Wilkes v Western Australia [2003] FCA 156 (5 March 2003)

Last Updated: 6 March 2003

FEDERAL COURT OF AUSTRALIA

Wilkes v State of Western Australia [2003] FCA 156

NATIVE TITLE - PRACTICE & PROCEDURE - claim to restrict evidence.

RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS, ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY, WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY, GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY AND CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS V STATE OF WESTERN AUSTRALIA AND ORS

NO. WAG 142 OF 1998

NO. WAG 141 OF 1998

NO. WAG 137 OF 1998

NO. WAG 138 OF 1998

NO. WAG 139 OF 1998

NO. WAG 140 OF 1998

NO. WAG 149 OF 1998

NO. WAG 143 OF 1998

NO. WAG 6128 OF 1998

NO. WAG 6159 OF 1998

NO. WAG 6239 OF 1998

NO. WAG 6283 OF 1998

BEAUMONT J

5 MARCH 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 WAG 143 OF 1998 WAG 6128 OF 1998 WAG 6159 OF 1998 WAG 6239 OF 1998 WAG 6283 OF 1998

BETWEEN:	RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS
AND:	STATE OF WESTERN AUSTRALIA AND ORS RESPONDENTS
JUDGE:	BEAUMONT J
DATE OF ORDER:	5 MARCH 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. In respect of the hearing on Rottnest Island on 6 March 2003, MAKE orders, until any further order, as follows:

(a) Only the following may be present at the hearing: The Judge and Court staff, the applicants other than Mr Bodney, legal representatives, the transcript recorders and such other persons nominated by counsel in court on 5 March 2003.

(b) The transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, are to be separate from the general transcript and records and the transcript is to have a cover sheet clearly marked "restricted evidence", and the date of the hearing. Such transcript, which must not be transmitted or otherwise dealt with by e-mail, is to be printed on paper of a colour different from that of the general transcript, but paginated chronologically with the general transcript. Save for the copies for the Court and for each person entitled to be present at the hearing of the evidence (which copies will be numbered by a Court officer and the name of the recipient recorded) no copies are to be made of the transcript.

(c) The evidence given must not be divulged to any person not entitled to be present at the hearing of the evidence, and must not be used for any purpose except for this proceeding or any appeal.

2. In respect of the other sites specified in "MFI 2", make orders as in 1, above, save that the words "other than Mr Bodney" are to be deleted.

3. Liberty to apply.

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 DISTRICT REGISTRY	WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 WAG 143 OF 1998 WAG 6128 OF 1998 WAG 6159 OF 1998 WAG 6239 OF 1998 WAG 6283 OF 1998

BETWEEN:

RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST COMBINED APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND COMBINED APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD COMBINED APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH COMBINED APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS

AND:

STATE OF WESTERN AUSTRALIA AND ORS RESPONDENTS

JUDGE:	BEAUMONT J
DATE:	5 MARCH 2003
PLACE:	PERTH

REASONS FOR RULING

(ON CLAIM TO RESTRICT EVIDENCE)

BEAUMONT J:

1 The applicants other than Mr Bodney applied to restrict evidence to be given at the sites ("the Sites") specified in "MFI 2", which is annexed to these reasons, so as to exclude Messrs Bodney, Miller and Yarran from hearing that evidence.

2 Earlier today, I made these interim orders:

1. In respect of the hearing on Rottnest Island on 6 March 2003, MAKE orders, until any further order, as follows:

(d) Only the following may be present at the hearing: The Judge and Court staff, the applicants other than Mr Bodney, legal representatives, the transcript recorders and such other persons nominated by counsel in court on 5 March 2003.

(e) The transcript of the evidence, and the audio and electronic records of the evidence from which the transcript is made, are to be separate from the general transcript and records and the transcript is to have a cover sheet clearly marked "restricted evidence", and the date of the hearing. Such transcript, which must not be transmitted or otherwise dealt with by e-mail, is to be printed on paper of a colour different from that of the general transcript, but paginated chronologically with the general transcript. Save for the copies for the Court and for each person entitled to be present at the hearing of the evidence (which copies will be numbered by a Court officer and the name of the recipient recorded) no copies are to be made of the transcript.

(f) The evidence given must not be divulged to any person not entitled to be present at the hearing of the evidence, and must not be used for any purpose except for this proceeding or any appeal.

