Ben Ward & Ors on behalf of Miriuwung Gajerrong Peoples v Western Australia & Ors [1997] FCA 366 (14 May 1997)

C A T C H W O R D S

APPEAL - leave to appeal - practice and procedure - appeal from interlocutory judgment - native title claim - directions orders made to exclude parties, their legal representatives and anthropologists from hearing of "gender restricted" evidence from witnesses of different sex - further direction that access be similarly refused to transcript of evidence or other record made of such evidence - recent decision by Federal Court Judge in another native title application doubting Court's power to make such orders - whether decision attended with sufficient doubt - whether substantial injustice would result if leave were refused (supposing the decision to be wrong) - whether matters of importance raised by proposed appeal - leave granted.

Native Title Act 1993 (Cth) ss.82(2), 85

Judiciary Act 1903 (Cth) s.78

Constitution Chapter III

Thomas Borthwick & Sons (Pacific Holdings) Ltd & Ors v. Trade Practices Commission (1988) 79 ALR 171

Decor Corporation Pty Ltd & Anor v. Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

In Re the Will of F.B.Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318

Cokerill & Ors v. Westpac Banking Corporation (Federal Court of Australia, Drummond J. unreported, 7 April 1997, Judgment No. 241 of 1997)

Yarmirr & Ors v. The Northern Territory of Australia & Ors (Federal Court of Australia, Olney J. unreported, 15 April 1997, Judgment No. 274 of 1997).

Brimaud v. Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, Equity Division 19 September 1988)

Darling Harbourside (Sydney) Pty Ltd v. Sanirise Pty Ltd (Full Court, unreported, 17 May 1996, Judgment No. 582 of 1996)

BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES v. THE STATE OF WESTERN AUSTRALIA & ORS

No. WAG 6001 of 1995

CARR J

14 MAY 1997

PERTH

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA ) No. WAG 6001 of 1995

DISTRICT REGISTRY )

GENERAL DIVISION )

B E T W E E N : BEN WARD & ORS

ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

Applicants

- and -

THE STATE OF WESTERN AUSTRALIA & ORS

Respondents

CORAM: CARR J

DATE: 14 MAY 1997

PLACE: PERTH

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The first respondent be granted leave to appeal against the orders in paragraphs 10, 11, 12 and 13 of the orders of Lee J made on 11 April 1997.

2. The costs of this application be reserved to the Full Court which hears that appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA ) No. WAG 6001 of 1995

DISTRICT REGISTRY )

GENERAL DIVISION )

B E T W E E N : BEN WARD & ORS

ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES

Applicants

- and -

THE STATE OF WESTERN AUSTRALIA & ORS

Respondents

CORAM: CARR J

DATE: 14 MAY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

Introduction

This is an application by the first respondent, the State of Western Australia ("the State") for leave to appeal from interlocutory orders made by Lee J on 11 April 1997. The principal application is for a determination of native title to large areas of land and sea in the Kimberley district of Western Australia and adjoining parts of the Northern Territory. The Court's jurisdiction to hear and determine the application is conferred by Part 4 of the Native Title Act 1993 (Cth) ("the Native Title Act"), and in particular s.81 of that Act. The principal proceedings in this Court started on 7 February 1995 when the application to the National Native Title Tribunal was referred to the Court under s.74 of the Native Title Act 1903 . It may assist in understanding the State's motion if I were to give (which I shall) a short history of the relevant interlocutory orders. The particular matter concerns the taking of what has been described as "gender-based evidence that is subject to cultural or customary concerns". I shall refer to that evidence as "gender restricted evidence" for short. On 21 February 1997, at a directions hearing before Lee J, the first applicants (Mr Ward on behalf of the Miriuwung Gajerrong Peoples) and the State each handed up to the Court a draft "protocol" for the conduct of any hearings in which gender restricted evidence was to be led. There were substantial differences between those two protocols. His Honour then ordered the parties to confer with a view to agreeing a protocol, failing which they were to file written submissions on that matter. The parties did not agree. The first applicants and the State each filed written submissions. The State had originally sought orders which would allow its lawyers and its anthropologist to be permitted to attend any hearing, that the transcript of gender restricted evidence be available to those persons and that discussion of gender restricted evidence between them be permitted, regardless of gender. In its submissions the State modified its original position but subject to a condition. The modification was that the State volunteered to send only female counsel and a female anthropologist to the hearing of women's gender restricted evidence and only male counsel and a male anthropologist to the hearing of men's gender restricted evidence. The condition was that the transcript of gender restricted evidence be available to the State's legal advisers and anthropologists regardless of sex and that they be permitted to discuss that evidence. The first applicants did not amend the substance of their original protocol. On 11 April 1997 his Honour made eight orders by way of directions under the sub-heading "Gender Restricted Evidence". The first two paragraphs were introductory and declaratory. The third and fourth paragraphs required a party seeking restrictions in respect of evidence to give notice no later than 28 days before the date upon which the evidence was to be heard and also provided for the giving of notice of objection to such restrictions. There then followed the four orders which the State wishes to challenge on appeal. Those orders were in the following terms:

