The State of Western Australia v Ward and ORS S36/1997 [1997] HCATrans 326 (20 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P36 of 1997

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Applicant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNIE CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, PETER NEWRY, on behalf of the MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

and

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK McDONALD and DIANNE DINGAL

Second Respondents

and

DELORES CHEINMORA, MATTENMORO (Martin Clark), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (Learay) MITCHELL, MARY TERESA (Taylor), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS, ROY MARTIN on behalf of the BALANGARRA PEOPLES

Third Respondents

Application for special leave to appeal

TOOHEY J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 20 OCTOBER 1997, AT 2.26 PM

Copyright in the High Court of Australia

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear for the applicant with my learned friend, MS K.H. GLANCY. (instructed by the Crown Solicitor for the State of Western Australia)

MR M.L. BARKER, QC: May it please your Honours, I appear with my learned friend, MS A.M. SHEEHAN, for the first respondent. (instructed by the Aboriginal Legal Service)

MR G.M.G. McINTYRE: I appear for the second and third respondents. (instructed by R. Levy, Northern Land Council and by Ms J. Melbourne, Kimberley Land Council)

TOOHEY J: Yes, Mr Solicitor.

MR MEADOWS: May it please the Court, this application arises out of an order made by Justice Lee establishing a protocol with regard to what has become known as gender restricted evidence. In essence, the order which his Honour made established a regime under which persons of one gender would not be privy to evidence given by witnesses of the other gender in circumstances where that evidence concerned matters related to their culture or ritual or things of that nature which were, as part of that culture, restricted to persons of that particular gender.

The result of that has been that a number of orders have been made in line with that protocol and these can be found in the application book at pages 89 to 93. Sorry, that is the affidavit of Ms Glancy, I beg your pardon, your Honours, which exhibits the orders. But you can see from those orders that effectively - - -

GUMMOW J: Page 95?

MR MEADOWS: Pages 95 and onwards. There are four exhibits there of orders made in line with that protocol. As you can see from them, essentially, persons of the other gender are precluded from being privy to that evidence.

TOOHEY J: Is the order expressed in such absolute terms?

MR MEADOWS: Subject to leave, there is the capacity to apply for leave for persons of the opposite gender to be shown at least the transcript of that evidence, but the essential characteristic of the orders is that persons of the opposite gender are to be excluded. The outcome of that is that at the end of the case there will be no one person involved, in the case of a party, who will be privy to the whole of the evidence which has been led and which will form the basis for the judgment of the court.

Our primary contention is that that is contrary to the requirements of Chapter III of the Constitution which require this Court to accord procedural fairness to litigants who come before it. Now, this appeal raises a very - - -

GUMMOW J: Does that involve saying that section 50 of the Federal Court of Australia Act and perhaps section 74 of that Act are invalid or have to be read down in some way?

MR MEADOWS: It certainly would involve the proposition that they ought be read down, certainly to the extent that an issue such as the gender of counsel could play a part in determining whether or not counsel could be present in court while the evidence was given or otherwise be privy to that evidence.

HAYNE J: The proposition is an absolute proposition, is it, that consonant with natural justice or procedural fairness, you can never make an order the effect of which would preclude one person having control of the whole case?

MR MEADOWS: That is right, your Honour. The nub of the proposition that we put is that in order for a party to be able to meet the case put against it, then at least somebody representing that party, whether it be the party themselves or whether it be counsel for the party, must be privy to that evidence or al l of the evidence.

TOOHEY J: You mean one person must be privy?

MR MEADOWS: At least one. Perhaps I should say this, that our propositions are in descending order and our final proposition is there must be at least one person who knows the whole of the case which is put against the party.

HAYNE J: It is a proposition that seems to run against the old two counsel rule, does it not, Mr Solicitor, that a case was appropriate for the retainer of two counsel on the basis that the work had to be split.

MR MEADOWS: Yes. When I say that, that is our bottom proposition.

TOOHEY J: What is the top one?

MR MEADOWS: At top, we would say that a party is entitled to be represented by counsel of their choice, be it one or two or even more, regardless of their gender, provided that person is not disqualified in some way from appearing in the matter, either by reason of a conflict or perhaps some perception of bias.

