FEDERAL COURT OF AUSTRALIA

 

Cubillo v Commonwealth of Australia [1999] FCA 518

WRONGFUL IMPRISONMENT – allegation that removal and detention of applicants was unlawful and beyond the powers conferred by the legislation – alleged failure to consider whether removal and detention was necessary or desirable in the interests of the applicants – whether there was a failure to take into account relevant circumstances – whether the decision maker took into account irrelevant circumstances – questions of fact that are available to the applicants to be resolved at trial

STATUTORY DUTY – whether civil recovery for alleged breach is available – status of “Welfare Statutes” – Court’s inability to question policy – factual assertions that conduct fell outside policies sufficient to sustain cause of action

DUTY OF CARE – see Wrongful Imprisonment and Statutory Duty above

FIDUCIARY DUTY – whether the relationship of guardian and ward creates a fiduciary relationship – a question of fact to be determined on the evidence

PRACTICE AND PROCEDURE – application for summary dismissals – claim of irreparable hardship and prejudice to the respondent because of applicants’ delay in institution of proceedings – applicants’ applications for extensions of time within which to institute proceedings not yet heard – whether the Court should consider respondent’s application for summary dismissals without having also heard evidence in support of applicants’ applications for extensions of time – test to be applied – whether it is apparent that the actions must fail

The Constitution s 75 (iii)

Judiciary Act 1903 (Cth) s 44

Limitation of Action Act 1981 (NT)

Aboriginal Ordinance 1918 (NT)

Welfare Ordinance 1953 (NT)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Northern Territory (Administration) Act 1910 (Cth)

Northern Territory Government Ordinance 1911 (NT)

Federal Court Rules O 13 r 4(1)(a), O 20 r 2

Kruger v Commonwealth of Australia (1997) 190 CLR 1 applied

In the Marriage of B and R (1994-1995) 19 Fam LR 594 noted

Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 followed

Palmdale Insurance Co (in liquidation) v L Grollo & Co Pty Ltd (1984) VR 408 distinguished

Walton v Gardiner [1992-1993] 177 CLR 378 applied

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 631 cited

Bass v Permanent Trustee Company Ltd (unreported: judgment delivered 24 March 1999) cited

Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 followed

Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 referred to

Lonhro Plc v Fayed (1992) 1 WLR 1 applied

Webster v Lampard (1993) 177 CLR 598 applied

Waters v The Commonwealth (1951) 82 CLR 188 noted

Dey v Victorian Railways commissioners (1949) 78 CLR 62 followed

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112CLR 125 followed

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited

Lawrance v Lord Norreys (1890) 15 App Cas 210 applied

Wenlock v Moloney [1965] 1 WLR 1238 applied

Australian Building Industries Pty Ltd v Stramit Corporation Ltd (unreported: judgment delivered 1 December 1997) followed

Myer Stores Ltd v Soo [1991] 2 VR 597 cited

Carnegie v State of Victoria (judgment delivered 14 September 1989) cited

Northern Territory v Mengel (1995) 185 CLR applied

Darling Island Stevedoring & Lighterage Co. Ltd v Long (1957) 97 CLR 36 applied

Pyrenees Shire Council v Day (1997-1998) 192 CLR 330 followed

In the Matter of Citizen Limbo (1989) 92 ALR 81 referred to

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 discussed and distinguished

Hillman v Black (1996) 67 SASR 490 noted

McMullin v ICI Australia (1997) 72 FCR 1 noted

Byrne v Australian Airlines Ltd [1995] 185 CLR 410 noted

TC by his tutor Sabatino v State of New South Wales (unreported: judgment delivered 11 February 1999) discussed

Bienke v Minister for Primary Industries and Energy (1996) 135 ALR 128 applied

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 relied on

Trobridge v Hardy [1955] 94 CLR 147 referred to

Bropho v Western Australia [1990] 171 CLR 1 applied

Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR 273 discussed

Jaensch v Coffey (1984-1985) 155 CLR 549 referred to

Bryan v Maloney [1995] 182 CLR 609 referred to

Stovin v Wise [1996] 3 WLR 388 cited

Re Appeal by Arthur Dingle (1962) 3 FLR 226 at 231 cited

Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 referred to

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

referred to

Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156CLR 41 followed

Breen v Williams (1996) 186 CLR 71 applied

Bennett v Minister of Community Welfare [1992] 176 CLR 408 discussed

Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497 noted

Paramasivam v Flynn (1998) 160 ALR 203 discussed and distinguished

M(K) v M(H) (1992) 96 DLR (4^th) 219 discussed

Northern Land Council v Aboriginal Land Commissioner (1991-1992) 105 ALR 539 applied

Re Toohey (Aboriginal Land Commissioner), Ex Parte Stanton (1983) 44 ALR 94 applied

Jungarrayi v Olney (1991-1992) 105 ALR 527 noted

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 applied

Enever v R (1906) 3 CLR 969 referred to

Field v Nott (1939) 62 CLR 660 applied

Baume v Commonwealth (1906) 4 CLR 97 applied

Ward v Walton (1989) 66 NTR 20 followed

Cartledge v E Jopling & Sons Ltd [1963] AC 758 discussed

Lovett v LeGall (1975) 10 SASR 479 referred to

Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 followed

Wardley Australia v Western Australia (1992) 175 CLR 514 followed

Noble v State of Victoria (judgment delivered 13 April 1999) noted

Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 applied

State of South Australia v Johnson (1982) 42 ALR 161 discussed

Ulowski v Miller [1968] SASR 277 noted

Forbes v Davies (1994) Aust Torts Rep 62 392 (81-279) noted

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 discussed and distinguished

Sydney City Council v Zegarac [1998] 43 NSWLR 195 distinguished

Famel Pty Ltd v Burswood Management Ltd (1990) ATPR 41-004 followed

LORNA CUBILLO v COMMONWEALTH OF AUSTRALIA

NO DG 14 of 1996

 

PETER GUNNER v COMMONWEALTH OF AUSTRALIA

NO DG 21 OF 1996

 

 

 

 

 

 

 

 

 

 

O’LOUGHLIN J

30 APRIL 1999

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
NORTHERN TERRITORY DISTRICT REGISTRY

 

 

BETWEEN:	LORNA CUBILLO DG 14 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

 

 

BETWEEN:	PETER GUNNER DG 21 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	DARWIN

 

THE COURT ORDERS THAT:

 

1.             The applications for orders as contained in pars 2, 3 and 4 of the notice of motion dated 5 June 1998 and filed herein on behalf of the Commonwealth of Australia be dismissed.

 

2.             The applicants in each action (if so advised) be at liberty, within fourteen days of this date, to file and serve a further amended statement of claim and further and better particulars of her and his statement of claim in terms consistent with the reasons of the Court published this day.

 

3.             The question of costs be reserved for the consideration of the trial judge.

4.             Further consideration of these proceedings be reserved and that the directions hearing be adjourned to Wednesday 12 May 1999 at 9.00 am.

5.             Liberty to any party to apply, including liberty to relist on two days notice and liberty to speak to the minutes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Page No

Paragraph No

___________________________________________________________________________

Introduction	1	1 –5
The orders sought	3	6 –12
The applicants’ complaint	6	13
The Power to Grant a Stay	7	14
The history of the litigation	8	15 – 20
Mrs Lorna Cubillo	11	21 –26
Mr Peter Gunner	14	27 – 32
The material before the Court	16	33
The Commonwealth’s response	17	34 – 35
The relevant Legislation	17	36 – 51
Summary Dismissal of Proceedings	24	52 – 59
Guardianship	27	60 – 65
Wrongful Imprisonment	30	66 – 71
Breach of Statutory Duty	34	72 – 98
Breach of Duty of Care	45	99 – 109
Breach of Fiduciary Duty	50	110 – 134
Loss or Damage and Relief sought	62	135 – 145
Vicarious Responsibility	66	146 – 147
Extension of Time	68	148 – 178
Hardship	83	179 – 202
Conclusion	94	203 – 204
Schedule	95

___________________________________________________________________________

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

 

 

BETWEEN:	LORNA CUBILLO DG 14 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

 

 

BETWEEN:	PETER GUNNER DG 21 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

 

JUDGE:	O’LOUGHLIN J
DATE:	30 APRIL 1999
PLACE:	DARWIN

REASONS FOR JUDGMENT

Application to Dismiss Actions Summarily

Introduction

1                     Each of these matters was separately commenced by writ and statement of claim in the High Court of Australia on 30 October 1996; as the Commonwealth was the respondent in both actions, the matters were within the original jurisdiction of that Court: s 75(iii) of The Constitution. However, by consent, further proceedings were remitted by the High Court to the Federal Court of Australia by orders made a month or so later on 26 November pursuant to s 44 of the Judiciary Act 1903 (Cth). It will be necessary, in due course, to investigate in depth the nature of the claims that each applicant has made against the Commonwealth and the nature of the relief that has been sought. However, it is sufficient, at this stage, to introduce the matters by saying that the applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are part Aboriginal persons who have claimed that, as children, they were removed from their families and thereafter detained in institutions against their will until they attained (in the case of Mrs Cubillo) the age of eighteen years and (in the case of Mr Gunner) the age of sixteen years; it has also been alleged that each removal occurred without the consent of the applicant or the applicant’s mother.

2                     In the case of Mrs Cubillo, these events are said to have commenced in about 1945 – fifty four years ago. In Mr Gunner’s case, it is said that he was taken eleven years later, in 1956. Both applicants have claimed that they are members of “the Stolen Generation”, the term that is widely used to refer to the former practice of taking part Aboriginal children from their families and placing them in dedicated missions or institutions. They have each claimed that it was the Commonwealth who was the party responsible for taking them into custody and thereafter detaining them; they have also alleged that their removal and detention was unlawful. All these claims are denied by the Commonwealth.