"10. Each party is entitled to be represented at a hearing of "gender restricted" evidence by no more than two lawyers of the same sex as the witnesses.

11. Each party is entitled to have present at a hearing of "gender restricted" evidence one anthropologist of the same sex as the witnesses for the purpose of assisting the party's lawyers.

12. Only if cause has been shown and leave obtained from the Court to do so may -

(a) the party's lawyers and anthropologists who attend the hearing of "gender restricted" evidence divulge information about the evidence to that party's other lawyers or anthropologists engaged in the proceedings regardless of gender, or

(b) transcript of "gender restricted" evidence be available to the party's other lawyers or anthropologists regardless of gender.

13. The transcript of evidence or other record made of or in relation to any evidence restricted on the basis of gender and information in respect thereof may not be disseminated to any persons other than to counsel, instructing solicitors and anthropologists as instructed by a party, such persons being of the gender required by the aforesaid restriction unless leave has been obtained from the court in the same terms as described in item 7."

The State's motion for leave to appeal is brought under s.25(2) of the Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 of the Federal Court Rules. Its notice of motion, although referring to Order 52 rule 10(2) does not state whether leave is sought from a single judge or a Full Court (both of which being provided for in that sub-rule). However, the State has made no application for the matter to be heard by a Full Court and has participated in these proceedings on the basis that I should hear it. In those circumstances I think it is safe to infer that the State has elected to apply to the Court constituted by a single judge. Nevertheless, it seems clear that the hearing and determination of the motion constitutes the exercise of the Court's appellate jurisdiction: Thomas Borthwick & Sons (Pacific Holdings) Ltd & Ors v. Trade Practices Commission (1988) 79 ALR 171. I shall deal briefly below with the grounds which the State wishes to raise if leave to appeal is granted. However, there is a further introductory matter which arises out of one of those proposed grounds. If leave is granted, the State wishes to argue that this Court lacked jurisdiction to make the four orders set out above as they are contrary to s.85 of the Native Title Act, s.78 of the Judiciary Act (Cth) and Chapter III of the Constitution. The State has given notices under s.78B of the Judiciary Act 1976 to the Attorneys-General for each of the States and the two Territories. The Attorney-General for the State of Western Australia has intervened to support the State's motion. No other Attorney-General has indicated any interest in intervening. Assuming, but without deciding, that an application for leave to appeal which foreshadows a ground of appeal involving a matter arising under the Constitution or involving its interpretation, is a cause pending which falls within s.78B(1) of the Judiciary Act, I am satisfied that on the affidavit evidence of Mr M.J. Davies (a solicitor under contract to the State) that notice has been given to all the Attorneys-General and that a reasonable time has elapsed thereafter for them to consider the question of intervention in these proceedings.

Whether leave to appeal should be granted

In Decor Corporation Pty Ltd v. Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at pp.398-400 a Full Court of this Court provided a most useful review of the cases on the question of whether leave should be granted to appeal against an interlocutory decision. These were described as providing "general guidance" which a Court should normally accept. The Court referred also to the important distinction between an interlocutory decision which determines a substantive right and one on a point of practice, the latter requiring "a tight rein" [a reference to the well-known passage in In Re the Will of F.B.Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318 at p.323]. Decor Corporation is one of the most often cited cases on the approach to be taken when a Court has to decide whether to grant leave to appeal against an interlocutory decision. The approach has two major considerations, namely:

(a) whether in all the circumstances the decision is attended with sufficient doubt to warrant reconsideration; and

(b) whether substantial injustice would result if leave were refused (supposing the decision to be wrong).

