claims, and to deny the Yinhawangka Gobawarrah people and the Jurruru people the ability to have their elders participate as fully as possible in the prosecution of their claims.

The Court's availability 89 As I informed the parties at the hearing of the application, the reality is that the modified trial dates cannot be accommodated in my docket for 2019. 90 Therefore, the reality of the application is that if the trial dates and programming orders were to be modified, they would be modified to the extent that the two trial dates (for on country and expert evidence) would occur in 2020, if the matter were to stay in my docket. That is far too much delay. 91 I expressed doubt that the separate question trial could be accommodated in another judge's docket either, even if the matter were to be transferred. However that would be to impose a significant task on another trial judge, at a relatively late stage when I now have some familiarity with the matter, when the operation of the native title case management systems, and the docket system, have made this matter my responsibility, and in my docket. All judges of this Court are extremely busy, juggling the competing demands of trial and appellate hearings, case management and timely judgment writing. 92 While the Court does its best to accommodate parties in relation to programming, that accommodation occurred in February 2018 by the orders of Barker J setting out an 18 month timetable to the first portion of the trial on the separate question, and then by the allocation of the matter to my docket on the basis that I had space in my 2019 timetable to accommodate the programmed dates. 93 If I were to modify the timetable substantially on the assumption that another judge might be able to hear the separate question in September and December 2019, and other judges were also to start doing that in cases where for one reason or another one party could not meet an existing trial date and trial timetable, the Court's case and docket management systems would become unworkable, and would depart from the fundamental principles on which they are based. 94 The Court's hearing commitments, and the impact of adjournments or modifications of trial timetables on other litigants, is a matter to which the High Court recently referred in UBS AG v Tyne [2018] HCA 45 at [45], in the context of an appeal dealing with the power to stay proceedings as an abuse of process. I refer to this passage because the appeal to the High Court was from orders of the Full Court of this Court, and the High Court's comments therefore bear directly on this Court: The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it. 95 I do not suggest that the somewhat critical tone of the passage (because the subject matter was an abuse of process claim) has any application to the present situation of Yinhawangka Gobawarrah people. The point is the part underlined: once trial dates are set, especially a long way in advance, so that other trial dates in other proceedings are set around them, there is an inevitable flow on effect to other litigants in other proceedings from any disruption to the trial dates as fixed. It is the fact, for example, that other parties in other proceedings in my docket have asked for dates in July and October of 2019 and have been told there are no available dates, because of this trial. Those parties have had to accept trial dates and programming orders outside those times. They now have trial dates and programming orders that are fixed, and it would be highly disruptive to ask other litigants in other matters to move their arrangements. Yet other parties in other proceedings have been listed at later times, because no earlier times were available. All litigants are entitled to some predictability and certainty about their trial process. The Court is also, where on country hearings are involved with significant budgetary impact, entitled to plan its allocation of resources and to expect those plans generally to be adhered to. Budgetary considerations are an integral part of the functioning of a Court such as this in contemporary Australia, especially with on country hearings. The Court is committed to such hearings, but it would be wrong to ignore the budgetary considerations which accompany them. 96 I accept, as I have noted already, that all these statements of general principle always come to be applied to the particular facts of a given case, and that individual circumstances of individual cases may justify other factors or interests taking precedence over these kinds of matters. However, the present application presents starkly the real consequences for the management of a trial docket which is posed by an application such as this.

An agreed position 97 The orders made by Barker J in February 2018 were made with the agreement of all active parties. The Yinhawangka Gobawarrah applicant agreed to those orders at a time when it knew, and its legal representatives knew, it had no favourable decision on funding from YMAC. The history of this matter did not give, objectively, any particular cause to suppose YMAC was going to fund the matter, whatever one may think about the rights or wrongs of that position. 98 I accept the Yinhawangka Gobawarrah applicant's legal representatives may have hoped that YMAC was persuadable, would be fair and reasonable (as the Yinhawangka Gobawarrah people saw what was fair and reasonable), and perhaps would be prodded into providing funding because the Court had made programming orders. None of those hopes have turned out to be well founded. 99 Thus, the position in February 2018 was the same position as that which existed at the time of this interlocutory application. The Court is not altering the status quo by refusing this application.

