Briggs on behalf of the Boonwurrung People v State of Victoria (2024) FCA 288

Background

The substantive proceeding is a native title determination application of a swathe of land and waters in Victoria filed by the applicants on behalf of the Boonwurrung People, alleging that they have native title rights and interests to lands and waters in the Melbourne region.

Meanwhile, the Bunurong respondents allege that they are Bunurong people who have traditional rights and interests in the same lands and waters as in the Boonwurrung claim area. They argue for a lineage connection to the Boonwurrung people through descent from four Aboriginal women, who were abducted by non-Aboriginal sealers in the 1820s/1830s, seeking to amend the Boonwurrung application to acknowledge these women as ancestral figures.

Following a Separate Questions Hearing from 10 to 14 July 2023, judgment has been reserved on 23 October 2023.

The applicants brought an interlocutory application seeking leave to adduce additional expert evidence concerning Separate Questions ordered to be decided in the case.

Expert evidence

The applicants sought to introduce new expert evidence from Dr. IK, an anthropologist. Dr. IK's report aimed to assess whether the four Aboriginal women could be inferred to have been members of the Boonwurrung people based solely on the fact of their abduction from traditional Boonwurrung territories.

The applicants proposed that, if their request to submit Dr. IK's report was granted, the Bunurong respondents should be allowed to respond with their own expert evidence. This would potentially be followed by further discussions, submissions, and hearings involving all expert witnesses.

The primary thrust of applicants' submissions, among others, are that: [a] prior to and at the time of the Separate Questions Hearing, their lawyers were not aware of important developments in the mid-20th century in anthropological theory and models in relation to Aboriginal social organisation at a local level; and [b] their lawyers were not aware of those developments because they were not apprised of them by the experts they had retained.

The court dismissed the application to adduce additional expert evidence.

Murphy J found that the application has little merit, and thus refused it. The timing of the application, the nature of the evidence proposed, and other procedural or substantive issues led the court to determine that the additional expert report would not significantly contribute to resolving the Separate Questions already under consideration.

In its determination, the court considered the following:

a) There is an "exceptional circumstances" requirement. The discretion to reopen a case after judgment is reserved should only be exercised in exceptional circumstances to uphold the public interest in the finality of litigation. It was ruled that the applicants put on nothing to show that this case involves exceptional circumstances.[53]

b) On materiality and impact of evidence, it was held that new expert evidence must be so material that the interests of justice require it or would most probably affect the result. In this case, the evidence presented did not meet this threshold. The court was not satisfied that Dr. IK's evidence would "most probably" affect the result.[54]-[55] As to relevance, Dr. IK's report was deemed partial and hypothetical, reducing its probative value. Additionally, criticisms of existing expert opinions did not justify the introduction of new evidence.[55]

c) The evidence proposed by Dr. IK was not considered "fresh evidence". According to the court, the nature of the proposed additional expert evidence (i.e., expert opinion about past significant developments in anthropological theory and models, and their application in this case) means that it is not "fresh evidence". While it is "new" in the sense that the applicants' lawyers were not aware of it, it could have been discovered earlier by the applicants' lawyers with reasonable diligence.[63]

d) The question of whether it can rationally be inferred from the place of abduction that an Aboriginal woman abducted in the 1830s from traditional Boonwurrung country was a Boonwurrung person is not a new issue.[66]

Further, the court said that granting leave for the additional evidence would result in significant delay and wasted costs, impacting the timely resolution of the disputes, as well as inefficient use of judicial and administrative resources. Leave was therefore refused also based on the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), to facilitate the just resolution of disputes as speedily, inexpensively, and efficiently as possible.[76]

Key Takeaways:

  • New expert evidence must be so material that the interests of justice require it or would most probably affect the result.
  • Expert opinion about past significant developments in theory and/or models is not "fresh evidence". While it may be "new" in the sense that the applicants' lawyers were not aware of it, if it could have been discovered earlier by the applicants' lawyers with reasonable diligence then it not fresh and therefore not admissible.
  • Granting leave for any additional evidence must be balanced against the overarching purpose of just, quick, and cheap administration of justice.

Read the full decision here.

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