3                     The applicants have claimed that their removal and detention constituted “wrongful imprisonment and deprivation of liberty”. That claim is the first of four alleged causes of action. The remaining causes of action are said to be breaches of statutory duty, of fiduciary duty and of a general duty of care. General damages allegedly arising from mental and emotional distress and a post traumatic stress syndrome are claimed. There are also claims for aggravated and exemplary damages. In par 44 of Mrs Cubillo’s statement of claim it is pleaded that:

“In the removal and detention of the Applicant the Respondent acted with a conscious and contumelious disregard for the welfare and rights of the Applicant or with a wanton cruel and reckless indifference to her welfare and rights, thereby causing the Applicant substantial distress, humiliation and injury to her feelings, and the Applicant is entitled to aggravated or exemplary damages.”

The same plea appears in par 65 of Mr Gunner’s statement of claim.

4                     The former practice of removing part Aboriginal children from their mothers has attracted Australia-wide publicity, particularly as a result of the tabling in the Commonwealth Parliament on 25 May 1997 of the report of the Human Rights and Equal Opportunity Commission entitled “Bringing Them Home.” It has led to strenuous demands, from a wide cross-section of the community, that the Commonwealth Government issue a public apology to all those who were caught up in this program of institutionalisation. It caused Brennan CJ to say in Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 that the revelation of the ways in which the powers conferred by the legislation were exercised has, in many cases, “profoundly distressed the nation.” The Full Court of the Family Court was more direct in its outright condemnation of the practice; it said:

“The first step in the admissibility of this type of evidence is, we think, now beyond controversy. This is the devastating long term effect on thousands of Aboriginal children arising from their removal from their Aboriginal family and their subsequent upbringing within a white environment.”

(In the Marriage of B and R (1994-1995) 19 Fam LR 594 at 602 per Fogarty, Kay and O’Ryan JJ).

5                     Although it is important to recognise that the subject of the removal and detention of part Aboriginal children has created racial, social and political problems of great complexity, it nevertheless remains the duty of the Court, in the determination of the issues that are presently before the Court, to limit its observations to the legal issues that have been identified during the course of argument. Historians may wish to adjudicate on the social policies of former Governments and it must be left to the political leaders of the day to determine what, if any, action might be taken to arrive at a social or political solution to these problems. It would not be proper for this Court to go beyond the boundaries of the legal issues that are to be determined.

The Orders sought

6                     These reasons are therefore concerned with and limited to certain of the orders that were sought in a notice of motion dated 5 June 1998 that was filed by the respondent, the Commonwealth of Australia. The orders sought in that notice include orders that the statements of claim in each action be struck out and that each action be dismissed. In taking that action, the Commonwealth is relying upon the provisions of O 20 r 2 of the Rules of Court. That rule, so far as it is relevant, provides as follows:

“2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a)       no reasonable cause of action is disclosed;

(b)       the proceeding is frivolous or vexatious; or

(c)       the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.”

7                     Alternative orders that were sought by the Commonwealth in its notice of motion are as follows:

“3. That the Applicants’ application for an extension of time pursuant to section 44 of the Limitation Act 1981 (NT) made in paragraph 47 (Cubillo) and paragraph 68 (Gunner) of the amended statements of claim be heard and determined on a date and at a venue to be fixed by the Court pursuant to section 44(5) of the Limitation Act 1981 (NT) and/or Order 29 Rule 2 of the Federal Court Rules;

4. That the question whether the Applicants’ claim for equitable damages in their amended statements of claim are barred by analogy to the barring by statute of the claims at common law and/or by laches as pleaded by the Respondent in its further amended defence, be heard and determined on a date and at a venue to be fixed by the Court pursuant to Order 29 Rule 2 of the Federal Court Rules;”

8                     The arguments on both sides of the bar table commenced with an acknowledgment that the comments of Donaldson LJ in Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 correctly identified the alternative courses of action that are available to a respondent who is seeking summary dismissal. In that case, the owner of a building sued its builder and architect, claiming damages for breach of contract and for negligence. As to the architect, it was alleged that he had been negligent in the design of the building. The building owner claimed that the building had leaked since its completion and that it continued to do so despite certain remedial work that had been carried out by the builder with the advice of the architect. The architect issued a third party notice against the consulting engineers whom, he claimed, had assisted him in his work on the building. Shortly thereafter the architect died. The engineers issued a summons seeking various orders by way of interlocutory relief. It is only necessary, for the purposes of these proceedings, to refer to the engineers’ claim that the third party proceedings were barred by s 2 of the Limitation Act 1939 (UK). The way in which the engineers went about their interlocutory application was to seek an order striking out the third party notice upon the ground that it disclosed no cause of action since the alleged causes of action in contract and tort were both statute barred at the time of the issue of the third party proceedings. That application was rejected, Donaldson LJ (with whom Sir Sebag Shaw and Stephenson LJ agreed) saying that he considered it “absurd to contend that a writ or third party notice could be struck out as disclosing no cause of action, merely because the defendant may have a defence under the Limitation Acts”: (404). His Lordship went on to add that “it is trite law that the English Limitation Acts bar the remedy and not the right … and they do not even have this effect unless and until pleaded.” (404). The correct approach, according to Donaldson LJ was as follows:

“Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed.”(405)

 

9                     Vincent J in Palmdale Insurance Co (in liquidation) v L Grollo & Co Pty Ltd (1984) VR 408 at 409 expressed reservations about some of the remarks of Stephenson LJ in Ronex Properties. His Lordship had said that there could be cases in which the expiry of the limitation period made it a waste of time and money to let a plaintiff go on with his action; in such cases his Lordship said that “the right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the court on the ground that it is statute-barred.” Vincent J challenged this statement, pointing out that such a course of action should not be permitted prior to the delivery of a defence. But in the present cases, defences have been filed: the “limitation” defences have been raised: and as Vincent J conceded “once the pleadings are before the Court it is, of course, a very different matter” (409). The criticism of Vincent J, assuming it to be justified, does not apply to the Commonwealth’s position in the case of Mrs Cubillo and Mr Gunner.

10                  The Commonwealth has advanced four propositions in these present proceedings. The grounds upon which it seeks orders of dismissal are:

·                 as a matter of law, none of the causes of action can be sustained and so must fail;

·                 if, on the contrary, there is a cause of action which exists, the Commonwealth’s defence, based on statutory limitation periods and laches cannot be answered and so must prevail;

·                 the judicial power to extend the periods of limitation under section 14 of the Limitation Act 1981 (NT) (“the Limitation Act”) cannot be invoked by the applicants on the grounds pleaded; and

·                 if, on the contrary, the grounds pleaded do permit the application of the judicial power to extend the periods of limitation, the circumstances are such that the judicial discretion must be exercised against doing so as the applicants have no reasonable prospect of discharging their onus of satisfying the Court that a fair trial is possible.

11                  However, Mr Meagher QC, counsel for the Commonwealth, made it clear that the Commonwealth’s primary attack was to have both actions dismissed summarily on the ground that each was an abuse of the process of the Court, thereby effectively reducing the last three mentioned grounds to that single attack.

12                  The case that has been presented on behalf of Mrs Cubillo and Mr Gunner in their respective pleadings is to the effect that they have sustainable causes of action and that the claimed prejudice to the Commonwealth cannot be the subject of final determination unless and until such time as their applications for extensions of time have been heard; and, so they submit, unless the Court otherwise orders, those applications will be made at an appropriate stage during the course of the trial after the applicants have placed before the Court such evidence as they deem appropriate.

The applicants’ complaint

13                  The complaint by the applicants that they were removed from their culture, allegedly by the application of the Commonwealth’s welfare policies, lies at the heart of their cases. Taken to their extremity, the applicants have challenged the conduct of the Commonwealth, claiming that it amounted to a misuse or abuse of these policies. But it is the case for the Commonwealth that the policies were grounded upon the belief that in some circumstances it was better to remove a child from its environment than to leave him or her there, notwithstanding the emotional and psychological trauma that may be occasioned to both child and parent; it acknowledged that trauma might have been occasioned, irrespective of whether the removal was, or was not, against the parents’ and child’s will but, so it argued, welfare schemes, giving effect to a scheme that results in separation, were not designed to inflict pain but to protect and assist the child, placing its interests first and foremost, even though there may have been a significant risk of pain and trauma at the parting. On the other hand, and as the Commonwealth recognised, there are contrary views, including those explained by Brennan CJ in Kruger v The Commonwealth (see above):

“In retrospect, many would say that the risk of a child suffering mental harm by being kept away from its mother or family was too great to permit even a well-intentioned policy of separation to be implemented ….”(40)

 

The Power to Grant a Stay

14                  That this Court has power to grant a stay of proceedings on the grounds of abuse of process case cannot be doubted. Authority for that proposition may be found in the joint judgment of Mason CJ Deane and Dawson JJ in Walton v Gardiner [1992-1993] 177 CLR 378. In that case, complaints that were made in 1986 about the conduct of medical practitioners between 1973 and 1977 were stayed because of the prolonged delay after the relevant facts became known. A subsequent Royal Commission reported adversely on the conduct of the practitioners and, as a consequence of that report, in 1991, fresh complaints were laid against them. These complaints were not in the same terms as the earlier complaints but they arose out of the same pattern of professional conduct as had given rise to the earlier complaints; they also raised issues that substantially overlapped those that had arisen under the earlier complaints. The New South Wales Court of Appeal stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process. The High Court, on appeal, by a majority agreed, Mason CJ, Deane and Dawson JJ saying at 392-393:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.”

 

The History of the litigation

15                  Before proceeding to consider the arguments that were advanced with respect to the orders that were sought by the Commonwealth, I first set out the history of the litigation to date. Following upon the filing and serving of the two statements of claim, defences were filed in both actions on 21 February 1997 and amended defences were filed three weeks later on 14 March; replies were filed a week after that. In October 1997, the applicant in each matter filed an amended statement of claim; that caused the Commonwealth to file further amended defences on 7 November 1997. The parties thereafter engaged in some disputes about the sufficiency of the particulars in the pleadings and further and better particulars of the statements of claim and discovery were attended to during February 1998. An important directions hearing took place on Thursday, 12 March 1998; on that day counsel for the Commonwealth advised the Court that his instructions would be to move the Court, in due course, for orders which would include orders for the summary dismissal of both actions. Based on that advice, the following directions were given in the two actions:

“(3) In anticipation that the Commonwealth will file and serve a notice of motion seeking orders which include at least an order for summary dismissal, I list such a notice of motion for hearing in a venue to be advised on Monday 3 August 1998 at 10.15 am and set aside 5 days.