Any AD(JR) Act application and its relevance 100 As I understood the Yinhawangka Gobawarrah people's proposal, any AD(JR) Act process would also be completed in no less than four months: ie no earlier than February 2019. As I have noted earlier, there is no indication of how that estimate was arrived at, especially if it is said to include delivery of judgment. It seems very short to me. 101 I am not prepared to proceed on the basis that a judicial review application would take a commensurate amount of time to the DPM&C review, noting that no judicial review application had been issued at the time of the interlocutory application. In my opinion it may be considerably longer than four months, and ultimately the time it takes will not be within the control of the Yinhawangka Gobawarrah people, because it will depend on the Court's availability to hear the matter and then the other commitments of the docket judge in terms of when a decision can be prepared. No doubt best efforts would be made to give the proceeding (and delivery of judgment) such expedition as the Court thought appropriate - but what that expedition might look like in the context of the other litigation which needs to be attended to has some considerable speculation attached to it. 102 Further, and centrally, in a judicial review, the usual orders would be that the decision under review be set aside and the decision-maker be required to perform the decision-making task again, according to law. That process will clearly take longer than four months.

The level of disputation between the parties 103 There are three interlocutory decisions by Barker J related to these three proceedings. I have already referred to the Jurruru strike out application with respect to the Yinhawangka Gobawarrah proceeding. Then there is Smirke on behalf of the Jurruru People v State of Western Australia [2018] FCA 101, in which the Yinhawangka Gobawarrah people sought to strike out the Jurruru claims, which failed although they were successful in having orders made requiring properly authorised applications under s 61 of the Native Title Act. Then there is Smirke on behalf of the Jurruru People v State of Western Australia [2017] FCA 825 in which the Yinhawangka Gobawarrah people sought injunctions to restrain Mr Stephen Wright SC from acting as counsel for the Jurruru people, on the basis that he was briefed by the solicitors for the applicant in the Yinhawangka Part A and Part B claims to represent that party in negotiations with the mining company, BHP, regarding a native title agreement, and then in 2014 in relation to the taking of preservation evidence: see [14] and [16] of Barker J's reasons. That application was refused. 104 The legal costs of each application would have been significant, as would have been the time taken in preparation. Questions might well be asked about the proportionality of the time and legal costs spent on all of these matters, on both sides. 105 The money that the Yinhawangka Gobawarrah had, independently of YMAC funding, would have gone some, if not the whole, way towards allowing Dr Vachon to be paid to finish his report. There is no evidence whether that money has been spent on the interlocutory applications, or what it has been spent on. However, I do take into account that choices have been made by the Yinhawangka Gobawarrah applicant about how money has been spent. In some cases (such as the strike out application by the Jurruru people), the Yinhawangka Gobawarrah people have no doubt been compelled to find money for legal fees, in order to defend the very existence of their claim, and from the group that YMAC chose to fund. 106 The matter had come very close to being resolved, several years ago. The Court's records show that on 17 October 2012, orders were made referring the GMY application and the Jurruru applications to a confidential settlement conference before Registrar Trott to discuss the resolution of the overlap between the claims. This confidential conferencing process continued throughout 2013 and 2014, until it was terminated by Registrar Trott in November 2014. At this point, it was referred back to general case management before Registrar Eaton. 107 Then, in 2015, Part A of the Jurruru #1 application was ultimately determined by consent in Smirke on behalf of the Jurruru People v State of Western Australia [2015] FCA 939. 108 In relation to Part B (which is the overlap area), Registrar Eaton was informed that negotiations had been fruitful, and that legal representatives for the Jurruru and GMY (at that point, YMAC and Chalk & Fitzgerald, respectively) would be recommending an Indigenous Land Use Agreement to their clients to address the intra-Indigenous issues between the claim groups. What was contemplated was that when the ILUA was authorised in early-2015, and registered, the (then) GMY claim would be discontinued and a new Jurruru #2 application would be filed. However, and there is no need to address the details, this proposal did not come to fruition. The retainer of Chalk & Fitzgerald was terminated by the GMY applicant and Registrar Eaton was informed by the new GMY representative that the GMY applicant was not ready to agree to the ILUA. Despite the Registrars' further attempts to move the proposal forward, that did not occur and by the middle of 2015 it was clear there would be no agreement on the proposed ILUA in the foreseeable future. 109 A more recent example of the continued adversarial attitude taken by the parties, and the likely legal costs and delay associated with it, is the parties' report to the Court dated 15 May 2018, ahead of a case management hearing on 12 June 2018, which the Court asked the parties to prepare to explain the delay in filing an agreed statement of facts. What that report reveals is a highly adversarial process, all correspondence based, with no-one apparently picking up the phone and talking to anyone else, and no proactive steps such as early meetings to try and iron out disagreements on facts, and no proactive use of the Registrar assigned to this proceeding. 110 The Jurruru applicant and the Yinhawangka Gobawarrah applicant, and their legal representatives, appear to be deep in their trenches, and a different approach moving forward might be more appropriate, although I accept that YMAC's decision-making has not made the path of this separate question a straightforward one. The use of public funds is in issue, through YMAC's funding of the Jurruru applicant, its own role as a party, through the use of the Court's resources, and through the participation of the State of Western Australia. The Yinhawangka Gobawarrah applicant also wishes to access public funds. The requirements of s 37N of the Federal Court of Australia Act 1976 (Cth), including the obligations imposed on parties and their legal representatives, should be borne firmly in mind. Those obligations apply equally, although obviously in context, to native title proceedings as they do to any proceeding in this Court. 111 At present, based on previous decisions, the affidavit material, and what I have seen of the attitude of the parties especially at the last case management hearing (including on some of the other issues such as discovery), I have no confidence that an adjournment of the current trial dates would do anything more than spur the parties into further disputation with each other. That is their default position, and it is regrettable. This is not only, or even predominantly, a criticism of the lawyers, whom I assume have been acting on instructions. Each native title applicant (for Jurruru and for Yinhawangka Gobawarrah), and each claim group (for Jurruru and Yinhawangka Gobawarrah), need to start exercising more responsibility and proactivity about finding compromise positions to move these proceedings forward with a better level of efficiency and cost effectiveness than has been shown in the past.

