Mortimer J
This case concerned a directions hearing in which Mortimer J made orders relating to the timing and form of the hearing. The core case concerned a native title determination application over the islands of Warral and Ului in the Torres Strait which was the subject of competing claims by the Badulgal, Mualgal and Kaurareg peoples. It was ordered that:
Under rule 30.01 of the Federal Court Rules 2011 (Cth), certain questions be determined separately from other questions in the proceeding
The separate question be listed for hearing on Country over three weeks commencing 6 October 2021
Immediately following the separate question hearing, a mediation be conducted on Country
The parties file a concise statement of facts and issues relevant to the separate question
Following the separate question hearing, the parties make oral submissions in relation to the evidence given
In making these orders, Her Honour had particular regard to the overarching purpose of civil practice and procedure provisions in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) which includes the just resolution of disputes as quickly, inexpensively and efficiently as possible. At the time of the decision, neither the applicant nor Badulgal respondents had funding for legal representation, though the applicants had applied and the Badulgal were planning to apply, to the TSRA.
Separate Question Hearing
It was held that the State’s proposed separate question form was preferable to the applicant’s proposal that the entire Native Title Act 1993 (Cth) (‘NTA’) s 61 application be heard in tranches. Mortimer J considered that a separate question would make it easier to obtain funding, which was necessary to ensure justice.
Timing
The timing of the hearing was determined after careful consideration of evidence about weather patterns and seasonal conditions which would affect the feasibility and safety of the proposed on-Country hearings. Although the State sought an earlier hearing date, this was considered undesirable having regard to the practicalities of funding and weather conditions. It was also agreed that the hearing should ideally coincide with the crayfishing off-season, as Badu is a large crayfishing community and crayfishermen forming part of the native title claim group should be present. However, if funding was forthcoming, the Court reserved the possibility of a hearing in April 2021.
Concise Statements
The parties were ordered to article their case by this method having regard to its cost-effectiveness, accessibility, fairness to the Badulgal respondents in the case they are unable to secure legal representation and efficiency. Mortimer J emphasised that the parties should focus on the key issues in dispute as it was very likely native title would be found to exist over the determination area given the decisions in Akiba, Mualgal People v State of Queensland [1999] FCA 157, Kaurareg People v State of Queensland [2001] FCA 657, Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578 and Manas v State of Queensland [2006] FCA 413. Mortimer J noted that the Court was bound by these decisions.