(4) Order (3) is conditional upon the Commonwealth filing and serving its notice of motion and all supporting material by Friday 12 June.

(5)           The applicants if so advised shall file and serve any answering material by Friday 24 July

(6)           Leave to the Commonwealth to file and serve answering material by Friday 31 July.

(7)           Both parties to file written submissions by Friday 31 July.

(8)           Any party may file and serve any other notice of motion with supporting material seeking any other order of an interlocutory nature as it may be so advised, but if any such notice of motion is filed it shall be filed and served, together with all material in support of the orders sought in time sufficient having regard to the provisions of the Rules of Court, to be returnable for argument on Monday 3 August.”

On the same date, 12 March 1998, allowance was made for the fact that the substantive trials might proceed. Each was therefore listed to be called on for hearing on 1 March 1999 and three months were set aside for the hearings.

16                  In due course, the Commonwealth filed its requisite notice of motion (that is, the notice of motion dated 5 June 1998); however, it was accompanied by an affidavit in which an order was sought that the interlocutory hearing that had been listed to commence on Monday 3 August 1998 be vacated. That affidavit was dated 5 June and was sworn by Michael Charles Cullen, a solicitor in the Office of Litigation in the employ of the Australian Government Solicitor. Mr Cullen said that the Commonwealth now sought orders that the evidence of six nominated persons, all of whom were identified as intended witnesses in the Commonwealth’s defence, be taken prior to trial and that the week of 3 August 1998 be utilised for that purpose. In a letter to the Court dated 3 June 1998, a copy of which was forwarded to the solicitors for the applicants and a copy of which was annexed to Mr Cullen’s affidavit, he had said:

“8. Some important witnesses to the respondent’s defence are of a considerable age and frailty. They range in age from 75 to 92. I am advised by counsel that it is incumbent upon the respondent to do what it can to preserve this evidence before pressing its case that the respondent has been prejudiced by reason of the delay in bringing these actions. If the parties were to proceed on 3 August 1998 with the application for summary dismissal and any application for extension of the limitation period then, with possible appeals, it might be 12 months or longer before evidence is taken in the proceedings. In these circumstances it is highly likely that the evidence of these frail witnesses would be lost.

9.              For the reasons above, the respondent wishes to apply to the Court to:

(a)               vacate the timetable set on 12 March 1998 in relation to the hearing in the week commencing 3 August 1998; and

(b)               take the evidence of the more frail of the respondent’s witnesses in the week commencing 3 August 1998.

17                  The solicitors for the applicant did not agree with the Commonwealth’s proposal but the Court acceded to it. The six intended witnesses who had been named in Mr Cullen’s affidavit were Sister Eileen Heath, Mr Harry Kitching, Mrs Dorothy Bott, Mrs Eileen Barrett, Mr Ted Milliken and Mr Harry Giese (who is sometimes referred to as Dr Harry Giese). In the events that transpired, Sister Eileen’s evidence was taken in Perth and Mr Kitching’s evidence was taken in Townsville; it had been intended to take Mrs Bott’s evidence in Townsville also, but her health did not permit it and, sadly, she died not long after on 1 September. No attempt was made by the Commonwealth to obtain the evidence of Mrs Barrett nor of Messrs Milliken and Giese and no explanation was offered for this apparent change in position, although it subsequently transpired (in March 1999) that medical evidence was led by the Commonwealth to the effect that Mr Giese’s state of health was such that it would be inappropriate for him to be called as a witness.

18                  As a result of the decision to utilise the week of 3 August 1998 in taking evidence, the orders of 12 March were vacated and, in lieu, it was ordered that the orders sought by the Commonwealth in its notice of motion would be the subject of argument in March 1999 immediately following the conclusion of the opening addresses of counsel for the applicants and the Commonwealth.

19                  On 1 March 1999, both cases were called on for hearing in Darwin. Mr Rush QC, assisted by Mr Dreyfus and Ms Richards appeared for both applicants; Mr Meagher QC, together with Ms Hollingworth, Dr Perry and Ms Beaton-Wells appeared for the Commonwealth. Mr Rush QC opened his case for the applicants; thereafter Mr Meagher QC opened for the Commonwealth and, upon the conclusion of his opening, moved the Court for the orders in the notice of motion that have earlier been identified in these reasons.

20                  As counsel for the Commonwealth addressed the Court on, what for convenience and brevity, I will call “the strike out application”, it became apparent that aspects of the Commonwealth’s attack included complaints about the quality of the two statements of claim. Some of those complaints, whilst justified, were of minor significance; for example there was material before the Court that suggested that Mrs Cubillo’s date of birth may have been wrongly stated in her statement of claim. Others however, were of critical importance. Perhaps the most notable attack was the submission that the statements of claim did not plead that the Commonwealth – as the named respondent – was directly involved in any act of removal or detention of either applicant. As a result of the submissions that were made on behalf of the Commonwealth, the applicants sought and obtained leave, during the course of the interlocutory hearing, to file further amended statements of claim in each action and further and better particulars of the allegations in each statement of claim. Hereafter, any reference to a “statement of claim” will be a reference to the further amended statement of claim that has been filed by each applicant pursuant to leave granted by the court on 16 March 1999. Because of time constraints, the Commonwealth has not yet filed fresh defences. But as O 13 r 4(1)(a) entitles a respondent to amend a defence where an applicant has amended a statement of claim, the summaries that hereafter appear, with respect to the contents of the two defences that the Commonwealth has filed, are subject to the qualification that there may be changes to one or other or both of them in due course of time; hence, any reference to a defence will be a reference to the last amended pleading which, in each case, was filed on 22 December 1998.

Mrs Lorna Cubillo

21                  I set out, in brief outline, the personal history of Mrs Cubillo and Mr Gunner. In addition to the material that can be extracted from their pleadings, each of them has filed a witness statement and in each case there is a statement of agreed facts. What follows has been extracted from those sources. Where issues of importance have been challenged by the Commonwealth, I will identify them: otherwise I will simply use the narrative, but avoiding, unless essential, the making of any formal findings of fact. As I have come to the conclusion, for the reasons that are hereafter set out, that it would not be appropriate to dismiss these actions summarily, it is important to refrain, if possible, from making findings of fact that are, or that may be, contentious. In Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 631 at 642 Diplock LJ pointed out:

“Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence.”

That passage was quoted with approval in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Bass v Permanent Trustee Company Ltd (unreported: judgment delivered 24 March 1999) where their Honours said:

“Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge’s hand is tied in respect of all matters of fact and law involved in that determination.”

22                  Mrs Cubillo was born at Banka Banka Station, north of Tennant Creek in the Northern Territory of Australia, on or about 8 August 1938. Banka Banka Station is a pastoral property that is located approximately 625 kilometres north of Alice Springs and about 985 kilometres south of Darwin. At the time when Mrs Cubillo was removed, the station was owned and operated by Mr Ted and Mrs Mary Ward, both of whom are now dead. Mrs Cubillo said that her mother was Maude Nambijimpa – in some places spelt Nampijinpa - an Aboriginal woman, and that her father was a white man, a soldier, named Horace George Nelson.

23                  Mrs Cubillo said in her witness statement that her mother died “when I was a very young child”. She added that she was cared for and lived with her mother’s sister, Maisie, and that she believed, until her teenage years, that Maisie was her natural mother. As she refers to Maisie as her mother in her witness statement I will assume, for the purposes of these reasons, that any reference in the pleadings to her being removed and detained without the consent of her mother is a reference to her removal and detention without the consent of her Aunt Maisie who can be regarded as in loco parentis.

24                  In her witness statement Mrs Cubillo claimed that she was forcibly taken from Banka Banka Station by two patrol officers named Bill Harney and Barney McGuiness; subject to what is said below, this would have been in about 1945. Mr Harney died in 1962 and the Commonwealth asserts in its written submissions that Mr McGuiness is also dead. At first, Mrs Cubillo was taken to Seven Mile Creek, but after some months she was, together with some other part Aboriginal children, moved to Six Mile Creek where there was a depot and a large Aboriginal community. During the Second World War, a temporary ration depot for Aboriginal people had been established at Six Mile Creek, some six miles east of the old Tennant Creek Telegraph Station. At the time when Mrs Cubillo was there, the depot was managed by Mr William Arnold Long and his wife, Mrs Dorothy Long; both were missionaries employed by the Aborigines Inland Mission of Australia (“AIMA”). Both are now dead, Mrs Long having died as recently as 8 June 1997. At the end of the War, in about August or September 1945, the ration depot was moved to a new location on the banks of Phillip Creek, adjacent to the Manga-Manda Waterhole. The Phillip Creek settlement was located about forty kilometres north of Tennant Creek, near the Stuart Highway and about six kilometres from Banka Banka Station. Mrs Cubillo, along with the other residents at the depot, was moved to the new location at Phillip Creek. All three centres or settlements must have been reasonably close to Banka Banka Station because Mrs Cubillo refers to her mother (ie Aunt Maisie) and her grandmother visiting her at all three places.