TOOHEY J: That is a fairly strong proposition though, is it not? I mean, there are occasions, not of this sort, but where a party by reason of the listing of a matter is unable to have the counsel of his or her choice and courts generally have regarded that as fairly low down the list of priorities when it comes to moving a date or fixing a date for the hearing of the matter.

MR MEADOWS: I would accept that proposition, but what we are submitting is that, on the day, when you have counsel there ready and available and qualified to appear for you, then you are entitled to have that person appear for you unless they are in some way disqualified and certainly a person could not be disqualified simply because of their gender.

TOOHEY J: Disqualified in the sense, I take it you mean, that in the case of male restricted evidence, a female counsel would not have access in the terms of this protocol to certain material and conversely, in the case of female restricted evidence, a male counsel would not have access to some of the material.

MR MEADOWS: That is so.

TOOHEY J: Does that mean that the counsel would have no knowledge whatsoever of the material?

MR MEADOWS: That is the case. My learned friend, Ms Glancy, who appears with me is privy to the gender restricted evidence given by women pursuant to the order which you will find at pages 103 and 104. She is in a position where she is unable to tell me anything about that evidence.

TOOHEY J: You mean literally anything about it? I just canvass whether it is possible for some paraphrase, some summary, some reference to the material that does not impinge upon anything that might ordinarily be regarded as restricted in the sense in which you are using the term.

MR MEADOWS: If you look at the second order at page 104 it says:

The evidence given must not be divulged to any person not present at the hearing without the leave of the Court and no copies are to be made of the transcript other than copies as authorised above.

TOOHEY J: But the order that is appealed against or is the subject of the application is the order in general terms, is it not, of the Full Court?

MR MEADOWS: It is, yes.

TOOHEY J: And the significance of the particular orders that you have taken us to, it is what, Mr Solicitor, indicative of the sort of orders that have been, and may be made?

MR MEADOWS: That is right, and have been made in line with the protocol which his Honour established in that earlier order. Our purpose in bringing this appeal is to, if possible, have the situation corrected so that before the case comes to a conclusion, the evidence can be considered by counsel who are conducting the case on behalf of the applicants.

TOOHEY J: Yes, I understand that. The difficulty perhaps is that unless you are contending for a proposition in quite absolute terms, the orders or the protocol that has been designed thus far at least admits of the possibility of some reference to this restricted evidence being given, does it not?

MR MEADOWS: With respect, it does not, because if you go to the order itself that is appealed against - - -

TOOHEY J: It is page 17.

MR MEADOWS: Pages 17 through to 19.

TOOHEY J: And that was qualified in one respect by the Full Court when the matter went on appeal and that is at page 50.

MR MEADOWS: Yes, which required his Honour to examine the circumstances before imposing an order of this sort. So if one looks at paragraph 7 of the order at page 18 one can see that it is intended that there should be an absolute restriction subject to the ability to apply for leave.

TOOHEY J: But again, unless you succeed in making good, if special leave were granted, a proposition in equally absolute terms, in a sense, but the converse, what is likely to be the result of an appeal? The orders sought are simply seeking the setting aside of the protocol and not substituting any sort of direction.

MR MEADOWS: No. What we ask for in our draft notice of appeal is that his Honour be directed to proceed in accordance with the Court's reasons which we say would enable him to revisit each of the orders that he has made and to make appropriate orders which would result in at least somebody representing the applicant being able to be aware of all of the case that is put against it. One wonders what his Honour would do when it comes to the writing of reasons, though. If you look at the orders that have been made, he is proposing that the transcripts of the evidence would ultimately be destroyed. So presumably he is contemplating that findings as to incidence of native title can be made, not only without disclosing it to at least one person who is privy to the whole of the case but in a way where there may be a finding that native title exists there which may not even be expressed in the judgment.

HAYNE J: Yes. That is the sort of problems judges have confronted in trade secret cases for many many years, is it not, Mr Solicitor?

MR MEADOWS: Yes, I appreciate that, your Honour, but in the trade secret cases counsel has always been privy to the evidence. It may be that it is kept from the party who might benefit from the trade secret, and if you look at the examples given - - -

HAYNE J: But the writing of the reasons confronts the problem of how do I describe what is so secret about this, without disclosing the secret.

