Charlesworth J
In this case, Charlesworth J considered an application to vacate trial dates with respect to a native title application over an area situated on the west coast of South Australia known as 'Wirangu No. 2'. The application was made by the applicants to the native title determination application. The respondents in the matter were the State of South Australia and others. The decision was largely made with reference to the Court’s overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth).
Claim History
On 5 August 2018, White J ordered that Wirangu No. 2 be separated into two parts to be called 'Wirangu No. 2 Part A' and 'Wirangu No. 2 Part B'. Part B was subject to an overlapping claim (the Nauo Overlapping Claim). By order of 5 November 2018, the trial of all issues arising in Part A was set down to commence on 4 November 2019. On 8 July 2019, the applicant applied to have these trial dates set aside.
Submissions
The applicant sought to vacate the trial dates in order to deal with disputes that had arisen due to the overlap of part of the claim with another claim. They submitted that resolutions at a joint meeting could result in substantive changes to the nature of the applicant’s case requiring amendment to its statement of facts, issues and contentions and requiring the preparation of additional anthropological and lay evidence. Alternatively, it was foreshadowed that the meeting could result in a new native title application, which it was argued should be heard simultaneously.
Reasons for Decision
His Honour concluded that an order vacating the trial dates would not best promote the overarching purpose of the Court’s practice and procedure provisions. He noted that although the matters raised were not the fault of the claimants themselves, a party should be bound by the conduct of its solicitor. A trial date should not be adjourned merely because of a party’s desire to do things its solicitor could and should have done at an earlier time.
His Honour went on to note that the applicant was bound by the conduct of its case by its advisers, notwithstanding that the applicant may be deprived of the opportunity to seek a different form of relief. Any potential prejudice that arises as a result is generally a legal matter between the party and its advisers. His Honour also noted the considerable expense to the public and the consumption of judicial and administrative resources already accumulated. The application to vacate the trial dates was dismissed.