Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2)

This decision arose in a broader Federal Court dispute between Steven Dhu and Brendan Dhu, as applicants, and Karlka Nyiyaparli Aboriginal Corporation RNTBC, as respondent. The applicants sought declarations connected to rights under Nyiyaparli traditional law and custom and, on that basis, membership of the Nyiyaparli People. So although the proceeding was not a native title determination application, it plainly involved cultural identity, connection to country and traditional law and custom.

The issue decided in this judgment was much narrower than the overall case. The respondent corporation asked the Court to direct that some lay witness evidence be heard on-country at Yurlu, in the Nyiyaparli determination area, during one day of the trial. The trial itself was listed for five days between 31 August and 4 September 2026. The respondent also sought leave to rely on three affidavits, but that part was resolved by consent before the matter came before the judge. What remained was the venue question.

The proposed witnesses were Leonard Stream, Keith Hall and Cate Ballantyne. The respondent said there were cultural and customary reasons for hearing the evidence of Mr Stream and Mr Hall on-country, and that Ms Ballantyne's evidence should be taken at the same time for convenience and efficiency. The applicants opposed that course and argued that the hearing should instead be conducted in the Perth registry, which they described as a neutral location.

The Court had to decide whether it was appropriate to order that part of the evidence be heard on-country at Yurlu rather than entirely in Perth. That required the judge to consider two related questions. First, did the Court have power to make that kind of order? Second, if it did, should that power be exercised on the facts of this case?

The respondent relied on the Court's broad procedural power under section 23 of the Federal Court of Australia Act 1976 (Cth), which allows the Court to make orders it thinks appropriate. It also relied on section 82(2) of the Native Title Act 1993 (Cth), which permits the Court to take into account the cultural and customary concerns of Aboriginal peoples, provided that another party is not unduly prejudiced.

The applicants argued, in substance, that the matter should stay in Perth. They submitted that the proceeding was primarily about administrative law and good faith, and that most native title aspects had already been resolved elsewhere. They also said the hearing should occur in a neutral location because of the nature of the contentions raised in the affidavits of Mr Stream and Mr Hall. The Court understood that submission as including a concern that cross-examining those witnesses on-country might be more difficult or intimidating, especially because the applicants were litigants-in-person.

Lenehan J held that the Court plainly had power to make the order. The judgment describes section 23 of the Federal Court of Australia Act as a flexible power to be exercised by reference to what the interests of justice require. The Court said that, read together with section 82(2) of the Native Title Act, those provisions clearly empower the Court to order evidence to be taken on-country if doing so is culturally appropriate and does not give rise to undue prejudice. The judge also said that the broad power under section 23 would be sufficient even if section 82(2) were put to one side.

The Court then turned to whether the order should be made in this particular case. On the cultural and customary side, the respondent relied on affidavit evidence conveying Mr Stream's instructions that on-country evidence was necessary to show respect to members, that issues of identity would usually be discussed in person on-country with senior Nyiyaparli people and the wider community, and that speaking on-country was the malpa way. The respondent also submitted that Yurlu was a proper place to speak about cultural matters and that an on-country environment could allow higher quality evidence than a courtroom.

The judge did identify a qualification. There was some uncertainty in the evidence about whether the proposed location was country the applicants said they were connected to. The respondent later clarified that it was not saying Roy Hill was the applicants' country and that this was not the reason for choosing Yurlu. The Court said it had some misgivings about the state of the evidence on that issue, but accepted that there were still sound cultural and customary reasons for hearing the evidence of the respondent's Aboriginal witnesses, Mr Stream and Mr Hall, at that location.

The Court also rejected the idea that on-country evidence is confined to formal native title determination proceedings. The judge accepted that this case was not a native title determination application, but said that understated the factual issues in dispute. The proceeding still concerned whether the applicants held relevant rights under Nyiyaparli traditional law and custom and were, on that basis, members of the Nyiyaparli People. More broadly, the Court said the considerations favouring on-country evidence can apply even outside the Native Title Act context, and referred to recent Federal Court examples in negligence, environmental and administrative law matters where on-country evidence had been taken or seriously contemplated.

The applicants' fairness concerns were taken seriously. The Court accepted that if self-represented parties have to cross-examine witnesses in a place they perceive as non-neutral, that may make the process more intimidating or difficult. The judge also recognised that some of the evidence concerned matters that were very personal and important to the applicants. So this was not a case where the Court brushed aside fairness concerns in favour of cultural considerations.

Even so, the Court concluded that those concerns did not outweigh the factors supporting the respondent's proposal. A major reason was the limited scope of the arrangement. Only a very small part of the trial was to be heard on-country. The proposal was confined to a single day within a five-day hearing, and the balance of the evidence would still be heard in Perth. That meant the applicants would still have the main hearing in the neutral location they preferred.