2. In respect of the other sites specified in "MFI 2", make orders as in 1, above, save that the words "other than Mr Bodney" are to be deleted.

3. Liberty to apply.

3 These are my reasons for these orders.

4 On behalf of the applicants other than Mr Bodney, prima facie evidence has been give to the effect that each of the Sites is "sacred"; that the explanation of their significance to the Noongar people from certain specified areas is something kept in the confidence of those people; that it is part of the law and custom of those people that only certain elders have authority to permit others to enter such sacred "Sites"; and that if Messrs Bodney, Yarran and Miller, who are said to be from other areas, were present at the giving of the evidence proposed at the Sites, each would be at risk of suffering an illness.

5 By s 82(2) of the Native Title Act 1993 (Cth) the Court "may take account of the cultural and customary concerns of Aboriginal peoples ... but not so as to prejudice unduly any other party to the proceedings".

6 By s 17(1) of the Federal Court of Australia Act 1976 (Cth), except where authorised by, inter alia, s 17, the Court's jurisdiction shall be exercised in open court. By s 17(4), the Court may order the exclusion of the public, or of specified persons, where satisfied that their presence would be contrary to the interests of justice.

7 By s 50 of the Court's Act, the Court may, inter alia, make orders restricting the publication of particular evidence "as appears to the Court to be necessary in order to prevent prejudice to the administration of justice ... ."

8 As the Full Court observed in considering a similar question in WA v Ward (1997) 145 ALR 512, several competing interests need to be taken appropriately into account in making, as in this case, advance interim orders to protect information claimed, albeit only prima facie, to be of a confidential character.

9 As mentioned in argument, it appears that the present application has a dual aspect; that is, not only to protect a confidence, but also to protect it from, in particular, those other members of the Noongar people said to be from other specified areas who, in the case of Mr Bodney is prosecuting, as an unrepresented party, his own native title claim, or in the case of Messrs Miller and Yarran, are objecting to the Combined Peth Metropolitan claim.

10 Putting aside for the moment the position of Rottnest Island where Mr Bodney makes no claim, it seems to me inevitable that, as an unrepresented party, he should be permitted to be present at each of the other sites as a necessary incident of providing him with an adequate opportunity to be heard in his own cause. I can see no alternative, in principle, or in practice.

11 At the same time, I am not persuaded that Mr Bodney's presence at the Rottnest Island explanatory evidence can be seen, from my present perspective, to be necessary in order that he might properly be able to prosecute his own claim. It is possible that this perspective could change once the Island evidence is given, in which event the interim orders could be revisited in that light.

12 As unrepresented opponents rather than unrepresented proponents of a claim, Mr Miller and Mr Yarran are in a position which differs from that of Mr Bodney. From my present perspective, that is, in advance of the giving of the evidence, I am of the view that the prima facie confidential character of the explanatory information should, at this stage, be given more weight than the (as yet undefined) interests of Messrs Miller and Yarran in opposing the claims. Again, their position may be reviewed after the evidence on any of the Sites is given.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 5 March 2003

Counsel for the First Applicants:	Mr P Kennard
Solicitor for the First Applicants:	SWAL&SCAC
Solicitor for the Bodney Applicants:	Mr Bodney appeared in person
Counsel for the State of Western Australia:	Mr S Wright
Solicitor for the State of Western Australia:	Crown Solicitors Office, Western Australia
Counsel for Commonwealth of Australia:	Mr A Beech
Solicitor for Commonwealth of Australia:	Australian Government Solicitor
Counsel for various local government bodies and some mining interests:	Ms A Vivian
Solicitor for various local government bodies and some mining interests:	Minter Ellison
Counsel for WAFIC:	Mr M McKenna
Solicitor for WAFIC:	Hunt & Humphry
Counsel for Group 15 in WAG 142/98 and Group 12 in WAG 149/98:	Mr K Jagger
Solicitor for Group 15 in WAG 142/98 and Group 12 in WAG 149/98:	Freehills
Counsel for Town of Bassendean & others (various local government bodies):	Mr P Wittkuhn
Solicitor for Town of Bassendean & others (various local government bodies):	McLeods
Counsel for South West Aboriginal Land & Sea Corporation:	Mr M Rynne
Solicitor for South West Aboriginal Land & Sea Corporation:	SWAL&SCAC
Date of Hearing:	5 March 2003
Date of Orders:	5 March 2003
Date of publication of Reasons for Judgment:	5 March 2003