State of Western Australia v Ward, Ben & Ors [1997] FCA 585

State of Western Australia v Ward, Ben & Ors [1997] FCA 585

Subject to certain amendments for clarity, orders restricting access to gender restricted evidence—including restricting the gender of legal practitioners present—are within the power of the Federal Court under s 50 of the Federal Court of Australia Act and are not inconsistent with Chapter III of the Constitution...

Source-derived case information.

Parties
Appellant: The State of Western Australia; First Respondents: Ben Ward & Ors on behalf of the Miriuwung Gajerrong Peoples; Second Respondents: Cecil Ningarmara & Ors; Third Respondents: Delores Cheinmora & Ors on behalf of the Balangarra Peoples; Intervenor: Minister for Aboriginal & Torres Strait Islander Affairs; Intervenor: Attorney-General for the State of New South Wales; Intervenor: Attorney-General for the Northern Territory; Intervenor: Attorney-General for Western Australia
Jurisdiction
Australia
Judgment Date
08 July 1997
Procedural Posture
Appeal / On Appeal From a Single Judge, Orders Varied
Outcome
Appeal allowed in part, orders of primary judge varied
Legal Topics
Gender Restricted Evidence, Procedural Fairness, Federal Jurisdiction, Open Justice, Cultural and Customary Concerns in Court Proceedings
Native Title Constitutional Law Civil Procedure Gender Restricted Evidence Procedural Fairness Federal Jurisdiction Open Justice Cultural and Customary Concerns in Court Proceedings

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Parties

The State of Western Australia

Appellant

Ben Ward & Ors on behalf of the Miriuwung Gajerrong Peoples

First Respondents

Cecil Ningarmara & Ors

Second Respondents

Delores Cheinmora & Ors on behalf of the Balangarra Peoples

Third Respondents

Minister for Aboriginal & Torres Strait Islander Affairs

Intervenor

Attorney-General for the State of New South Wales

Intervenor

Attorney-General for the Northern Territory

Intervenor

Attorney-General for Western Australia

Intervenor

Procedural Posture

Appeal / On Appeal From a Single Judge, Orders Varied

Legal Issues

  1. 1 Whether Federal Court orders under s 50 of the Federal Court of Australia Act restricting access to 'gender restricted' evidence are valid and a proper exercise of power
  2. 2 Whether such orders are inconsistent with Chapter III of the Constitution

Ratio Decidendi

Subject to certain amendments for clarity, orders restricting access to gender restricted evidence—including restricting the gender of legal practitioners present—are within the power of the Federal Court under s 50 of the Federal Court of Australia Act and are not inconsistent with Chapter III of the Constitution where made in the interests of the administration of justice and to respect cultural concerns, provided such orders are carefully balanced against the requirements of procedural fairness and open justice.

Court Disposition

Appeal allowed in part, orders of primary judge varied

Orders

  • Appeal allowed in part
  • Orders of Lee J of 11 April 1997 varied by amending order 6 to emphasise the interests of administration of justice and deleting specific wording from order 7