However, as Drummond J noted in a recent case, Cokerill & Ors v. Westpac Banking Corporation (Federal Court of Australia, unreported, 7 April 1997, Judgment No. 241 of 1997) it is necessary, in an appropriate case, to have regard to other considerations as well. For example, in Decor itself (at p.399) the Full Court referred to the fact that Full Courts have granted leave on the footing that a matter of importance was raised which it was appropriate should be determined by a Full Court. Ms A.M. Sheehan, counsel for the first applicants submitted that the State's motion was premature; she described it variously as "ridiculously premature", "extraordinarily premature" and "very very premature". She asked, rhetorically, how a Full Court of the Federal Court could deal with the matter? The matter was, so it was put, completely hypothetical. I asked Ms Sheehan if she knew whether her clients proposed to call gender restricted evidence. I was told that the matter was still under discussion, that the decision was not an easy one but that it was most unlikely that women would give evidence. Ms Sheehan said that it was highly likely that men's evidence would be given. She contended that this motion related mainly to women's evidence. The second applicants, Mr Cecil Ningarmara and others, did not appear at the hearing of this motion but filed short written submissions similar to those made by Ms Sheehan on behalf of the first applicants. The essence of those written submissions was that it was premature to grant leave to appeal because, so it was submitted, such an important issue should not be determined in the absence of information relating to the nature of the particular evidence for which restriction is claimed and the basis for that application. The second applicants referred to the directions which require the applicants to provide notification of the restrictions sought and the basis for those restrictions no later than 28 days before the date upon which that evidence is to be heard. The second applicants submitted that this procedure would ensure that Lee J and any subsequent Court of appeal would be fully apprised of the nature of the particular evidence before determining legal issues relating to whether restrictions can or should be ordered. I do not consider that the present motion is premature. First, the applicants make no concession that they will not be calling gender restricted evidence. Secondly, there is the indication that it is highly likely that men's evidence will be given. In that regard Mr C.J.L. Pullin QC (who with Ms K.H. Glancy appeared for the State) drew my attention to the fact that the Northern Territory has to date been represented by Ms Raelene Webb of counsel (with Mr T. Pauling QC). In my view, it would not be satisfactory for the respondents to have to wait until the trial, and then appeal against any rulings with which they may be dissatisfied. I do not consider that the particular gender sensitive evidence and the basis upon which restrictions were claimed would provide such assistance to an appellate Court as to justify denying leave to appeal. Cultural and gender sensitivity is assumed. It is not the particulars of such culturally and gender sensitive evidence that are in issue. Rather, the case involves important issues of principle, being the matters to which I return below.

I turn next to the question whether the decision which the State seeks to challenge is attended with sufficient doubt to warrant reconsideration. In that regard I was referred to the decision of Olney J in Yarmirr v. The Northern Territory of Australia (Federal Court of Australia, unreported, 15 April 1997, Judgment No. 274 of 1997). In that matter his Honour dealt with a request by applicant claimants that females be excluded from a particular sitting of the Court. The principal application was, like the present one, for a determination of native title under the Native Title Act. The first respondent, the Northern Territory objected to that course. The second respondent, the Commonwealth of Australia, filed a similar objection to the restrictions which the applicants asked the Court to impose. The hearing of that objection took place on 10 April 1997 and his Honour gave judgment on that point on 14 April 1997, publishing his reasons on 15 April 1997. Apart from anything else, the significance of those dates is that his Honour had the advantage of being aware of the orders made by Lee J in this matter. Olney J expressly referred to the directions which the State seeks to challenge in this case. Olney J noted that Lee J had ordered that at the hearing of gender restricted evidence each party was to be restricted with regard to legal and anthropological representation, access to transcript and evidence and the like, in the manner reflected in the orders set out above. In a detailed and (with respect) very carefully-reasoned judgment, Olney J gave his reasons for not taking such a course. His Honour referred to the distinction between procedures under the Aboriginal Land Rights (Northern Territory) Act and the exercise of this Court's jurisdiction under the Native Title Act. His Honour further referred to s.17 of the Federal Court of Australia Act, s.78 of the Judiciary Act, s.85 of the Native Title Act and Chapter III of the Constitution. His Honour gave his reasons for rejecting the applicants' submission that s.82(2) of the Native Title Act empowered the Court to deny a party the right to be represented by a legal practitioner of the party's choice. Olney J found it unnecessary to explore whether a statutory provision which purported to authorise this Court to make such an order would conflict with Chapter III of the Constitution. His Honour said that he was satisfied that no such power exists under the current legislation. His Honour said, at pp.10-11:

"In my opinion the legislative regime presently applicable to the representation of parties in Federal Court proceedings is not such as to authorise the Court to make an order which would limit the choice of the legal representative of the party by reference to the gender of the representative.