25                  There is an element of confusion in Mrs Cubillo’s statement of claim. In the first place, she has pleaded that she was “removed from her mother and family in approximately 1947 from Phillip Creek …”: see par 1(h)(ii) of her statement of claim. Later however, when giving particulars of the institutions in which she was detained, she pleaded that she was detained at Phillip Creek from “approximately 1945 – 1947”. The confusion is compounded by the contents of her witness statement; in it Mrs Cubillo says that she was approximately five or six years of age when she was taken from Banka Banka Station and she thinks that she was at Phillip Creek for approximately twelve months. On the basis that she was born in 1938, that would mean that she was moved to Seven Mile Creek in 1943 or 1944 and left Phillip Creek – probably, at the latest by late 1946. The probabilities are that she intends to pursue a case that she was removed against her will and the will of her family in about 1945 from Banka Banka Station and that she was thereafter detained at Seven Mile Creek, Six Mile Creek and Phillip Creek between 1945 and 1947 before being removed to the Retta Dixon Home in Darwin in 1947. I will proceed on this premise, although if I am mistaken, it will not affect the ultimate outcome of this interlocutory application. In any event, there came a day when she and about sixteen other children were loaded onto a truck and taken from Phillip Creek to the Retta Dixon Home. According to Mrs Cubillo, a Miss Shankelton, the Superintendent of the Home, was in charge of the childrens’ removal and a Mr Les Penhall, a patrol officer, drove the truck. Mr Penhall is alive and is available to give evidence but Miss Shankelton is dead. Mrs Cubillo said that the removal of the children caused great distress to those who were taken as well as to those who were left behind. Her description of the event is graphic and would be upsetting to many people:

“As the truck left Philip Creek everyone was crying and screaming. I remember mothers beating their heads with sticks and rocks. They were bleeding. They threw dirt over themselves. We were all crying on the truck. I remember that day. Mothers chased the truck from Philip Creek screaming and crying. They disappeared in the dust of the truck.”

Mrs Cubillo has claimed in her witness statement that she stayed in the Retta Dixon Home until 1956 when she attained eighteen years of age.

26                  The Retta Dixon Home was established in 1946 in Darwin by the AIMA; AIMA is and was a Protestant interdenominational faith mission with its headquarters in Sydney. During the time that Mrs Cubillo spent at the Home, it was located at Bagot Road, about eight kilometres from the centre of Darwin, between the Bagot Aboriginal Hospital and the Bagot Aboriginal Reserve. Whilst Mrs Cubillo was at the Home, its residents were predominantly part-Aboriginal children and some unmarried part-Aboriginal women. Miss Shankelton, who died on 15 June 1990, was superintendent of the Retta Dixon Home throughout the period during which Mrs Cubillo resided there.

Mr Peter Gunner

27                  Mr Gunner was born at Utopia Station in the Northern Territory in 1948. A suggested date of his birth is 19 September 1948. That is the date that appears in an application for the registration of his birth made eight years later in 1956. Utopia Station is a pastoral property about 250 kilometres north east of Alice Springs on the Sandover River. Between 1948 and 1956, it was owned and managed by Mr Alexander Henry McLeod; he was assisted by his son whose name also was Alexander McLeod. Both men are now dead although Mrs Dora Hope McLeod, the wife and mother of the men, is still alive. Mr Gunner was taken from the Station and admitted to St Mary’s Hostel on 24 May 1956; he remained there until February 1963. In his witness statement, Mr Gunner said that his mother’s name was Topsy Angala - elsewhere she has been named Topsy Kundrilba. He said that he was not sure of the identity of his father but that he has come to believe that he was a “European” whose name was also Peter Gunner. Mr Gunner believes that his father is alive and living in Tennant Creek, but his mother, like so many important witnesses in this case, is now dead. Despite the uncertainty expressed in Mr Gunner’s statement, there is an entry in the statement of agreed facts to the effect that his biological father “was European or of European descent”. Mr Gunner said of Utopia that it is his “mother’s country”. He added that she “had a say in that country. All I was told is that she was part of the group of traditional owners that spoke for that country under the traditional laws.”

28                  Mr Gunner would have been about seven or eight years of age when he was taken by a patrol officer from Utopia Station. That patrol officer was Mr Harry Kitching. He had been an acting Patrol Officer in the Welfare Branch (formerly the Native Affairs Branch) of the Northern Territory Administration. He held that position from 1953 until his resignation in 1960. It was Mr Kitching who recommended that Mr Gunner be removed from his family at Utopia Station and that he be admitted to St Mary’s Hostel in Alice Springs. It was also Mr Kitching, who in 1956, applied to have Mr Gunner’s birth registered. The case for the Commonwealth is that Mr Gunner’s mother gave her written consent to him going to St Mary’s. A form of consent containing a thumbprint that is said to be his mother’s is among the papers on the Court file.

29                  According to Mr Gunner, he was first taken to “The Bungalow” which he described as a “native settlement” in his witness statement; it was also known as “The Old Telegraph Station”. The Bungalow is situated at Alice Springs, about five or so kilometres to the north of the town. After the war, The Bungalow was a transit depot and a place of residence for Aboriginals who were employed in Alice Springs and their families. It also had a store that served members of the Aboriginal settlements in the area. From The Bungalow, Mr Gunner was taken to St Mary’s.

30                  Mr Gunner has alleged that he was removed from Utopia Station and from his mother and family without their consent; he has also alleged that he was ill-treated whilst he was at St Mary’s. Mr Gunner has also claimed that his removal was effected “by the Director of Native Affairs or other servants or agents of the Respondent”. Those allegations will not be the subject of findings in these reasons. It is sufficient to say at this stage that they are denied by the Commonwealth. I will, however, proceed upon the assumption that both applicants would, at trial, be able to prove, to the satisfaction of the Court, the allegations that they have respectively made: Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 at 216. It is appropriate in such circumstances to make assumptions of fact that are most favourable to the applicants: c.f. the remarks of Widgery J (as he then was) in Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 at 576, a matter that came before the Court in the form of a special case stated. When the Court is asked to strike out a statement of claim on the ground that it discloses no reasonable cause of action, one assumes the truth of the allegations that are contained in the statement of claim; evidence to the contrary is inadmissible. In considering such an application, it is not the Court’s function to examine evidence to see whether the plaintiff can prove his or her case: Lonrho Plc v Fayed (1992) 1WLR 1 at 5; Webster v Lampard (1993) 177 CLR 598 at 604. On the other hand, where the application to strike-out is made under pars (b) or (c) of O 20 r 2(1) on the grounds that the application is frivolous or vexatious or that the proceeding is an abuse of the process of the Court, evidence can be received to show that this is the case.

31                  St Mary’s Hostel is located six kilometres south of Alice Springs near Mt Blatherskite and the Todd River. It was established in 1946 by Sister Eileen Heath on behalf of the Australian Board of Missions, an Anglican organisation. Sister Eileen is an ordained Deaconess of the Anglican Church; she was the founding Superintendent of the Hostel which she described in her affidavit of 25 June 1998 as “a hostel for part Aboriginal children (who were referred to in those days as “half-castes” or “coloureds”)”. Sister Eileen continued as its Superintendent until 1955.

32                  Mr Gunner claimed that in February 1963, when he was about fourteen, he was taken from St Mary’s to Angas Downs. Angas Downs is a cattle station, about 250 kilometres to the south of Alice Springs. At that time it was run by Mr and Mrs Arthur Liddle. Mr Gunner stayed at Angas Downs doing stock work until (according to his statement) 1965 when, as he said “I was told by Mr Liddle that I could leave.” He added that he was taken by Mr Liddle to Alice Springs and left there to fend for himself. In the agreed statement of facts, Mr Liddle, who died on 11 August 1997, was identified as the son of “a European man and Mary Erawaker, a half-caste woman”. No information has been given about Mrs Liddle.

The material before the Court

33                  In moving for the orders sought in its notice of motion, the Commonwealth read the affidavit of Michael Charles Cullen sworn on 5 June 1998, to which reference has already been made, and the two affidavits of Elizabeth Monica Lajos sworn on 15 and 24 February 1999. Ms Lajos is also a solicitor in the Office of Litigation employed by the Australian Government Solicitor. The thrust of Ms Lajos’ two affidavits was to record the names and movements of people who have died and who would otherwise have been (or, at least, might have been) witnesses for the defence. The object was to establish the prejudice that the Commonwealth has suffered because of the delay in the institution of these proceedings. One of the principle arguments for the Commonwealth was that the delays have been so extreme and the number of important witnesses who have died is so large, that it would not now be possible for the Commonwealth to receive a fair trial. In addition, at the request of counsel for the applicants, the Commonwealth also read Mr Kitching’s affidavit dated 26 June 1998. Ultimately, it was agreed by counsel that, for the purposes of these reasons, I could have regard to any material that is presently on the Court file, including the oral testimony of Sister Eileen Heath and Mr Kitching.

The Commonwealth’s response

34                  In response to the respective allegations that each applicant was removed from her and his mothers’ care, custody and control without the consent of the applicant and without the consent of the applicant’s mother, the Commonwealth, in the case of Mrs Cubillo, denied that she was removed in the manner pleaded; in addition to this denial the Commonwealth further alleged that Mrs Cubillo’s mother was dead at the time of the alleged removal. That particular contentious issue would now seem to have disappeared as it has become clear that Mrs Cubillo’s reference to her mother, was, in fact, intended as a reference to her mother’s sister, Maisie. In its defence to Mrs Cubillo’s statement of claim, the Commonwealth also denied that Mrs Cubillo was removed from Phillip Creek by the Director of Native Affairs, as alleged, claiming that she “was removed by Miss Amelia Shankelton for and on behalf of the Aborigines Inland Mission of Australia.” Consistently with this averment, the Commonwealth also pleaded that Mrs Cubillo was not detained in the care, custody or control of the Director of Native Affairs but, rather, “was in the care, custody and control of Miss Amelia Shankelton as superintendent of the Retta Dixon Home … .”

35                  The Commonwealth did not adopt the same position with respect to Mr Gunner. It elected to respond to the comparable allegations by pleading that it did not “know and cannot admit the facts alleged …”. No doubt the acknowledged involvement of Mr Kitching in the removal of Mr Gunner from Utopia Station would partially explain the position taken by the Commonwealth but it is not immediately apparent why it did not raise a like defence that Mr Gunner was not detained by the Director of Native Affairs for the reason that he was in the care, custody and control of the Superintendent for the time being of St Mary’s Hostel.

