This matter was a ruling on an interlocutory application made by the Torres Strait Regional Authority (TSRA) in proceeding QUD6040/2001, being the Torres Strait Regional Seas Claim (Part B) (Part B Sea Claim).
The TSRA sought two orders, cumulatively, or alternatively:
That this proceeding and proceedings QUD 266 of 2008, QUD 267 of 2008, QUD 362 of 2010, QUD 6005 of 2002, QUD 114 of 2017 and QUD 115 of 2017 be transferred to another Judge for hearing and determination.
Further or alternatively that Order 13 of this Honourable Court made on 19 December 2017 be discharged or set aside.
The basis for this proceeding and application was that Mortimer J should disqualify herself from any further involvement in this proceeding on the grounds of apprehended bias.
In January 2018, the TSRA also filed an application for leave to appeal, out of time, against other orders made on 19 December 2017. Leave to appeal was refused: see TSRA v Akiba on Behalf of the Torres Strait Regional Sea Claim [2018] FCA 601.
The evidence relied upon for the application is set out in an affidavit of Mr Besley, an employed solicitor at the TSRA. Mr Besley deposed in his affidavit that his evidence was given on the instructions of Dr Cecilia O’Brien, the Principal Legal Officer in the Native Title Office of the TSRA. There were objections to much of the affidavit material filed on behalf of the TSRA. The Commonwealth, the State of Queensland, the Kaurareg respondents, the Badu People (the applicants in QUD6005/02) and the three claim group member respondents all objected to the affidavit material on the grounds that it was irrelevant to the disqualification application.
For reasons her Honour gave orally during the hearing, Mr Besley’s affidavit was inadmissible. Mortimer J accepted the submissions of the State and the Commonwealth that the affidavit was irrelevant in relation to the disqualification application set out in ground 1 of the TSRA’s application. Her Honour further noted that much of what was contained within the affidavit was contested as to its accuracy and completeness and that parts of the affidavit were hearsay accounts of Dr O’Brien’s instructions. The application was dismissed and an opportunity (set out in the orders) was provided for Parties to make submissions on.