Wilkes v State of Western Australia [2003] FCA 156

Wilkes v State of Western Australia [2003] FCA 156

The prima facie confidential and sacred character of the proposed site evidence justified interim restrictions, but those restrictions had to be balanced against the fair hearing interests of affected parties. Mr Bodney was excluded from the Rottnest Island evidence because he made no claim there and his presence was not presently necessary for prosecuting his claim, but he was permitted to attend the other sites as a necessary incident of his opportunity to be heard. Messrs Miller and Yarran were excluded at this interim stage because the prima facie confidential character of the explanatory information outweighed their as yet undefined interests in opposing the claims, subject to later...

Jurisdiction
Australia
Judgment Date
05 November 2003
Procedural Posture
Native Title Proceeding / Ruling on Claim to Restrict Evidence; Interim Orders
Outcome
Interim orders made restricting attendance, transcript handling, disclosure and use of evidence.
Legal Topics
['restricted Evidence' 'confidential Aboriginal Cultural Information' 'open Court Principle' 'exclusion of Specified Persons' 'interim Orders']
['native Title' 'practice and Procedure' 'evidence'] ['restricted Evidence' 'confidential Aboriginal Cultural Information' 'open Court Principle' 'exclusion of Specified Persons' 'interim Orders']

Case Brief

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Procedural Posture

Native Title Proceeding / Ruling on Claim to Restrict Evidence; Interim Orders

Legal Issues

  1. 1 ['Whether evidence to be given at specified sites should be restricted so as to exclude Messrs Bodney, Miller and Yarran.' 'Whether the Court should take account of cultural and customary concerns of Aboriginal peoples without unduly prejudicing another party to the proceedings.' 'Whether the presence of specified persons would be contrary to the interests of justice or whether publication restrictions were necessary to prevent prejudice to the administration of justice.' 'Whether Mr Bodney, as an unrepresented party prosecuting his own native title claim, should be permitted to attend sites other than Rottnest Island.']

Ratio Decidendi

The prima facie confidential and sacred character of the proposed site evidence justified interim restrictions, but those restrictions had to be balanced against the fair hearing interests of affected parties. Mr Bodney was excluded from the Rottnest Island evidence because he made no claim there and his presence was not presently necessary for prosecuting his claim, but he was permitted to attend the other sites as a necessary incident of his opportunity to be heard. Messrs Miller and Yarran were excluded at this interim stage because the prima facie confidential character of the explanatory information outweighed their as yet undefined interests in opposing the claims, subject to later...

Court Disposition

Interim orders made restricting attendance, transcript handling, disclosure and use of evidence.

Orders

  • ['In respect of the hearing on Rottnest Island on 6 March 2003, until further order, only 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 may be present.' 'The transcript of the...