The relevant Legislation

36                  A convenient starting point for a consideration of the relevant legislation is the Aboriginal Ordinance 1918 (NT): (“the Aboriginal Ordinance” or “the 1918 Ordinance”). It was made by the Governor-General of the Commonwealth on 12 June 1918 and commenced the following day. It repealed the earlier Aboriginal Ordinance of 1911 and it declared that The Northern Territory Aborigines Act 1910 of the State of South Australia had ceased to apply to the Northern Territory. The constitutional validity of the Ordinance has been upheld by the High Court in Kruger v Commonwealth of Australia (see above).

37                  Section 4 of the 1918 Ordinance provided for the appointment by the Administrator of a Chief Protector of Aboriginals; the section provided that the Chief Protector was to be “under the Administrator” and was to be “responsible for the administration and execution of this Ordinance.” In 1939 the title of “Chief Protector of Aboriginals” was changed to “Director of Native Affairs”. Henceforth I will use the word “Director” as a word of convenience when referring to the person who either held the office of the Chief Protector of Aboriginals or the office of Director of Native Affairs. Under the Aboriginal Ordinance, the Administrator was also empowered to appoint Protectors of Aboriginals (in addition to a Chief Protector); the office and title of Protector survived the 1939 amendments to the legislation.

38                  In the 1918 Ordinance, the word “Aboriginal” was defined to mean any person who was:

“(a) an aboriginal native of Australia or of any of the islands adjacent or belonging thereto; or

 

(b) a half-caste who lives with an aboriginal native as wife or husband; or

 

(c)      a half-caste, who, otherwise than as the wife or husband of such an aboriginal native, habitually lives or associates with such aboriginal natives: or

 

(d)      a half-caste male child whose age does not apparently exceed eighteen years; or

 

(e)      a female half-caste not legally married to a person who is substantially of European origin or descent and living with her husband.”

 

39                  In 1953, the definition of “Aboriginal” was materially amended by Ordinance No 9 of 1953. The word thereafter meant:

“(a) a person who is an aboriginal native of Australia or of an island which, being subject to the laws of the Commonwealth, of a State or of the Northern Territory, is adjacent to Australia:

(b) a person who lives after the manner of, follows, adheres to or adopts the customs of persons described in paragraph (a) of this definition and at least one of whose ancestors was a person described in that paragraph;

(c) a person, being under the age of eighteen years, at least one of whose ancestors was a person described in paragraph (a) of this definition, and –

(i) whose care, custody, or control has been undertaken by the Director under section six of this Ordinance before the date when the Aboriginals Ordinance (No 2) 1953 comes into operation; or

(ii) whom the Director has caused to be kept in a reserve or an aboriginal institution under section sixteen of this Ordinance, before the date when the Aboriginals Ordinance (No. 2) 1953 comes into operation;”:

40                  Initially, the expression “half-caste” had been defined in the 1918 Ordinance as meaning:

“… any person who is the offspring of parents, one but not both of whom is an aboriginal and includes any person one of whose parents is half-caste.”

That definition was omitted from the legislation in 1953 as was all earlier reference to the term “half-caste”. Whether a part Aboriginal person would or would not come within the definition of “Aboriginal” after the introduction of 1953 amendment would be a question of fact to be determined in respect of each person by having regard to the parameters that were set out in the new definition; it was, however, clear from the contents of pars (b) and (c) of the 1953 definition of “Aboriginal”, that persons who would have fallen within the earlier definition of “half-caste” could thereafter be included in the extended meaning of the word “Aboriginal”. On the other hand, the 1953 Amendment was most significant in that it removed from the control of the Director those part Aboriginal people (who formerly fell within the definition of “half-caste”) but who did not come within the new definition of the word “Aboriginal”.

41                  There is no need for me, in these interlocutory proceedings, to make formal findings on the subject, but the likelihood is that Mrs Cubillo would have come within the 1953 definition of “Aboriginal”. She was then a person under the age of eighteen years, one of whose ancestors was an Aboriginal native of Australia; she was also a person whose care, custody or control had been undertaken by the Director under s 6 of the Ordinance. It is also likely, but for different reasons, that Mr Gunner would have come within the same definition on the ground that one of his ancestors (his mother) was an Aboriginal native of Australia and that he was a person living “after the manner of” persons who were Aboriginal natives of Australia.

42                  The powers of the Director under the 1918 Ordinance were exceptionally wide. He was the legal guardian of every Aboriginal: s 7. In the pursuit of the “care, custody or control of any aboriginal” he could, by virtue of the provisions of s 6 of the Ordinance, “if, in his opinion it [was] necessary or desirable in the interests of the aboriginal …” enter upon premises without a warrant and take the Aboriginal person into custody – again without a warrant. Any decision of the Director was based upon his opinion; there was no obligation on the part of the Director to refer to any third party; his power was without any specified restraint. That statement is subject to the qualification that when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised: Kruger v Commonwealth of Australia (see above). It is also timely to emphasise that the power to take an Aboriginal person into custody could only be exercised when, in the opinion of the director, it was necessary or desirable in the interests of the Aboriginal person to do so. Part of the attack that the applicants in these proceedings wish to pursue is that it was neither necessary nor desirable in their interests to take them into custody; they wish to prosecute claims that they – and others like them – were taken into custody for improper purposes, the details of which I will mention later in these reasons.

43                  Section 16 of the Ordinance empowered the Director to cause an Aboriginal person to be kept within the boundaries of any reserve or Aboriginal institution and, once there, he or she could be moved by the Director from that place to another like place.

44                  The primary duties of the Director were set out in s 5 of the Ordinance. Subsection (1) of that section empowered the Director:

“(a) to apportion, distribute, and apply, as seems most fit, under the direction of the Administrator, the moneys at his disposal for the purpose of carrying out this Ordinance;

(b) to distribute blankets, clothing, provisions, and other relief or assistance to the aboriginals;

(c) to provide, as far as practicable, for the supply of food, medical attendance, medicines and shelter for the sick, aged and infirm aboriginals;

(d) to provide, when possible, for the custody, maintenance, and education of the children of aboriginals;

(e) to manage and regulate the use of all reserves for aboriginals; and

(f) to exercise a general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud.”

45                  Section 13 of the 1918 Ordinance authorised the Administrator to declare “any mission … home or other institution … to be an aboriginal institution for the maintenance, custody and care of aboriginal and half-caste children …”. The Administrator was also empowered to name a person as “the Superintendent of the aboriginal institution”. Subsection 13(6) then assumed importance for it provided that:

“(6) Every aboriginal and half-caste child for the time being an inmate of any aboriginal institution shall be under the control and supervision of the Superintendent.”

46                  By force of statute, a child was therefore placed under the control and supervision of the Superintendent for the time being of the relevant institution. Both the Retta Dixon Home and St Mary’s Hostel were declared to be Aboriginal institutions and different persons, at different times, were nominated Superintendents. Miss Shankelton was the Superintendent of the Retta Dixon Home whilst Mrs Cubillo was there but it is not clear who was the Superintendent of St Mary’s Hostel when Mr Gunner first went there. After Sister Eileen Heath’s retirement in 1955, there is a reference to Captain Colin Steep, but he has been described as the “Warden” from January 1956 until November 1959 and not as the “Superintendent”.

47                  The Welfare Ordinance 1953 (NT) (“the Welfare Ordinance”) came into operation on 13 May 1957; it repealed the 1918 Ordinance. By the date of its commencement, Mrs Cubillo had left the Retta Dixon Home but Mr Gunner was still an inmate at St Mary’s Hostel. It is therefore necessary to note its material provisions because of their application to him. In the Welfare Ordinance, the Director of Welfare was the comparable officer to the Director of Native Affairs; he also was “under the Administrator” but was appointed by the Minister – not by the Administrator, who had previously held the appointing power. Subject thereto, the Director of Welfare was responsible for the administration of the Ordinance. The Welfare Ordinance introduced the concept of a “ward” who was defined to mean “a person in respect of whom a declaration, made under section fourteen of this Ordinance, is in operation”. The Director of Welfare was, by virtue of s 24 of the Welfare Ordinance, the guardian of all wards. Subsection 14(1.) empowered the Administrator to declare a person to be a ward “if that person, by reason of:

“(a) his manner of living;

(b)           his inability, without assistance, adequately to manage his own affairs;

(c) his standard of social habit and behaviour; and

(d) his personal associations.

stands in need of such special care or assistance as is provided for by this Ordinance”

48                  Subsection 14(1.) is not restricted in its operation to a particular class of persons; the Administrator’s powers to declare a person to be a ward extends to all citizens of the Territory; it was not limited to Aboriginal or part Aboriginal people. The duties of the Director of Welfare in relation to wards are contained in s 8 of the Welfare Ordinance. In many respects they are directed to the issues that were covered by s 5 of the Aboriginal Ordinance, but in more detail. Paragraph (a) of s 8 contains the following provisions:

“8. It is the duty of the Director –

(a)               in relation to the wards, to take steps –

(i)                 to promote their social, economic and political advancement for the purpose of assisting them and their descendants to take their place as members of the community of the Commonwealth;

(ii)               to arrange as far as is practicable for the education of wards, including their vocational training, by collaboration with, and assistance to, the education authority and educational institutions and in other appropriate ways;

(iii)             to promote their physical well being, to inculcate proper habits of hygiene and sanitation and to improve their standards of nutrition and housing;

(iv)             to detect, prevent and cure disease and for that purpose to establish and maintain a liaison with the Commonwealth Department of Health;

(v)               to arrange for their vocational training and to obtain suitable employment for them in industrial and other enterprises and for this purpose to establish and maintain a liaison with appropriate organizations;

(vi)             to provide such relief and assistance as is necessary or appropriate; and

(vii)           to exercise a general supervision and care over matters affecting their welfare;”

49                  There is a power vested in the Director of Welfare in s 17 of the Welfare Ordinance to take a ward into custody and to order that he or she be removed to and kept within a reserve or institution. That power equated to a like power in the former Aboriginal Ordinance, but there were some important differences; for example subs 17(2) provides that the Director of Welfare is not to exercise the power to take a child into custody if by so doing:

“(a) a child under, or appearing to be under, the age of fourteen years would be removed from his parents: or

(b) a parent would be removed from his children.

unless the Administrator has, in writing, authorized the Director to do so.”

