Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 4) [2019] FCA 1275

Western Australia
Federal Court
Legislation considered: 
Federal Court Rules 2011 (Cth)
Federal Court of Australia Act 1976 (Cth)
s 37M Federal Court of Australia Act 1976 (Cth)
s 37P Federal Court of Australia 1976 (Cth)

McKerracher J

This case concerns an application by the State of Western Australia (State), being the second respondent and third cross-claimant, for a separate hearing of the second, third and fourth cross-claims (the cross-claims) prior to the hearing of the principal proceeding and first cross claim.  Buurabalayji Thalanyji Aboriginal Corporation (BTAC) (the applicant and  fourth cross-respondent) opposed the application.

The other parties to the proceedings are Onslow Salty Pty Ltd (first respondent and fourth cross-claimant), and Chevron Australia Pty Ltd (first cross-respondent and second cross-claimant but not a party to the principal proceeding).


The principal proceeding concerned alleged interference by Onslow Salt (a mining company) in the native title rights and interests of BTAC, causing loss and damages. Details of the principal proceeding and the cross claims are contained in previous judgements. See Related Content.

The respondents initiated cross-claims based on a covenant not to sue and a release and indemnity given by BTAC in a contract titled 'Native Title Agreement Wheatstone Project', The State's application concerned the scope of the release given under that contract and the issue of whether the contract precludes BTAC from bringing the principal proceedings. The State also claimed that an order for a separate hearing was necessary to give effect to principles of case management, efficiency and justice. For further information on the case history and outcome, see his Honour’s summary starting from paragraph [7].


McKerracher J noted the guiding principles concerning an application for a separate hearing under the Federal Court Rules 2011 (Cth) and the default position that ‘in a proceeding all issues of fact and law should be determined at the one time following a trial’, and more specifically, ‘the hearing and determination of a cross-claim should take place at the same time as the principal proceeding’, at [19].

His Honour noted that the question that arises for the Court when confronted with an application for a separate hearing is whether, in the exercise of the Court’s discretion, this is an appropriate case for the departure from the ordinary course that all issues of fact and law should be determined at the one time, on the basis that it is just and convenient for the order to be made.

The State argued that the separate hearing of the cross‑claims has the potential to substantially reduce costs and time for the parties and for the Court. BTAC rargued that the State's claims were misconceived and should be dismissed for various reasons including:

 (1) The issues raised by the cross‑claims will require resolution of most of the issues in the principal proceeding, will require a similar amount of discovery and will involve consideration of some of the same evidence. (2) There would be an increase in, and not a saving of, time or expense in proceeding as the State suggests. Separating the trial will bring about the very problems of duplication, waste of the Court’s and parties’ resources and potential hypothetical or incompletely litigated findings that the High Court has cautioned against. (3) The chief vice in the State’s submissions is the failure to examine properly the nature of the case made by the cross‑claimants. When that is done, it can be seen that significant issues of fact and law are identical to those in the principal proceeding and are antithetical to a separate hearing.

His Honour noted that matters of efficiency and justice point in favour of the State’s approach. The Court noted that:

  • the State’s cross-claim is essentially an ‘application to restrain BTAC from further breach of a negative covenant in a contract’; and
  • justice demands that the cross-claimants be entitled to seek to rely upon the contractual promises raised and BTAC to explain why they cannot do so.

On this basis, his Honour found that it is ‘just and convenient for the cross-claims to be heard first’, at [79].


The second, third and fourth cross‑claims be heard and determined prior to the further programming or hearing of the principal proceeding and the first cross-claim.

The parties to file a minute of consent orders programming the cross-claims.

Costs reserved to be determined on the papers.