Background
The application in dispute concerned Mr William Thomas giving evidence using video-conference facilities in Kowanyama. Mr Harriss and Mr O’Dell, counsel from the North Queensland Land Council (NQLC) were to drive from Cairns to Kowanyama to deliver a laptop so that Mr Thomas could deliver evidence via Microsoft Teams. Mr Thomas was elderly and suffered from ill-health. Mr Kempton, representing some of the respondents, opposed the application on the grounds that Mr Harriss and Mr O’Dell would be present with Mr Thomas and could influence his evidence.
Decision
Mr Thomas was giving evidence in a preservation of evidence hearing which was scheduled for less than three business days’ time. There were clear time pressures, and his evidence was important. The course of action proposed in the application appeared to be reasonable, facilitative and consistent with the obligations of the parties under s 37N of the Federal Court of Australia Act 1976 (Cth).
Her Honour rejected Mr Kempton’s submission that no affidavit evidence had been adduced by the applicant explaining the reasons for the proposed course of action. This application was filed against a background of discussion between parties geared at overcoming the relevant impasse. There was no suggestion that Mr Harris or Mr O’Dell were unaware of their obligations to the Court, or that they would act inconsistently with those obligations.
Any concerns of the parties concerning the conduct of NQLC lawyers present could be alleviated by requiring all individuals in the room with Mr Thomas be present during the delivery of oral evidence. Her Honour also considered it necessary to make the order sought in circumstances where:
The order sought was simple and reasonable;
The reasons for the order sought were explained by the applicant and had been communicated to all parties;
The State had no objection;
All parties present were given an opportunity to address the Court in respect of the order;
No parties who were not present in Court sought any orders referable to the application;
There were good reasons to make the order;
The significant time pressure and the requirements of efficient case management required prompt resolution of the issue.
For the reasons set out above, the application was allowed.
Costs
Section 85A(1) of the Native Title Act 1993 (Cth) provides that parties are to bear their own costs. Section 85A(2) permits the Court to order costs where a party has unreasonably caused another to incur costs. Her Honour ordered that Mr Kempton’s clients bear the applicants costs of and incidental to the management hearing as the objection was obstructive and unreasonable within the s 85A meaning.