The approach I propose to take 112 The Court is not insensitive to the position of the Yinhawangka Gobawarrah people. The refusal of this application does not necessarily mean that no flexibility can be applied in the future to the timetable for the separate question. 113 However, the Yinhawangka Gobawarrah applicant will need to prepare for trial on the timetable as it currently is. Therefore, the Court expects that whatever material is available from Dr Vachon's work, and any other material, should be filed as much as possible in accordance with the orders. Registrar McGregor can assist the Yinhawangka Gobawarrah applicant if it is self-represented, to the extent consistent with the Court's independence. 114 The Jurruru applicant is expected to comply with the timetable as it currently exists. 115 The trial dates will remain as they are. 116 At the time of informing the parties by email of the Court's conclusion on the application, the Yinhawangka Gobawarrah applicant and YMAC were encouraged to consider availing themselves of the Court's mediation facilities, through the Registrar, to see if a more modest funding request might be approved by YMAC. I understand steps have been taken in this regard, and that is positive. 117 The parties were informed, and it remains my view, that if the external review is successful, or other funding is secured so the Yinhawangka Gobawarrah applicant can be legally represented, then once funding is secured, the Court will entertain another adjournment application and variation to the programming orders if necessary. It may be that the orders can be pared back to accommodate less steps and thus still maintain the current trial dates. It may be that the trial dates can be maintained with some further work with Registrar McGregor on what can be agreed as not in dispute. 118 However, any such modifications would depend very much on the evidence presented at the time, and - as I have made clear - on the actuality of funding having been made available, and the more certain position that would prevail as a result. Otherwise, the matter will proceed on the current timetable.

Concluding remarks 119 The apparently one-sided approach to funding decisions taken by YMAC, consistently in favour of the Jurruru people, has no doubt not assisted to entrench a level of hostility. Indeed, it is likely to have exacerbated the feelings of ostracism and unfairness in the Yinhawangka Gobawarrah people, in particular when it is this Court's role, not that of a NTRB, to determine which people are, or are not, able to prove native title in accordance with the Native Title Act. 120 However, the funding decision by YMAC is what it is, and the Court and the Yinhawangka Gobawarrah applicant must deal with that reality. The whole point of Barker J's programming orders, after the unsuccessful strike out application, was to ensure the parties acted on the fact of a dispute that the Yinhawangka Gobawarrah and Jurruru peoples could not resolve themselves, and therefore the Court has to resolve. Subject to any actual and substantial changes in circumstances, that is what should occur, on the timetable as set. 121 After these reasons were prepared, and while they were being finalised, the dates for filing of expert evidence, to which I have referred above, fell due. The Yinhawangka Gobawarrah applicant provided chapters of Dr Vachon's work to the legal representatives for the Jurruru people, and to the judicial registrars involved in preparing for the experts' conference, stating by email that they were: …incomplete draft chapters of Dr Vachon's expert report for the purpose of the overlap mediation and the 7 & 8 November experts conference. These incomplete draft chapters are confidential and privileged, and are being provided for these limited purposes only, and formal Court orders in this regard may be sought in due course. 122 The Jurruru applicant filed Dr McGrath's report a few days late, but it is now also filed. Thus, there has been as much compliance as could be achieved with the Court's current time-frames, and it is clear that both the Yinhawangka Gobawarrah people and the Jurruru people are using their best endeavours to prepare for the hearing in July 2019. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.