. . .

It is a generally accepted principle that the Court has no authority to exclude a party from the hearing of a proceeding except where the party's conduct may justify his or her exclusion. In my opinion it would rarely be the case where the presence of a party could be said to be contrary to the interests of justice. Indeed, the contrary is so. To exclude a party from the hearing of his or her own cause would be the very antithesis of justice. I do not think that s.17(4) of the Federal Court Act operates so as to authorise the Court to exclude a party who has not misconducted himself or herself and in particular the section could not reasonably be construed so as to authorise the exclusion of a party merely by reason of the party's gender."

Earlier in his reasons, Olney J made it quite clear that he fully understood that there are some aspects of Aboriginal customary laws and traditions which, according to those laws and traditions, should not be disclosed to persons who are not entitled to know about them. His Honour made directions that, in relation to the particular hearing involved, there be no restriction on the attendance of female parties, counsel, solicitors or Court staff, but that female members of the public were to be excluded, that the publication of such evidence without leave of the Court be prohibited and that, unless otherwise ordered by the Court, access to the transcript of the evidence be restricted to the parties, their legal advisers and male professional consultants.

Ms Sheehan sought to distinguish Olney J's decision in Yarmirr from Lee J's decision in this matter. As I understood the submission, the distinction arose on the basis that the question of gender restricted evidence had been "on the agenda and under discussion for some time" during the interlocutory stages of this application. In the Yarmirr matter, Olney J had criticised the applicants for non-compliance with certain directions. In the present matter, so Ms Sheehan submitted, his Honour had considered detailed submissions from both sides which referred to a wealth of material. Lee J had chosen a compromise. I was referred to a passage in his Honour's ex tempore reasons for judgment which read as follows:

"The question in this case is whether a balance can be struck that will give due regard to Aboriginal culture and customary concerns and, at the same time, preserve the integrity of the trial as an exercise of the judicial power of the Commonwealth under the Constitution."

I am unable to discern any relevant distinction between the two decisions.

I do not think that it is appropriate for me to express any view on the merits of the proposed appeal. It is sufficient for me to express my satisfaction that, particularly in view of Olney J's decision, the decision in respect of which the State seeks leave to appeal is attended with sufficient doubt to warrant reconsideration by a Full Court.

As was submitted on behalf of the State, the orders could require the case to be split on grounds of gender. This would extend to counsel, solicitors, experts, parties and potential lay witnesses. Those effects might extend into the appellate process also. The situation is comparable to the potential substantial injustice identified by Drummond J in Cokerill (at p.3) where his Honour said:

"The second limb of this test is also, in my opinion, satisfied, given that the judgment determined substantive rights and that, if leave is refused but the judgment is wrong, the respondent will suffer the injustice of having to participate in further, but unnecessary, complex litigation."

I appreciate that it is arguable that the present judgment is not concerned with the determination of substantive rights. However, a right to be present when the question of title to one's land is in issue might be thought to be more than a merely procedural right. I do not need, for present purposes, to resolve that question. My focus is on Drummond J's reference to the injustice of having to participate in further, but unnecessary, complex litigation. I think that there are relevant and comparable potential injustices here. I refer to the likely need to set up two teams of lawyers and anthropologists, one team being male and the other team being female. I have given consideration to whether the State should be left to exercise its rights to apply to vary these interlocutory orders, or to apply for leave under paragraphs 12 and 13 of the orders. As the trial of the principal application has started (with opening addresses in February this year) any such application would have to be made to Lee J. Lee J is currently overseas on long leave and is due to return to Australia virtually on the eve of the resumption of the hearing on 21 July 1997. So far as the first alternative course is concerned, the ordinary rule of practice is that an application to set aside, vary or discharge an interlocutory order of a substantive nature (made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings) must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court - see Brimaud v. Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, Equity Division 19 September 1988 at p.5). That case was cited with approval by a Full Court of this Court in Darling Harbourside (Sydney) Pty Ltd v. Sanirise Pty Ltd (Full Court, unreported, 17 May 1996, Judgment No. 582 of 1996). I have not overlooked the fact that in the transcript of the proceedings on 11 April 1997 (at p.597) his Honour stated that the directions would be subject to liberty to apply to vary them at any time and added:

"By that I mean that what I have done has not been a chiselling of directions on tablets of stone ...".