MR MEADOWS: Yes. But there must be an expression of the reasons in some form and the way in which it seems to be being contemplated here, we would say, would result in a manifest injustice. If one looks at this question about whether there are any examples of where at least one of the representatives of a party should be aware of the case that is put against the party, if one looks at the outline of submissions which we have presented to the Court, your Honours will see that we list a number of illustrations of where the Court does have control of its proceedings, and these are to be found in paragraph 12 of our submissions at page 65. But the point that needs to be made is that with respect to all of those examples there has always been the ability for at least one person representing the party to be aware of the case that is put against the party.

My learned friend, Mr Barker, has sought to present some examples of where he says, in principle, an order of this sort is sanctioned. We will find this at page 75 of the application book where again a number of instances are listed of courts acting in a way to control the access of evidence to various parties. But in none of those instances, again, is there an example where you finish up where nobody representing the other party is aware of the case that is being put against that party.

TOOHEY J: Is that right? I mean, is that a consequence of the protocol that has been devised? No one person, you say?

MR MEADOWS: Yes, no one person. So Mr Pullen who is senior counsel, for example, will not be aware of the evidence which has been given in the secret women's business sessions.

TOOHEY J: But submissions can be made and argument advanced by another counsel.

MR MEADOWS: Yes, that is so, but that evidence cannot be tested against other evidence, particularly if it is male restricted evidence, because Ms Glancy is not going to be privy to that. The witnesses cannot be cross-examined on the basis of instructions obtained about that evidence. There will be no opportunity to consult an anthropologist who might have been selected by the applicant to consider that evidence and to evaluate it. Nor would there be an opportunity to take instructions about that evidence. Take, for example, an incident of native title which could possibly exist where men go to a particular place at a particular time of the year to conduct some form of ritual. Now, it may be that such evidence, if it was given, could be controverted by other witnesses, but if those other witnesses - - -

TOOHEY J: By female witnesses?

MR MEADOWS: By female witnesses.

TOOHEY J: It would have to mean that.

MR MEADOWS: It would, and it may well be contradictory in various ways. As my learned friend, Ms Glancy, points out to me, at the moment it is not simply confined to females; it is confined to the females who are mentioned in the orders. So it would not be possible to obtain instructions, for example, without leave from other females.

GUMMOW J: What would the position be if a particular client simply insisted on instructing counsel and solicitors all of one particular gender?

MR MEADOWS: We would say that under the protocol as it has been established they would be at a significant disadvantage, and a disadvantage which we would say did not accord with procedural fairness. This is an important case, your Honours, because it sets the scene for this type of evidence in relation to numerous forthcoming native title cases. May it please the Court.

TOOHEY J: Just before you sit down. Can I just ask you this, as it were, to explore the consequences of the proposition or the position as you contend for, Mr Solicitor. Could any restrictions at all be placed upon what has been referred to as gender restricted evidence?

MR MEADOWS: Yes, we would submit, and we have said so in our submissions, that counsel could be required to give an undertaking that the evidence in question would only be used for the purpose of the proceedings and not be disclosed for any other purpose or for the purposes of obtaining instructions in some limited way. There are qualifications that could be put on it. We do not say that there is necessarily an absolute right to hear everything and say everything. But once you get to the fundamental proposition that the party is entitled to have at least one person know of the case against them, then you have crossed the line.

TOOHEY J: That is really the bottom line as far as the applicant is concerned.

MR MEADOWS: It is. As I say, we start higher. That is our bottom line which we would say would be sufficient to give us a successful application for special leave.

GUMMOW J: Now, Mr Solicitor, how would this protocol affect the judge and the judge's staff in the preparation of reasons for judgment and so forth?

MR MEADOWS: His Honour has said that he has to hear the case, so he is going to hear it all. In fact, the women's evidence has been given before him. But as I understand it, his staff at that time were female when that evidence was given. But when you come to dealing with the evidence and judgment writing, then it becomes a very problematical situation.

GUMMOW J: But that situation, problematical as it is, is that dealt with in the protocol?

MR MEADOWS: No, it is not, because it is really directed to the parties and their representatives. May it please the Court.

TOOHEY J: Thank you, Mr Solicitor. Mr Barker.

MR BARKER: May it please the Court. Perhaps I can commence by indicating to your Honours what I think is plain from the application book at this point, particularly the terms of the orders that have been made that appear at page 95 and following of the application book, that his Honour has exercised his discretion on each occasion the question has arisen, and there has not been a blanket application of what has been referred to as the protocol order. Your Honours have received a number of copies of the orders but not all of them, as explained in Ms Glancy's affidavit.