Furthermore, the Director of Welfare could not act under s 17 unless the Administrator had first made the necessary declaration that the person was a “ward” and s 32 of the Welfare Ordinance gave the ward a right of appeal against such a declaration.

50                  The word “institution” is defined in the Welfare Ordinance in such a way that it includes an “establishment approved by Administrator … as an institution for the purposes of this Ordinance”: ss 6 and 40. It is common ground that St Mary’s Hostel came within the definition. Further duties of the Director of Welfare include a duty in par 8(c) of the Welfare Ordinance “to supervise and regulate the use and management of institutions …”, thereby appearing to give the Director powers of supervision and regulation over the operations of St Mary’s Hostel.

51                  It has been alleged in subpar 8(e) of each statement of claim that the Director of Native Affairs was an officer of the Commonwealth, that he was employed by and paid by the Commonwealth, that the Director acted for and on behalf of the Commonwealth in relation to the exercise of his powers and the discharge of his duties and functions under the Aboriginal Ordinance and that the Director exercised his power and discharged his duties under the supervision and control of the Commonwealth. In par 27 of Mr Gunner’s statement of claim, the same allegations have been made with respect to the Director of Welfare and with respect to the relationship between the holder of that office and the Commonwealth. During the course of his submissions, counsel for the Commonwealth stated that his client was prepared to concede that the Directors (including the Directors of Welfare) were members of the Commonwealth Public Service and I note in passing that Fullaghar J in Waters v The Commonwealth (1951) 82 CLR 188 at 190 regarded the Director of Native Affairs as an officer of the Commonwealth: however the Commonwealth maintained that the powers that were vested in all Directors were statutory powers to be enforced by the nominated statutory officers: it would not concede that there was, as a consequence, some vesting of power in the Commonwealth.

Summary Dismissal of Proceedings

52                  It is important to note at the outset that the issue before the Court on this application for summary dismissal is not whether Mrs Cubillo and Mr Gunner would probably succeed in their action against the Commonwealth. It is whether the material before the Court demonstrates that these actions should not be permitted to go to trial in the ordinary way because it is apparent that they must fail: Webster v Lampard (see above) at 602 per Mason CJ Deane and Dawson JJ.

53                  A well-known statement of the principles applicable to an order for the summary dismissal of proceedings is that of Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. His Honour said:

“The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

That passage was cited with approval by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130. Earlier in his judgment, the learned Chief Justice had said:

“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.”(at 128-129)

 

At the following page his Honour added:

“…, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possible succeed.”(130)

 

54                  The remarks of Dixon J in Dey v Victorian Railways Commissions were also quoted with approval by Mason CJ, Deane and Dawson JJ in Webster v Lampard (see above). In that case the respondent, a police officer, had participated with the landlord in having the appellants evicted from premises that they were occupying as tenants. In defending the proceedings that had been brought against him, the respondent relied on (inter alia) s 47A of the Limitation Act (WA) which provided that, unless certain conditions as to notice and time are satisfied (and they had not been satisfied):

“No action shall be brought against any person … for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority.”

The respondent also relied on the combined provisions of s 138 of the Police Act 1892 (WA) and par H of the Second Schedule of the Interpretation Act 1918 (WA):

“No action shall lie against any … Officer of Police … on account of any act, matter, or thing done … in carrying the provisions of [the Police] Act into effect against any parties offending or suspected of offending against the same, unless there is direct proof of corruption or malice.”

55                  A master of the Supreme Court ordered that the respondent have leave to enter summary judgment on the ground that, by reason of the statutory defences, the action against him was “hopeless and cannot succeed”. An appeal to the Full Court of the Supreme Court of Western Australia was dismissed. In reversing the decision of the Full Court, the High Court noted that a general onus lay on the respondent police officer to establish facts that would entitle him to the protection afforded by the statutes; as to this, it is significant to note that the appellants in Webster v Lampard, in their reply, had put in issue the availability of those statutory defences. Referring to General Steel Industries Inc v Commissioner for Railways (NSW) (see above) and Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 their Honours said:

“The power to order summary judgment must be exercised with “exceptional caution” and “should never be exercised unless it is clear that there is no real question to be tried.”(at 602)

 

56                  The same strict approach has been taken in the United Kingdom. In Lawrance v Lord Norreys (1890) 15 App Cas 210, Lord Herschell said (at 219) that the inherent jurisdiction to dismiss an action, as an abuse of process of the court, should be “very sparingly exercised, and only in very exceptional cases” and that its exercise would not be justified “merely because the story told in the pleadings was highly improbable.” Danckwerts LJ, in Wenlock v Moloney [1965] 1 WLR 1238 at 1244, said:

“… this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.”

57                  In Lonrho Plc v Fayed (see above) at 5 Millett J said:

“A plaintiff is entitled to pursue a claim in these Courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of process of the court, it must be allowed to proceed to trial.”

58                  A Full Court of this Court has said of that passage from Lonrho Plc v Fayed, after quoting the passages set out above from Lawrance v Lord Norreys and Wenlock v Moloney, that it did not think that it is “… in fact distinguishable from the approach taken in the High Court cases …”: Australian Building Industries Pty Ltd v Stramit Corporation Ltd (unreported: judgment delivered 1 December 1997).

59                  The last case to which reference need be made on this subject is Fancourt v Mercantile Credits Ltd (see above). In that case the plaintiff had successfully applied for summary judgment in an action for monies owing on default under a hire purchase agreement. The defendants contended that summary judgment should not have been entered because there were two factual issues in dispute. In a unanimous judgment, the High Court allowed the appeal in part, granting leave to the defendants to defend a part of the claim. In the course of its reasons, the Court said:

“… the appellants ought, we think, to have been given leave to defend. The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried:… . In our view, it is not possible to say without doubt, on the whole of the material, that there is no question to be tried concerning the payment of the deposits by the appellants. The facts which are established are inconclusive, but the respondent, as well as the appellants, was in a position to establish conclusively the payment of the deposits if that fact could be established and, given the opportunity, it did not do so. That leaves, we think, a question to be tried and, although the appellants have not succeeded in positively establishing a defence, they should not in the circumstances be debarred from defending the action.” (at 99)

 

Guardianship

60                  As the four causes of action that are pleaded in each statement of claim are almost identical, it will be sufficient to refer to Mrs Cubillo’s, adding, where necessary, any qualifications brought about as a result of the Welfare Ordinance having come into operation during Mr Gunner’s residence at St Mary’s Hostel. Before referring to them in detail, it is, however, first necessary to refer to the roles of the Director of Native Affairs and the Director of Welfare as “guardians”.

61                  It has been pleaded in both statements of claim that the Director of Native Affairs became the legal guardian of each applicant by virtue of the provisions of s 7 of the Aboriginal Ordinance. That section, at the time when Mrs Cubillo became a resident of the Retta Dixon Home, provided that the Director “shall be the legal guardian of every aboriginal and of every half-caste child, notwithstanding that the child has a parent or other relative living, until the child attains the age of eighteen years …”. In 1953, s 7 was repealed and replaced with the following provisions:

“The Director is the legal guardian of all aboriginals.”

As I have earlier said, the new definition of “Aboriginal” was such that it is probable that both Mrs Cubillo and Mr Gunner were covered by it. In any event, no contrary proposition has been advanced at this stage in the proceedings. With the introduction of the Welfare Ordinance, the role of guardian was directed to those persons who were declared “wards” under that legislation. It is agreed that Mr Gunner was duly listed as a “ward” on 13 May 1957.

62                  It was then pleaded that the Director of Native Affairs and (in the case of Mr Gunner) the Director of Welfare also, as the guardians of the applicants, had a duty at all times to act in their best interests and a duty to protect them from physical, mental and emotional harm, and that the removal and detention of the applicants constituted, in each case, a breach of those duties. Initially, the statements of claim in each case appeared to present the claimed breaches of duty as guardians as separate causes of action. However, during the course of his submissions, Mr Rush QC made it clear that these alleged breaches were to be treated as part of the allegations that related to the breaches of statutory and fiduciary duty and the breach of the duty of care.

63                  In par 34 of her statement of claim, Mrs Cubillo alleges that her removal and detention was in breach of the duty owed to her by the Director as her guardian. The same allegation appears in par 51 of Mr Gunner’s statement of claim. In particularising this alleged breach, Mrs Cubillo has alleged that it included the Director’s conduct in “delegating the role and duties of guardian over the Applicant to the institutions (sic) in which she was detained and failing to supervise the institutions (sic) properly or at all in the performance of their obligations to the Applicant”. Mr Gunner has made the same allegation. In my assessment of the matter, there is a substantial difference between an act of delegation and any alleged failure to supervise.