Nevertheless, the formal orders contain no such express reservation. Furthermore, the tenor of the opening words of paragraph 12 of the orders - "Only if cause has been shown and leave obtained ..." (a condition expressly made applicable by paragraph 13 to the transcript of evidence or other record) strongly suggests that this was intended as a "one off" directions order. I accept the submission, made on behalf of the State, that the respondents will be uncertain whether it will prove to be necessary to engage separate male and female teams of counsel, solicitors and anthropologists and that they will be obliged to make those engagements in case the learned trial Judge adheres to the present rulings and does not accede to applications for leave under paragraphs 12 or 13 of the orders complained of. If the orders are wrong, then I consider a substantial injustice would be visited on the respondents by being compelled to adopt the course of splitting those who are to prepare and present (and assist the preparation and presentation) of their cases into two teams. In particular, I refer to the advantage of having (possibly a right to have) at least one counsel who has access to all of the evidence in the case. Without such an advantage or right there could be a grave risk of substantial injustice. One obvious example suffices. Suppose there arose an inconsistency between the evidence given at a males only session on the one hand and at a females only session on the other hand. How would either team, under the present directions, become sufficiently informed to seek leave to advise the other team of such an inconsistency? There are also important matters of procedural fairness (to which Olney J refers in Yarmirr) upon which it is not necessary for me to expand.

Mr Pullin submitted that the making of the orders which the State sought to challenge was inconsistent with the exercise of the judicial power of the Commonwealth and, even if authorised by the Native Title Act, would be invalid under the Constitution. He referred to Chu Kheng Lim v. Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at p.27; Grollo v. Commissioner of Federal Police [1995] HCA 26; (1995) 131 ALR 225 at pp.246-247 and Dietrich v. The Queen [1992] HCA 57; (1992) 177 CLR 292 at pp.326 and 362-363. Counsel for the Minister for Aboriginal and Torres Strait Islander Affairs and counsel for the Attorney-General for Western Australia made similar submissions. Mr G. Kennett, counsel for the Commonwealth Minister, submitted that the issues raised by the orders of which complaint is made in the present matter are likely to arise quite frequently and that it was appropriate for there to be some guidance from a Full Court. I agree.

Furthermore, I consider that the matters which the State seeks to ventilate in its draft notice of appeal are issues of considerable importance, which it is appropriate should be determined by a Full Court. First, there is the divergence, to which I have referred, between the views of Olney J and Lee J. Secondly, there is the point raised under Chapter III of the Constitution. Thirdly there is the procedural fairness point. Finally there are the issues of construing the statutory provisions to which Olney J referred in his reasons for judgment in Yarmirr. These were matters which were advanced (as justifying the grant of leave to appeal) by Mr R.J. Meadows QC, Solicitor-General for the State of Western Australia, who appeared for the Attorney-General for that State. His submissions broadly mirrored the State's submissions in that regard. Ms Sheehan complained that the Commonwealth Minister was, in effect, seeking to extend the grounds of appeal by putting submissions which were not to be found in the proposed notice of appeal. I do not think that, at this stage of the proceedings, any intervener (the Commonwealth Minister is an intervener in the principal application) can be confined in its submissions to the grounds which a would-be appellant chooses to include in its proposed notice of appeal.

Conclusion

For the above reasons I propose to grant the first respondent leave to appeal in terms of its amended motion. There will be an order that the costs of this motion be reserved to the Full Court which hears the appeal.

I certify that this and the preceding thirteen (13)

pages are a true copy of the Reasons for Judgment

of Justice Carr.

Associate:

Date: 14 May 1997

Counsel for the First Applicants: Ms A.M. Sheehan

Solicitors for the First Applicants: Aboriginal Legal Service of Western Australia

Counsel for the First Respondent: Mr C.J.L.Pullin, with him Ms K.H.Glancy

Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia

Counsel for the Commonwealth

Minister for Aboriginal & Torres

Strait Islander Affairs, intervening Mr G.Kennett

Solicitors for the abovementioned

intervener: Australian Government Solicitor

Counsel for the Attorney-General Mr R.J.Meadows QC, Solicitor-General

for the State of Western Australia: for the State of Western Australia

Solicitor for the Attorney-General Crown Solicitor for the State of

for the State of Western Australia: Western Australia

Date of Hearing: 14 May 1997

Date of Judgment: 14 May 1997