Interlocutory application for order to take account of the cultural or customary nature of party or another person (Form 111)

Section 82(2) of the Native Title Act 1993 lets the Federal Court take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to unduly prejudice any other party. Rule 34.121 of the Federal Court Rules 2011 says a party may apply for an order to take account of the cultural or customary nature of a party or another person by filing an interlocutory application in accordance with Form 111. Cultural or customary nature means relating to the culture, genealogy, customs or traditions of Aboriginal peoples or Torres Strait Islanders (r 34.119). The example given in the rule is a ruling on the naming of recently deceased people.

When you need it

• You are a party to a native title proceeding and need orders to respect cultural or customary concerns.
• You want orders restricting access to transcript or documents, or about how, when and where evidence on a cultural or customary subject is presented (r 34.120(2)).
• Gender-restricted or secret evidence, or the naming of deceased people, needs to be managed.

1. 1

   Heading and addressees

   Use the native title proceeding's heading or the short title specified by a Registrar (r 34.130), and name each party who may be affected.

2. 2

   Hearing details

   Leave the time, date and place for the Registry, which fixes the return date (r 34.121, Note 2).

3. 3

   Orders sought

   State concisely each order sought, for example restricting who may hear certain evidence or see the transcript, or how deceased people are referred to.

4. 4

   Affidavit

   The orders are sought on the grounds stated in an accompanying affidavit. Explain the cultural or customary concern and why the orders are needed, without disclosing restricted material more widely than necessary.

5. 5

   Service, date and sign

   Choose the service option, then date and sign as the party or its lawyer.

• File Form 111 with the affidavit in the native title proceeding through eLodgment or at the District Registry.
• Serve the other parties as with any interlocutory application. The general rule is at least 3 days before the hearing (r 17.01(2)) unless the Court orders otherwise.
• If evidence is to be given by singing, dancing, storytelling or other than in the normal way, tell the Court within a reasonable time beforehand where, when and in what form, and of any secrecy issues (r 34.123).

• Raise cultural concerns early. The Native Title Practice Note expects matters of cultural or customary concern to be identified in case management (NT-1, referring to r 34.121).
• Documents referring to material claimed to be confidential or secret must have that claim endorsed on the front page (r 34.124).
• The Court may seek any information it considers appropriate from a party before making an order (r 34.121, Note 1).