The Court also considered burden and cost. It accepted the respondent's submission that the arrangement was modest and proportionate. The witnesses whose evidence was to be taken on-country resided in the Pilbara. For Mr Stream and Mr Hall, cultural and customary considerations supported hearing their evidence on-country. For Ms Ballantyne, who was not an Aboriginal witness, the Court said that once the Court and parties were travelling to Yurlu anyway, taking her evidence there did not materially increase the burden and was efficient. If her evidence took longer than expected, it could be completed in Perth.

The applicants argued that the costs of an on-country hearing were uncertain and potentially significant. The Court accepted that the respondent had not provided a defined financial amount for the logistical plan. But on the material before it, the judge considered that the limited duration and logistical simplicity of the proposal suggested the costs were unlikely to be substantial. Importantly, the applicants had not put on evidence showing any limit on the costs they could meet or that they were unable to travel to Yurlu. The Court therefore found no undue prejudice on the evidence before it.

The judgment also dealt with a side issue about one of the applicants' witnesses, Mr Tucker, whose health had been raised in submissions. The Court said that issue could be put to one side because it was not proposed that Mr Tucker give evidence on-country. Any separate issue about his capacity to give evidence could be addressed later if it actually arose.

The Court allowed the respondent's interlocutory application. It ordered that the evidence of Leonard Stream, Cate Ballantyne and Keith Hall be heard on-country in the Nyiyaparli determination area at Yurlu on Wednesday, 2 September 2026. Costs of the interlocutory application were reserved.

The judge's conclusion was that, on balance, the cultural and evidentiary benefits of taking limited evidence on-country outweighed the relatively modest burden of the proposed arrangements. The Court accepted there were sound cultural and customary reasons for hearing the evidence of Mr Stream and Mr Hall at Yurlu. It also accepted that hearing Ms Ballantyne's evidence at the same time was sensible for convenience and efficiency.

Just as important as the result is the way the Court framed it. The order was not based on a broad proposition that all culturally sensitive evidence should be heard on-country. It was based on the specific record before the Court, including the nature of the issues, the identified witnesses, the one-day limit, the practical plan and the absence of evidence showing disproportionate prejudice.

For most businesses, this is not a governance case in the usual sense. It does not change directors' duties, shareholder rights or ordinary corporate compliance. Its practical value lies in litigation planning. If your organisation is involved in a Federal Court dispute, the place where evidence is heard can become a real issue, especially where witnesses are remote, the subject matter is site-specific, or cultural context may affect how evidence is best given.

The case shows that procedural applications succeed or fail on detail. The respondent did not ask for the whole trial to move. It proposed a specific location, a specific day and specific witnesses, and linked that proposal to identified cultural and evidentiary reasons. That made the request easier to assess and easier to justify. By contrast, a broad or vague request would be harder to support.

The case also shows the importance of evidence-backed objections. The applicants raised legitimate concerns about neutrality, intimidation, cost and logistics. The Court acknowledged those concerns, especially because they were self-represented. But the objections did not carry the day because the proposal was narrow and there was no evidence showing that the applicants could not travel, could not meet relevant costs or would suffer undue prejudice. In practical terms, if you oppose a procedural change, you should be ready to show exactly what the prejudice is and how it will affect a fair hearing.

Finally, this decision should be read carefully and not overextended. The Court did not say that on-country hearings are appropriate whenever First Nations issues arise. Nor did it say that a courtroom is never the right place. The judgment is a balancing exercise tied to its facts. Different evidence, a more burdensome proposal, a different witness mix or stronger proof of prejudice could lead to a different result.

Does this mean hearings can routinely be moved out of court? No. The Court relied on a specific and limited proposal supported by cultural reasons and a manageable logistical plan.

Did the Court accept every part of the respondent's evidence without reservation? No. The judge noted some misgivings about part of the evidence concerning the relationship between the proposed location and the applicants' claimed country, but still found there were sound cultural and customary reasons for using Yurlu.

Was the applicants' concern about neutrality dismissed? No. The Court accepted that an on-country setting could feel more intimidating for self-represented parties conducting cross-examination. It simply found that, in this case, those concerns did not outweigh the benefits of the limited proposal.

Did cost decide the case? No. Cost was considered, but the Court found the likely burden modest on the material before it and noted the absence of evidence showing the applicants could not meet relevant costs or travel to Yurlu.

Is this useful outside disputes involving First Nations issues? Yes, but only at a procedural level. The broader lesson is that the Court may be flexible about how and where evidence is taken if there is a persuasive, fair and practical reason.

The judgment was delivered on 27 May 2026. The interlocutory application had been filed on 8 April 2026 and was determined on the papers after timetabling orders made on 17 April 2026. The trial was listed for five days between 31 August 2026 and 4 September 2026, with the on-country evidence ordered for Wednesday, 2 September 2026. Costs of the interlocutory application were reserved for later consideration if needed.