GUMMOW J: What happens if there is some disobedience to the protocol? Are there contempts of court committed, are there?

MR BARKER: It would be the case, your Honour, as with breach of any order. What has happened is that his Honour in acting upon that protocol has required notice to be given of the occasions upon which the party proposes to induce restricted evidence. There is an opportunity for objections by opposing parties. His Honour has engaged in what is essentially a voir dire before taking that evidence and indicating whether it may be the subject of a restricted evidence order of the type applied for. Those materials have not been put in the application book but I have, for example, the voir dire conducted on 6 August in relation to when the first order was made, and I just circulate those to members of the Court.

GUMMOW J: I see it can be one thing to so write a judgment that one does not trespass into these areas, whether by schedules which are permanently sealed or whatever, but it must be another for one party to be able to impose its beliefs upon another in this way as to the reception and the treatment of the evidence at trial which determines the rights of the other party. What is it that is so special here that it requires all this - - -

MR BARKER: Your Honour, there is nothing in - - -

GUMMOW J: It may not be special for all sorts of other sections of the community from time to time.

MR BARKER: It may not be, but the protocol order itself and the judgment of his Honour recognised that it is notorious that Aboriginal culture may be sustained in part by these secret aspects of its own lore. What his Honour has done is not, as I say, in a blanket way to impose the protocol order - - -

GUMMOW J: But that is not the point, is it? It can remain secret. The question is to whom the secret is to be confided and on what terms.

MR BARKER: Yes, that is so. But, your Honour, the attack on the order is in a blanket or absolute way, that you cannot make an order which might be gender restricted in the way that his Honour proposed and has, in fact, done. In my submission, it depends in each case on the nature of the circumstances of the people who seek that order; why an order in gender restricted terms is important to them.

GUMMOW J: Yes, but it is important to the other side.

MR BARKER: Yes, it is, and it may then be, in the judge's exercise of his discretion, it is necessary for him to take into account what harm might be caused to the interests of the respondent in a trial such as this.

GUMMOW J: There has to be some departure, does there not, because there can only be a judge of one particular gender.

MR BARKER: That is so.

GUMMOW J: So there is some waiver involved in all of this of necessity, presumably. The question is how far does the necessity go for people invoking the judicial power to their assistance.

MR BARKER: In the case of a male judge, the female witness who is concerned about their evidence remaining secret will be forced to make a decision about how far they are prepared to go. The transcript of the evidence in this case discloses there was something like 12 pages of female evidence the subject of that order. The men have given more extensive evidence as the subject of the order on three separate occasions.

TOOHEY J: What is put against you by the Solicitor is that if, for instance, women gave evidence in a restricted context or for that matter men gave evidence in a restricted context, that evidence could not be tested against evidence given by persons of the other gender. Is that an inevitable consequence of the protocol?

MR BARKER: With respect, no, your Honour, it is not. My submission in relation to that, and something fleshed out in the written submissions, is this that that submission, in fact, on the face of it, misconceives the nature of the evidence that is sought to be kept secret. By definition, evidence that is secret for men and never shared with women is something women do not know anything about and vice versa, women in relation to men. There is no intersection between the cultural information that can be tested in the way that has been suggested. In every other - - -

HAYNE J: The point is it is said that you can test if there has been intersection and it is no longer gender specific, that is the point that is made against you.

MR BARKER: Your Honour, it assumes that argument that that may possibly be the case and in a cultural system, in my submission, where on the evidence that is notorious, as his Honour in making the protocol order said it was, or as the case has developed in the taking of voir dire evidence, and that is public evidence, the voir dire evidence of the type that I have handed up to you, it is plain that this is only evidence for men or, in the case of women, for women. Never can the two intersect in the way proposed.

TOOHEY J: In other words, if women gave evidence of a particular site as being of considerable importance to them, I take it you are saying that would not be undermined in any way by men who said the site was of no importance to them at all.

MR BARKER: Absolutely, your Honour.

TOOHEY J: And conversely.

MR BARKER: Or, indeed, by two sets of evidence, for all I know, being given in respect of the same place which has a different cultural content.

