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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Sweeney, Desmond --- "Update: Dispute Resolution and Aboriginal Parties" [1992] AboriginalLawB 13; (1992) 1(55) Aboriginal Law Bulletin 2


Update -

Dispute Resolution and Aboriginal Parties

Commercial Division of the Supreme Court of New South Wales, Rogers CJ.

21 January 1992, No. E1220/92.

Update by Desmond Sweeney

In a recent ex-parte application made before Justice Rogers, Chief Judge of the Commercial Division of the Supreme Court, sitting as duty vacation judge, on 21 January 1992, (No. E1220192), His Honour made some relevant comments as to the conduct of litigation between Aboriginal parties. In granting an exparte application to abridge time for service of a Summons, His Honour directed that the following comments were to be served together with the Summons. The comments are both pertinent and sensitive, referring to the need not to waste scarce resources of Aboriginal people in that litigation if their dispute can otherwise be resolved between them.

These comments are particularly pertinent as there has been an increase in litigation concerning control of Aboriginal organisations and assets of those organisations over the last few years. While Aboriginal people are, of course, fully entitled to the full protection of the law and to litigate disputes between themselves, His Honour's comments in relation to mediation emphasised the fact that litigation is often costly and may not be the most appropriate way of resolving disputes within an Aboriginal Community.

The comments that His Honour directed to be served together with the Summons were as follows:

I am deeply conscious of the fact that at the moment, of course, I have heard only one side of the story. At the same time it must be a matter of profound concern to any judge that the scarce resources of Aboriginal people should be devoted to, and dissipated in, the costs of litigation. I would hope that when the matter comes before the Court on [the next return date], if the parties have not already been able to compose their differences, they would bring to Court some person or persons trusted by the Aboriginal community who could endeavour to bring the parties together. I will indicate now that if the parties are unable to agree, either on the composition of their differences or on some person who they would trust to mediate the dispute between them, I propose to ask the Hon. H. Wootten QC, a retired judge of this Court and a person of standing in the Aboriginal world, to act as a mediator or referee so as to avoid a dispute between the parties developing into a full scale legal battle.


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