64                  To establish the acts delegation, both applicants rely upon s 13 of the Aboriginal Ordinance and Mr Gunner relies on ss 8 and 40 of the Welfare Ordinance. They also relied on Declarations that were made by the Administrator that the Retta Dixon Home and St Mary’s Hostel were each “an Aboriginal institution for the maintenance, custody and care of Aboriginals and half-castes” and documents whereby they were respectively committed by the Director to the custody of those institutions. But the result of the applicants’ statements of claim and their further and better particulars is no more than an attempt to establish an improper delegation by reference to and reliance upon statutory provisions that authorised those declarations. Thus both applicants rely upon s 13 of the Aboriginal Ordinance – a section that permits the Administrator to declare that a home be an aboriginal institution; the section also provides that every child who is an inmate of such an institution is under the control of its Superintendent. The applicants’ complaint is no more than a complaint that the Directors implemented the statutory scheme that was authorised by s 13. Since s 16 empowered a Director to place an Aboriginal person in an Aboriginal institution, it cannot be that there is, by so doing, an improper “delegation” of guardianship. Delegated it may be but improper it was not. It had statutory authority. The same may be said about the provisions of the Welfare Ordinance. By pars 17(1)(c) and (d) the Director was empowered to order that a ward be kept in an institution and by s 20 the ward was bound by law to stay there. Implicitly, once in an institution, the ward was bound to comply with the directions of the Superintendent. Given a specific power to so order, no misconduct of the Director occurred simply because the power was exercised by him. I find, as a matter of law, that the pleadings do not reveal any act of unlawful delegation of the role and duties of guardian by either the Director of Native Affairs or the Director of Welfare. All references to claims of unlawful delegation are to be excised from the pleadings and the particulars. On the other hand, the allegations that the Directors failed to supervise the institutions (in their performance of their obligations to the applicants) raises questions of fact that cannot be resolved at this interlocutory level. They must await the trial of the action for it cannot be said that such allegations are fundamentally incompetent.

65                  The particulars that were supplied in support of the allegation of breaches of duties as guardians were extensive, extending to almost three pages; they are however at the heart of the applicants’ cases. I have therefore set out in full, in the schedule to these reasons, the particulars that are contained in par 34 of Mrs Cubillo’s statement of claim. Identical particulars are to be found in par 51 of Mr Gunner’s statement of claim. As will be seen from a study of those particulars, at the forefront of the applicants’ complaints are the alleged failures to have regard to the personal circumstances of the applicants by depriving them of contact with their families, by adopting a policy of destruction of Aboriginal culture and by the assimilation of the individual into a non-Aboriginal society. Bearing in mind the strictures to which reference has been made when considering strike out applications, I turn now to consider each of the pleaded causes of action.

Wrongful Imprisonment

66                  The first of the causes of action was that the removal and detention of Mrs Cubillo constituted wrongful imprisonment and deprivation of her liberty upon the ground that the removal and detention by the Director was unlawful and beyond the powers conferred by ss 6, 7 and 16 of the Aboriginal Ordinance. In Mr Gunner’s case that same plea was made and to it was added the further plea that from 13 May 1957 until 15 September 1964 (sic: should this be 19 September when he turned sixteen?) his continuing detention by the Director of Welfare was unlawful and beyond the powers conferred by s 17 of the Welfare ordinance. In Myer Stores Ltd v Soo [1991] 2 VR 597 Murphy J at 599 and McDonald J at 625 both referred to an earlier unreported judgment of the Full Court of the Supreme Court of Victoria in Carnegie v State of Victoria (judgment delivered 14 September 1989), adopting that Court’s statement of principle with respect to the action for false imprisonment:

“The gist of the action for false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute.”

67                  Both applicants have alleged in their statements of claim that the discretion that was vested in the Director and (in the case of Mr Gunner) the discretion that was vested in the Director of Welfare was to be used “to undertake the care, custody or control of the Applicant if, in his opinion, it was necessary or desirable in the interests of the Applicant to do so”. It was then alleged in par 31 of Mrs Cubillo’s statement of claim that the removal and ongoing detention was unlawful and beyond power on the grounds that:

“(a) The removal and detention of the Applicant occurred under the dictate of or pursuant to a general policy of removal and detention of half-caste children from their Aboriginal parents and without regard for the individual circumstances of the Applicant.

(b) In applying the general policy of removal and detention of half caste children in respect of the Applicant the Director of Native Affairs failed to exercise his discretion properly or at all, in that he failed to consider and determine whether the removal and detention of the Applicant was necessary or desirable in the interests of the Applicant or of her mother.

(c) In the exercise of his power to remove and detain the Applicant the Director of Native Affairs took into account irrelevant considerations, namely the general policy of removal and detention of half-caste children, irrespective of their particular circumstances.

(d)           In the exercise of his power to remove and detain the Applicant the Director of Native Affairs failed to take into account relevant considerations, namely the interests and particular circumstances of the Applicant.

(e)           The exercise of the power to remove and detain the Applicant by the Director of Native Affairs was so unreasonable that no reasonable person could have so exercised the power.”

 

68                  The same allegation is made by Mr Gunner with respect to the conduct of the Director of Native Affairs to 13 May 1957 and the Director of Welfare thereafter: see pars 41 and 43 of his statement of claim. In so far as the allegations to date do no more than impliedly assert vicarious liability on the part of the Commonwealth for the actions of the Director of Native Affairs and the Director of Welfare, there then follows a specific allegation that the Commonwealth “actively promoted and caused the imprisonment of the Applicant”: see par 31A of Mrs Cubillo’s statement of claim and par 43A of Mr Gunner’s. These allegations were part of the most recent amendments to the statements of claim that were made during the course of the interlocutory hearing. The particulars that supported the allegations of direct involvement on the part of the Commonwealth included the following propositions:

·                 The Director of Native Affairs and the Director of Welfare were appointed to office by the Commonwealth and they were responsible, under the Administrator, for the administration of the relevant legislation;

·                 The Commonwealth required the Directors to act in accordance with a policy of removal and detention of half-caste children without regard to the particular circumstances of each child;

·                 Mr Penhall (in the case of Mrs Cubillo) and Mr Kitching (in the case of Mr Gunner) were Patrol Officers employed by the Commonwealth who removed the applicants and were instrumental in having them placed in the Retta Dixon Home and St Mary’s Hostel respectively;

·                 The Administrator declared each institution to be an Aboriginal institution under s 13 of the Aboriginals Ordinance and issued appropriate licences under that section and, in the case of St Marys, approved it as an institution for the purposes of the Welfare Ordinance;

·                 The Superintendent and the staff of each of those institutions acted on behalf of the Commonwealth and under the supervision of the Directors in detaining the applicants;

·                 In the case of Mr Gunner, the Administrator declared him to be a ward under s 14 of the Welfare Ordinance in accordance with the Commonwealth’s alleged policy of removal and detention of half-caste children “and without regard to the Applicant’s particular circumstances”: (par 43A(f) of the statement of claim).

69                  In its defences, the Commonwealth puts in issue the relationship between the Directors of Native Affairs, the Protectors of Aboriginals and (in the case of Mr Gunner) the Directors of Welfare on the one hand and the Commonwealth on the other. The Commonwealth did not admit initially, that the persons, who, from time to time, held those positions were officers of the Commonwealth; it also did not admit that those persons acted for or on behalf of the Commonwealth in the exercise of any of their powers or in the discharge of any of their duties or functions. Later, the Commonwealth changed its position in the Cubillo matter by changing those “non-admissions” to “denials” but it has not yet made similar changes in the Gunner matter.

70                  In addition to denying the allegations that the respective removals and detentions of Mrs Cubillo and Mr Gunner constituted “wrongful imprisonment and deprivation of liberty”, the Commonwealth raised in each defence the question of (what may be described for convenience) “standards”; it pleaded that any issue touching upon the subject of the removal and detention of part Aboriginal children must be assessed or judged by having regard to the standards, attitudes, opinions and beliefs prevailing at the time of the detention and removal. Thus it was pleaded that if, contrary to the case advanced by the Commonwealth, a power of removal and detention was exercised by or on behalf of the Commonwealth, then any examination into the exercise of such a power for the purpose of determining whether it was reasonable, necessary or desirable or for the purpose of ascertaining whether it took into account irrelevant considerations, or failed to take into account relevant considerations, must be determined by the standards that existed in the 1940’s and the 1950’s and not by the standards that exist today. The subject of contemporary community standards was referred to by Brennan CJ in Kruger v Commonwealth of Australia (see above) at 135 where his Honour said that:

“… it would be erroneous in point of law to hold that a step taken in purported exercise of a discretionary power was taken unreasonably and therefore without authority if the unreasonableness appears only from a change in community standards that has occurred since the step was taken.”

Gummow J in Kruger’s case also commented on this question of “standards”. He said:

“The philosophy given expression in the specific provisions to which I have referred now may appear entirely outmoded and unacceptable. Nevertheless, in its time, the 1918 Ordinance expressed a response to what then for at least 80 years had been perceived, initially by the Imperial Government, as the plight of the indigenous inhabitants of Australia as a consequence of the expansion of European settlement and land occupation.”(232)

 

71                  In dealing with the subject of false imprisonment, there are two issues that must be distinguished. The first of them calls for recognition that the Directors were empowered by statute to take action by way of interfering with an Aboriginal person’s freedom of movement and liberty. That action, so long as it was conducted within the parameters of the legislation, is not challenged by the applicants. The second issue is that which is the subject of challenge: it is to the effect that the Directors in exercising their statutory powers did so for an improper purpose. Whether that assertion is true or not is a question of fact that cannot be resolved in these interlocutory proceedings. Despite the statutory powers that were available to the Directors, it must be conceded that it is arguable that the exercise of those powers for an improper purpose might lead to a cause of action based on false imprisonment. The further question that must be resolved is also a question of fact; if it be proved that the Directors did exceed their statutory powers, did they do so on the instructions of the Commonwealth or at its behest or otherwise in terms that would make the Commonwealth directly or indirectly responsible for their conduct? The existence of these questions and the inability to answer them at this stage constitute grounds for rejecting the Commonwealth’s argument that no cause of action has been established. There remains, of course, the Commonwealth’s claim of prejudice and hardship, but that will be considered later in this reasons.

Breach of Statutory Duty

72                  It has been pleaded in both statements of claim that the Director was under a duty, pursuant to pars 5(1)(d) and (f) of the Aboriginals Ordinance (the contents of which have been set out earlier in these reasons in par 44) to provide for the custody, maintenance and education of each applicant, and to exercise a general supervision and care over all matters affecting their welfare. In the case of Mr Gunner, there is the further plea that the Director of Welfare had a duty to take steps to fulfil the functions and duties that are set out in various sections of the Welfare Ordinance. The provisions in those sections address, in detail, a variety of subjects including the social, economic and political advancement of a ward, along with issues of education, health, hygiene, vocational training, relief and assistance; they also extend to the powers of the Director to take a ward into custody, to move the ward from one place to another, to supervise, regulate and control the management of institutions in which a ward may be residing and to remove a ward from the control or management of a person where the Director has reasonable grounds to believe that the person has ill-treated the ward.