TOOHEY J: But it does assume that sort of evidence, or any evidence, falling within this restricted category can never really impinge one upon the other, does it not?

MR BARKER: It does. It depends upon the proposition, your Honour, that they do not arise from a shared cultural proposition, if you like, that the women's lore derives from its own sources and the men's from its. So that they cannot be tested each against the other. That is what the proposition depends upon. But in every other respect, your Honours, the manner in which the trial is proposed to be conducted, has been conducted and will continue to be conducted, cannot in my submission in any way be seen to be running or capable of running contrary to the dictates of procedural fairness. The parties were represented by appropriate counsel; they all know what is at stake, so far as the issues of native title are concerned; counsel can examine, cross-examine parties to their hearts content in relation to the relevant matters and any questions that might go to the sorts of issues that the Solicitor might seek to raise can all be pursued to an extent in the course of cross-examination.

His Honour has not ruled out, as your Honour Justice Toohey pointed out earlier, leave being given for purposes that might be pertinent in the case. He has not made a once and forever rule about that. If it could be demonstrated to his Honour that somehow it would be important to take instructions from some other party, or it might be important to disclose the information to some other party which would otherwise be in breach of the restricted evidence order made, then of course that application could be made and such an order could be made if it were going to serve the outcome of the case. But there has been no suggestion that that is necessary in this case. The argument is put in the abstract. There is no basis for it in the abstract and, in my submission, if there were in the facts of the case and what is being put forward, the parties, the respondents could make that application to his Honour. They have chosen not to do so and they have not put forward any demonstrated adverse consequences to the presentation of their case.

GUMMOW J: Are you saying this application is premature?

MR BARKER: Your Honour, in a sense I am. I said the same thing before the Full Federal Court, with respect, because all his Honour did is make a procedural direction to say there may be circumstances where it will be appropriate to have, to use the expression "gender restricted evidence". What the Full Court emphasised in their judgment was that that discretion undoubtedly exists, in my words, for the court to control its own procedure in appropriate cases to make an order of this type. But it must always be made to serve the dictates of justice. It is for the judge on each occasion it is asked for to consider the evidence, consider what is before him, consider the relative positions of the parties, what the adverse consequences for one party might be if it is made. And that is what his Honour has done. So, in that sense, this appeal is, with the greatest respect, premature because it assumes an absolute position.

As I said at the outset, the orders from page 95 of the application book on show it. There has not been a simple application of the protocol order. In most respects, the protocol order has been put to one side. The parties, through the applicants, have sought an order of a certain type. They have not in fact been required to seek an order excluding men or women from the hearing because the representatives for the other parties have not attended with inappropriate persons. His Honour has taken voir dire evidence, he has considered the position, he has exercised his discretion judicially, in my submission, in every respect.

That shows, coming back to the primary submission put by the Solicitor, that the absolute argument or the fundamental proposition that a party must be represented by one person throughout the proceedings, or at least a person who can - his legal counsel can have access to all of the evidence really, in my submission, is misconceived. The parties are represented throughout these proceedings. They have access to all of the evidence. They are able to test that evidence in the course of those hearings, including in the restricted evidence sessions. They are able to make full submissions in relation to those matters. If, in the course of the hearing, your Honours, any issue should arise which requires some variation from the order, then the parties are at liberty to go back to the trial judge and seek some variation of that order. He has not ruled that out on the terms of the order.

GUMMOW J: Now, would the protocol restrict communications between counsel and client?

TOOHEY J: Would not order 13 on page 19 have that effect?

MR BARKER: That goes specifically, paragraph 12 at page 19, to lawyers and anthropologists in 12(a) and - - -

TOOHEY J: Order 13 would, without the leave of the Court, preclude the transmission of any material to a party, would it not?

MR BARKER: Yes, that is correct, your Honour. If one goes to page 95 and considers the type of order that has in fact been made by his Honour, for example, paragraph 2 at page 96, the order made on 6 and 7 August 1997, it is a proscription on the divulging of evidence to persons not present at the hearing, and there has been at least one occasion when persons who may be considered agents of one of the parties were, in fact, present, for example, the hearing at Tjigiritjkibakumangim on 6 August 1997. So the orders actually made have been in terms of not to be divulged other than to persons present at the hearing or otherwise named without leave of the court.

