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Editors --- "Gale v New South Wales Minister for Land and Water Conservation - Case Summary" [2001] AUIndigLawRpr 49; (2001) 6(4) Australian Indigenous Law Reporter 66

Court and Tribunal Decisions - Australia

Gale v New South Wales Minister for Land and Water Conservation

Federal Court of Australia (Madgwick J)

23 November 2001

[2001] FCA 1652

Native title — Federal Court Rules O 34 r 2 — power of Court to appoint expert witnesses — special considerations in native title cases — costs — Native Title Act 1993 (Cth) s 85A(1) and (2)

Facts:

The principal proceedings involved a claim under the Native Title Act 1993 (Cth) (‘the Act’) for the determination of native title over a small parcel of land in the western part of the greater metropolitan area of Sydney. The applicant filed two expert reports. The Minister for Land and Water Conservation for the State of New South Wales, and the Derrubbin Local Aboriginal Land Council, filed reports which tended to cast doubt on the applicant’s reports. An oral application was made by the applicants that the Court exercise its power under O 34 r 2 of the Federal Court Rules to appoint an expert to report on anthropological and/or historical matters arising in the claim.

Held:

1. The primary function of an expert witness is to assist the Court in the Court’s function. Practice Direction: Guidelines for Expert Witnesses provides that experts should be reminded that their primary obligation is to assist the Court. Order 34 r 2 of the Federal Court Rules does not authorise the Court to act for the purpose of assisting any party to a proceeding against others in the gathering or presentation of evidence, although unintended or incidental assistance to a party may be a consequence of the Court’s utilisation of the power. Dalrymple Holdings Pty Ltd v Gohl [1993] ANZ ConvR 508 cited. [5]

2. The applicants enjoyed the services of a solicitor and senior counsel, although the legal advisors had, throughout, acted without fee, and filed expert evidence, which has now been revealed to those legal advisors to be deficient to support their application. The applicants’ application seeks the appointment of an expert not primarily to assist the Court in the resolution of any specialised issues in dispute but to assist them in the gathering of further expert evidence, because of their inability to fund the further provision of such evidence. Britten v State of Western Australia [2001] FCA 1256 distinguished. [6]–[7]

3. Order 34 r 5 provides that all parties to the proceedings are jointly or severally liable for the costs of the expert unless the Court otherwise orders. The power to order otherwise tells against a contemplation that, except in very unusual circumstances, the Court should pay the costs itself. However, special considerations may exist in relation to native title cases. Where applicants are embarrassed in the presentation of expert evidence by lack of funds, a Court may utilise its own power and resources when there would be a substantial probability of success if independent expert evidence were obtained. Such special considerations did not exist in this case. [8]–[10]

4. Section 85A(1) of the Act provides that unless the Court order otherwise each party bears its own costs. Section 85A(2) provides that the Court may order costs against a party if by any unreasonable act or omission that party caused another party to incur costs. Such act was not found in this case, and parties must hear their own costs of the application. [11]