Walker on behalf of The Yalanji People v State of Queensland [2003] FCA 960

FEDERAL COURT OF AUSTRALIA

Walker on behalf of The Yalanji People v State of Queensland [2003] FCA 960

EILEEN WALKER ON BEHALF OF THE YALANJI PEOPLE v STATE OF QUEENSLAND & ORS

QG 6008 of 1998

ALLSOP J 9 SEPTEMBER 2003 SYDNEY (By video link to Cairns & Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 6008 of 1998

BETWEEN: YALANJI PEOPLE (EILEEN WALKER)

APPLICANT

AND: STATE OF QUEENSLAND & ORS

RESPONDENTS

JUDGE: ALLSOP J

DATE OF ORDER: 9 SEPTEMBER 2003

WHERE MADE: SYDNEY (By videolink to Cairns & Brisbane)

THE COURT ORDERS THAT: 1. The matter stand over to Friday, 5 December in Cairns. There will be no video-link attendance. 2. Any party wishing to put submissions, as to steps to be taken in order to bring the matter on for hearing next year, is to file and serve on or before 21 November 2003 a draft set of short minutes of order and short submissions in support of those orders of not more than three pages. 3. Any party not wishing to participate in that directions hearing and which will abide by any order of the Court, as to the conduct of the matter in its interlocutory stages, may indicate by 21 November 2003 that it does not wish to appear but that it will abide by any order of the Court as to the conduct of the matter including orders made against it. 4. The applicants prepare and circulate, on or before Tuesday 2 December 2003, a summary of any dispute as to the proposed orders and as contained within the submissions filed by 21 November 2003 and also prepare so far as is possible, a set of consent short minutes. 5. The costs of today will be costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY QG 6008 OF 1998

BETWEEN: YALANJI PEOPLE (EILEEN WALKER)

APPLICANT

AND: STATE OF QUEENSLAND & ORS

RESPONDENT

JUDGE: ALLSOP J

DATE: 9 SEPTEMBER 2003

PLACE: SYDNEY (by video link to Cairns & Brisbane)

REASONS FOR JUDGMENT

1 I have before me matter number QG6008/98. The matter was commenced some time ago and was allocated substantively to my docket in June 2002. Since then the parties have been in mediation. The mediation had reached a point in June 2003 enabling responsible legal representatives of the applicants to indicate that if the matter had not settled by September 2003 it was unlikely to settle. 2 The matter has not settled. Most of the parties wish for the matter to simply remain in mediation and come back for directions in December. 3 Mr Brooks, the legal representative of the applicants, has explained what might otherwise appear to be a change of position in correspondence which he has circulated and which he has sent to the court. Nothing that I am about to say should reflect in any way unfavourably on any of the legal representatives or indeed the parties, and in particular on Mr Brooks who made the statement to me in June. 4 At this point some of the parties, in particular the pastoralist interests, wish to withdraw from the mediation and Mr McLeod of counsel, in effect, urges me to act under section 86C of the Native Title Act 1993 (Cth) and of the court's own motion and order that the mediation cease or at least cease insofar as it affects the pastoralists. Other parties wish to continue with mediation. 5 One of the letters which I have been provided with indicates that some of the relevant elders have passed away during the preparation of this case. I have said on each occasion on which the matter has been before me that preservation of evidence is a matter for the parties to address at all times and make any application which is thought appropriate to the court. Again, I do not say that critically of any party, I am simply reminding the parties' representatives of their responsibilities to their clients and to the court. 6 Mr Brooks' reasons for what is in effect a change of position from June are set out in the letter. Largely speaking, they appear to involve what may be seen to be delays by the State in providing certain information to the applicants. In so expressing the matter I am not being critical of the State of Queensland. I use the word "delay" with a temporal meaning only and nothing pejorative is intended. In any event, Mr Brooks and most other representatives essentially want the matter stood over to December. 7 This matter has now been in my docket as a substantive allocation for a year. The matter was in progress for some considerable time before then. There comes a point in the disposition of matters filed in court when the public interest and the confidence in the due and timely administration of justice requires that matters be brought to finalisation and resolution. It goes without saying that to the extent that parties can mediate and resolve their disputes without the expensive intervention of the cumbersome dispute resolution mechanism of the traditional courts, such resolution is to be encouraged. However, the allowing of a matter to drift in mediation against the wishes of some of the parties is not in the public interest and militates against the confident administration of justice. 8 I have taken into account everything Mr Brooks has put in his correspondence and, in particular, his desire to obtain further instructions by way of consultation with those instructing him. I propose to adopt the course which permits the applicants to have some further time so that I can be confident that I have not taken any steps which would or could be seen as having prematurely put an end to the possibility of a fruitful mediation. 9 In short, what I propose to do is as follows, and as I said I will hear the parties if anyone wants to put any further submissions. I propose to stand this matter over to Friday, 5 December in Cairns. There will be no video-link attendance. On 5 December there will be argument, to the extent that argument is necessary, as to the procedural steps to be taken to bring this matter on for hearing commencing in June 2004, after the Full Court sittings are complete in May. 10 I will make a further order that any party wishing to put submissions, as to steps to be taken in order to bring the matter on for hearing next year, is to file and serve a draft set of short minutes of order and short submissions in support of those orders of not more than three pages. Those draft orders and submissions are to be filed and served on or before 21 November 2003. 11 Any party not wishing to participate in that directions hearing and which will abide by any order of the court, as to the conduct of the matter in its interlocutory stages, may indicate by 21 November 2003 that it does not wish to appear but that it will abide by any order of the court as to the conduct of the matter including orders made against it. 12 I will make another order that the applicants prepare and circulate, by Tuesday 2 December 2003, a summary of the dispute as to the disposition of the matters contained within the submissions and orders filed by the 21 November 2003 and also prepare so far as is possible, a set of consent short minutes. 13 The costs of today will be costs in the cause.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 15 September 2003 On behalf of the Applicants: Mr J Brooks

Solicitor for the Applicant: Cape York Land Council

Counsel for North Queensland Land Council: Mr M Ascione

Solicitor Wujal Wujal Aboriginal Council: S M Coates Solicitor & Notary

Solicitor for Cook Shire Council, Douglas Shire Council & Ergon Energy MacDonells Solicitors

Counsel for the Pastoralists: Mr McLeod

Solicitor for the Pastoralists: O'Reilly & Stevens Lawyers

Solicitor for the State of Queensland: Crown Law

Solicitor for Telstra Corporation Ltd: Blake Dawson Waldron

Date of Hearing: 9 September 2003

Date of Judgment: 9 September 2003