So again it comes back to the proposition, in my submission, as to what is appropriate in the circumstances. No party has asked for leave for the information adduced on that occasion to be shown to or read to clients. If that were a proposition that seemed important, then again that application could be made to the trial judge and if it seemed to be an appropriate and necessary step in the trial, then no doubt the matter would be considered. That remains the position. There is no necessary reason under the protocol or the types of orders that have been made why a party might not have the opportunity to see the evidence adduced or, indeed, to be there on appropriate occasion. There have not actually been orders excluding persons from the hearing. It has not been necessary.

TOOHEY J: That is coming fairly close, perhaps, to a submission that the application is premature in so far as it challenges the protocol in a general way rather than a challenge to an order made in respect of a particular piece of evidence which may be susceptible of challenge by reference to the particular terms of the order. In other words, if it does contain an exclusion of communication, for instance, to the party.

MR BARKER: Yes. Your Honour, that - - -

TOOHEY J: The Solicitor, on the other hand, says these problems are going to arise. They have arisen already, they will continue to arise in regard to these claims. It is better the matter be clarified now rather than later. But I am not sure what clarification means in those circumstances except by reference to the particular situation that arises.

MR BARKER: Your Honour, our primary submission is to this effect, that it seems to be considered there is some novelty in what has transpired here and, in our submission, there are perhaps some novel circumstances which have arisen since the common law was declared in Mabo and the Native Title Act was passed but there is no novelty about the power of the court to make orders such as this in appropriate circumstances. The principle at stake is absolutely crystal clear, that it has to be a power exercised in the due administration of justice, to advance justice, to meet the dictates of justice.

GUMMOW J: Yes, but what is justice in one person's eyes is not justice in another person's eyes. It just becomes an incantation.

MR BARKER: Your Honour, that may be so, but unless one, with respect, can rule out, as the Solicitor would have you do, the possibility of such an order being made in appropriate circumstances, then it is the case that in each circumstance the court must hear the evidence and make a judicial decision about what is appropriate. Now, the protocol - - -

GUMMOW J: Your point, in a way, is that all these orders, some of them in their terms expressly, are subject to a further order granting leave.

MR BARKER: Yes.

GUMMOW J: You say, well, that can be dealt with as and when a particular point arises.

MR BARKER: I do, your Honour, and I say the protocol envisaged that, as did the Full Federal Court's decision. And that is exactly what has happened since. And if there are complaints about what is happening in the circumstances of the case, if there is to be an attack on the discretion as it has been exercised, then one has to have full regard to the circumstances in which that order was made. And this is not that case. There is nothing inherently objectionable in the court exercising such a discretion at trial. May it please your Honours.

TOOHEY J: Thank you, Mr Barker. Mr McIntyre.

MR McINTYRE: Your Honours, it needs to be remembered that this is an appeal which suggests either that what his Honour Justice Lee has done and has been approved by the Full Court of the Federal Court is contrary to the Constitution or it is a misinterpretation of the Federal Court Act or it is a misinterpretation of the Native Title Act or, finally, that it is a denial of natural justice and in that respect the discretion has miscarried. Those, if they were made out, might be suitable subjects for the consideration of this Court on an appeal but our contention really is that the first three of them, at least, do not come to the Court in a form which would be worthy of consideration by the Full Bench of this Court by way of appeal. That is there is no true Chapter III issue in these proceedings. There is no true misinterpretation of the Federal Court Act or the Native Title Act. That is made quite clear by the reasons for decision of the Full Federal Court.

So we are down to the question of whether, in the exercise of the court's discretion at first instance, there has been a denial of natural justice. The rule, we would suggest, is quite well put by the Full Federal Court, that is that it is always a matter for the consideration of what is appropriate in the administration of justice. That is the rule. The way in which that rule is applied must depend upon the particular facts or circumstances of the case obviously.

It is dangerous to try and deal with these questions in some kind of abstract. For instance, your Honour Justice Gummow raised the question "What if a particular party chose only to instruct counsel of a particular sex?" That may be an issue of some concern if that circumstance arose, as Mr Barker has pointed out. We are yet in the position of dealing with those particular facts or circumstances as they arise in the course of these proceedings in front of his Honour Justice Lee.

It does not help to have that question raised. In a sense that question is not raised in this case and it could not really be effectively answered in this case. Likewise, questions of court staff, transcript staff and all of those sorts of matters. Now it would appear that the court has come to some arrangement which takes account of the public interest which the court has identified in the protection of the particular interests of the applicant litigants in the proceedings in the Federal Court. It has balanced the justice between disclosing their secrets within the terms of their culture as against the requirements of ensuring that justice can be done.

It would not be appropriate to interpret the order which says that the evidence must not be divulged as meaning that no counsel can be aware of the nature of the evidence or, in fact, aware of sufficient of the evidence to be able to present the case in an appropriate way.

Your Honour Justice Hayne pointed to the trades secrets cases where, for instance, the judge in dealing with the matter can describe the evidence without disclosing the evidence. In the same way, counsel who is appearing in a particular matter may well be able to describe the evidence to counsel with whom that other counsel is appearing without disclosing the evidence. So those dichotomies are there, those matters are able to be dealt with in a practical sense and they have been dealt with in a practical sense by the trial judge, bearing in mind the public interest in protecting the particular religious sensitivities of a plaintiff as against the obvious public interest and public disclosure and the ordinary course of conducting proceedings where counsel is aware, in normal circumstances, of everything that occurs.

TOOHEY J: This tends to suggest that the protocol might benefit from some refining.

MR McINTYRE: Yes, it might, and as you saw in the order that the Full Federal Court made, they sought to refine it in a particular way. That refinement has had its - - -

TOOHEY J: I am not suggesting that the refinement is appropriately the province of this Court, but it may be that these matters have not been sufficiently explored below.

MR McINTYRE: As my learned friend, Mr Barker, suggested, the way in which the trial judge has in fact dealt with the matter has resulted in a degree of refinement, and the matter has not been bound solely by the protocols. There has been a voir dire; the parties have all been appropriately represented; made their submissions, and orders have been made which are satisfactory to the parties, subject, of course, to the underlying concerns which the parties in this application have had. But, the refinement of them is really a matter of being dealt with at a practical level, and really cannot, in our submission, be helped a great deal by this Court because ultimately, we would suggest that this Court would eventually tell the parties that the administration of justice is the key; that the circumstances have to be sorted out in accordance with the balancing of those kinds of interests.

The trade secret sort of cases are good examples. There is one example in the Warner-Lambert Case where the court decided that they would engage an independent solicitor to go and inspect the secret process and report back to the court. That was quite a novel process, without revealing to any of the parties what the secret was that he had inspected. One might say that would fall foul of the learned Solicitor-General's point of view as to what would be appropriate in the conduct of litigation, but it was a solution that was found to be an appropriate way to administer justice. Then he would probably answer me that counsel was, in that case, ultimately allowed to look at the result of the report of the independent solicitor. There are many ways in which these processes can be practically dealt with. The learned trial judge in this case is in the process of doing that, and there is nothing wrong with the principle which the Full Federal Court has set for him as the one by which he must be guided. In those circumstances, we would suggest, there is very little that this Court could help with.

Just on the minor point, perhaps, of the question of the testing of evidence. You will see in my written submissions if you have looked at them, or may look at them afterwards, that I have used an example of the difference between the Masons and Catholics, as two separate kinds of cultural groupings. That is an illustration, we would suggest, of the kind of difference between men's restricted evidence and women's restricted evidence, which Mr Barker has explained in a slightly different way. It is really the case that there will be nothing gained by one counsel being privy to one set of customs as against another set of customs, in order to test them. In our submission, that is a furphy, really, by way of an illustration of what the problem is to be corrected in this case.

GUMMOW J: If it gets difficult for counsel between themselves, they have to go back to the judge and get the variation. That is how it would have to work, practically.

MR McINTYRE: That is right.

GUMMOW J: If they cannot prepare their case properly without fuller communication between them, then they have to go back.

MR McINTYRE: Yes, that is right. The same applies to parties, as discussed with Mr Barker. The reality is, that in this case it is a very small quantity of the evidence which is, in fact, subject to these sorts of restrictions. My suspicion is that the actual content of the restricted part of it may not play an important role in the determination of the result; but that is a matter which we will know at the end of the day. It is not a matter which really needs to be corrected at this time.

TOOHEY J: Thank you, Mr McIntyre. Mr Solicitor.

MR MEADOWS: There are just two points I wish to make in reply, if it please the Court. The first is, we seem to be being offered a promise that the two cultural aspects will never clash - that there will never be an inconsistency. I ask, rhetorically, how will we ever know unless at least one person is made privy to the two sets of evidence. What of the person who is not privy to the culture at all? If somebody, for example, says that they perform a particular ritual at a particular time, and that happens to be on a pastoral property, and the pastoralist is able to give evidence which might contradict that - how do you ever get instructions about that if you are unable to seek those instructions from that particular person because of their gender?

GUMMOW J: I think it is put against you, Mr Solicitor, that you may well be right about there being a crunch point, but that what one would really need is a demonstration by reference to a specific incidence that the crunch point had arrived and had been resolved in a way that one particular side said was so disadvantageous to it.

MR MEADOWS: But the difficulty with that, your Honour, is you never know when the crunch points come because you do not know what the evidence is, and you do not know who you can get the contradictory evidence from, because you cannot talk to that person about that evidence.

TOOHEY J: I see that, but that seems to fasten on to a very - I will not say narrow - but a particular aspect of the evidence. I mean, it may be, for instance, that there is a question as to whether people have visited the area. Witnesses may say they visited for the purpose of ceremonies. There would be no difficulty, surely, in asking, say, the station owner or anyone in the area, have they seen people in this vicinity in the last X number of years? That does not trespass upon that sort of evidence, does it?

MR MEADOWS: With respect, it does, your Honour, because it would divulge evidence that women conduct ceremonies in that area, for example.

TOOHEY J: Not necessarily, no. The question may be merely whether there have been people visiting the area. It is just the way you put the case seems to be that anything at all that emerges from that restricted evidence, even though there may be nothing restricted about it in one sense, it cannot be the subject of being tested.

MR MEADOWS: That is the essence of the order, we would say.

TOOHEY J: But surely, in those circumstances, that is when one would go back to the judge and get some variation.

MR MEADOWS: How do you know whether you should go back to the judge, if you do not know what the evidence is, and you do not know whether there is a person available to contradict that evidence because you cannot put it to them.

HAYNE J: But every secrets case that has ever been run, counsel has encountered the problem usually in an acute form, but they cannot go and speak to their client, who is the very one who will be able to tell them where the fault in the other side's case lies. It is the problem that is encountered daily, is it not, Mr Solicitor?

MR MEADOWS: It can, but the fact is that counsel will know all of the evidence that is against them. The other factor of that, of course, is - - -

GUMMOW J: You say here, counsel collectively will know, but that is not enough.

MR MEADOWS: No, it is not, your Honour, because they cannot compare notes.

GUMMOW J: If they cannot compare notes, and one thinks they really should be able to, that is the time to think about going back to the judge.

MR MEADOWS: How do you know, because you do not even know what the evidence was. You do not know what it is about.

GUMMOW J: One of you does.

MR MEADOWS: The other point that I wish to make is about whether this is premature or not. We would say that there really is not any necessity to have any particular evidence about this. It involves an issue of principle which can readily be determined by the court.

TOOHEY J: The Court will take a short adjournment to consider the course it will follow.

AT 3.18 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.27 PM:

TOOHEY J: This application relates essentially to procedures devised by a judge of the Federal Court for dealing with what has been referred to as gender restricted evidence in a Native Title Act hearing. Those procedures were, in substance, upheld by the Full Court. These are matters best left to the courts below unless the procedures necessarily offend some basic principle. The principle sought to be established was that it is an essential element of procedural fairness that a party may always have one representative privy to all evidence given in the case.

In the circumstances in which the procedures have been devised, and having regard to the sort of orders that have been made to date, which may be modified by leave, the Court is not persuaded that any such principle, if it exists, has been offended. Accordingly, special leave to appeal is refused.

MR BARKER: Your Honour, I think I am obliged to ask for costs.

TOOHEY J: You are not obliged to.

MR BARKER: I do ask for costs, yes.

TOOHEY J: Do you have a similar obligation?

MR McINTYRE: I have strong instructions to seek costs.

TOOHEY J: Mr Solicitor?

MR BARKER: I have no comment to make, if it please the Court.

TOOHEY J: The application is refused with costs.

AT 3.28 PM THE MATTER WAS CONCLUDED