73                  Both applicants have alleged that their removal and detention constituted breaches of those statutory duties. By way of particulars, they both referred to the allegations that are now set out in the schedule to these reasons, adding that the Director:

·                 failed to provide, adequately or at all, for their custody maintenance and education;

·                 failed to exercise, adequately or at all, a general supervision and care over all matters affecting each applicant’s welfare; and

·                 failed to protect, adequately or at all, each applicant “against immorality, injustice, imposition and fraud.”

74                  Mr Gunner’s claim against the Director of Welfare is that his continuing detention from 13 May 1957 to 15 September 1964 was in breach of the various statutory duties that were owed by that Director to Mr Gunner. By way of particularising those breaches, Mr Gunner referred to the allegations that are set out in the schedule to these reasons, adding the sweeping allegation that the Director of Welfare had failed to take steps, adequately or at all, to fulfil the various functions and duties in the Welfare Ordinance to which reference has been made. The Commonwealth has denied in each case that the Director of Native Affairs and (in the case of Mr Gunner) the Director of Welfare were involved in any conduct that would have amounted to a breach by any of those officers of any statutory duty that might have been owed by any one of them to either applicant.

75                  Although there is no cause of action for breach of statutory duty unless the statute confers a right on the injured person to compensation for its breach - Northern Territory v Mengel (1995) 185 CLR - such a right may arise by implication. Thus, it is sufficient to plead a breach of statutory duty as a tort where it can be established, perhaps only by inference, that there is a legislative intent for there to be civil recovery for breach of the statutory duty: Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 53 per Webb J. The Commonwealth has acknowledged in its submissions that such an intent has been pleaded, at least by implication.

76                  It is pleaded by the applicants against the Commonwealth that the Commonwealth, as a consequence of the various matters that are enumerated in the statements of claim (Cubillo par 41; Gunner par 62), owed the applicants a duty of care to take reasonable care and that the removal and detention of the applicants was a breach of that duty of care. That same removal and detention is said to be a breach of the statutory duty that was owed by the Director to the applicant (Cubillo par 36; Gunner par 53). But the Commonwealth, allegedly, is vicariously responsible for those breaches of statutory duty because, in both statements of claim, it has been pleaded that the Director of Native Affairs and also the Director of Welfare “was an officer” of the Commonwealth in relation to “the exercise of his powers and the discharge of his duties and functions” under the legislation.

77                  Breaches of a duty of care and of a statutory duty have been identified by Brennan CJ in Pyrenees Shire Council v Day (1997-1998) 192 CLR 330 at 342 as separate causes of action:

“Breach of statutory duty is a cause of action distinct from the cause of action for common law negligence. The former is the creature of statute; the latter of the common law. However, the same set of circumstances may give rise to either cause of action.”

78                  The Commonwealth has claimed that there are two arguments, each of which calls for summary dismissal of the applicants’ cause of action based on a breach of statutory duty. First, it submits that the provisions of the Aboriginal Ordinance and of the Welfare Ordinance do not contain any provisions for civil recovery for any alleged breach of a statutory duty. Secondly, the Commonwealth claims that, as the Ordinances are “Welfare Statutes”, the authorities deny the existence of any actionable duty of care upon the premise that policy considerations militate against the creation of any such duties.

79                  It is beyond the jurisdiction of this court to challenge the policies that are to be found in the relevant legislation. The limit of the functions of this Court is an examination to ascertain whether there was conduct or omissions that did not come within the purview of the legislation. The doctrine of the separation of powers asserts that the executive, judicial and legislative branches of government must function separately and independently. Within this tri-partite structure, it is the role of the legislature alone to make laws for the peace, order and good government of those governed. Thus what parliament enacts is law, and no court has the power to overrule the wishes of the democratically elected parliament. The traditional position is that the application of the separation of powers doctrine and the theory of responsible government ensure that government is held to account. There was no need to place restraints on the law-making power of parliament because it is already held in check by the electorate.

80                  Brennan J discussed the doctrine of the separation of powers in In the matter of Citizen Limbo (1989) 92 ALR 81 at 82-83 when he denied the applicant’s attempt to obtain declaratory orders that the Commonwealth’s acts and omissions were contrary to the International Human Rights standards that are set out in the United Nations Charter, the Universal Declaration of Human Rights and various other Conventions, one of which was the Genocide Convention. Whilst making it clear that he did not doubt the sincerity of the applicant’s motive, his Honour nevertheless rejected the application on the ground that the applicant was, in reality, seeking a political solution which was beyond the jurisdiction of the Court. His Honour said:

“But when one comes to a court of law it is necessary always to ensure that lofty aspirations are not mistaken for the rules of law which courts are capable and fitted to enforce. It is essential that there be no mistake between the functions that are performed by the respective branches of government. It is essential to understand that courts perform one function and the political branches of government perform another. One can readily understand that there may be disappointment in the performance by one branch or another of government of the functions which are allocated to it under our division of powers. But it would be a mistake for one branch of government to assume the functions of another in the hope that thereby what is perceived to be an injustice can be corrected.” (82-83)

 

81                  Mr Meagher QC submitted that the legislation did not impose, in express terms, any duty on the Director to take reasonable care in the forming of any opinion and that, in the absence of any express requirement that such care be exercised, a duty could be found only by implication. The argument then proceeded that it would be further necessary to imply that the Legislature intended the Director to be liable in civil law should he fail to exercise properly any such implied duty of care. As to this, the Commonwealth claimed that statutory functions are protected by the law from such a duty of care when exercising welfare powers: X (Minors) v Bedfordshire County Council [1995] 2 AC 633. That case was, in fact, a series of cases. The first group of plaintiffs sued a local authority because of its failure to investigate adequately allegations of parental abuse. In another action a child and her mother sued their local authority, alleging a breach of statutory duty and negligence, because officers of the authority had mistakenly identified the mother’s partner as having sexually molested the child. In a group of further cases, plaintiffs claimed damages for breach of statutory duty and for negligence because the local council had failed to attend to their special educational needs. All statements of claim had been struck out as disclosing no reasonable cause of action. In each case the Court of Appeal allowed the appeal in part, holding that the claims in negligence should not have been struck out. In the House of Lords, the existence of a duty of care was excluded in some – but not all of the cases – not because it was not reasonably foreseeable that harm might result if care was not taken, but because policy considerations debarred such a duty. The decision of the House of Lords in X (Minors) v Bedfordshire County Council has been followed by the South Australian Full Court in Hillman v Black (1996) 67 SASR 490 at 495, 508 and 515 and by Wilcox J in this court in McMullin v ICI Australia (1997) 72 FCR 1 at 95; it has also been referred to with apparent approval in the High Court in Byrne v Australian Airlines Ltd [1995] 185 CLR 410 at 458 per McHugh and Gummow JJ; and in Pyrenees Shire Council v Day (see above) at 392 per Gummow J and 412 per Kirby J.

82                  In a recent judgment in the Supreme Court of New South Wales: TC by his tutor Sabatino v State of New South Wales (unreported: judgment delivered 11 February 1999): Studdert J found that the State’s Department of Youth and Community Services owed a duty of care to a young child and that it had breached that duty by its failure to make investigations into the allegations that the child had been the subject of sexual abuse. The facts in that case have some similarity to the facts relative to some of the plaintiffs in X (Minors) v Bedfordshire County Council. However, his Honour, in arriving at a different conclusion, relied upon certain provisions in the New South Wales legislation for which, he said, there was no counterpart in X (Minors) v Bedfordshire County Council (par 164); he also noted the comment of Lord Browne-Wilkinson at 739:

“… the question whether there is such a common law duty and if so, its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.”

83                  For the same reason Studdert J declined to follow Hillman v Black, saying that the South Australian legislation differed in what his Honour perceived to be significant respects.

84                  The principal speech in X (Minors) v Bedfordshire County Council was delivered by Lord Browne-Wilkinson (with whom the remaining Law Lords, other than Lord Nolan who differed only on one point, agreed). His Lordship identified the cases, despite their differences, as all raising the question to what extent authorities that are charged with statutory duties may be held liable in damages to individuals who are injured by the authorities’ failure properly to perform such duties. His Lordship then said:

“The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority’s performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action.”(730)

 

85                  The basic proposition is that, in the ordinary case, a breach of statutory duty does not, by itself, give rise to any private law cause of action, unless, as a matter of statutory construction, it can be shown that the statutory duty was imposed for the protection of a limited class of the public (as would, in my opinion, be the case with respect to the Aboriginal Ordinance and the Welfare Ordinance) and that Parliament intended to confer on members of that class a private right of action for breach of that duty. In the present cases, the legislation does not provide any other means for enforcing the duties that have been imposed on the Directors; it is limited and specific in its application to the Aboriginal community and (as to the Welfare Ordinance) to those who have been declared “wards”. These are pointers that may be used in suggesting that there is an implied private remedy that will be available to the applicants in these cases.

86                  It is clear that a common law duty of care may arise in the performance of statutory functions, but it is also clear that a statutory authority cannot be liable in damages for doing that which Parliament has authorised: X (Minors) v Bedfordshire Council (see above) at 735-736. Therefore, if the impugned conduct of the Commonwealth and the Directors falls within the ambit of any such statutory discretion, it would not be actionable. But in the subject cases, there are express allegations of failures to operate in accordance with the requirements of the legislation. Thus, in the case of Mrs Cubillo there is a plea in par 36 of her statement of claim that her removal and detention amounted (inter alia) to a failure to have regard to, and to act in her best interests by failing to take into account her individual circumstances and by acting in accordance with a policy of removal and detention of half-caste children the purpose of which was to destroy her associations and connections with her Aboriginal family and community and to assimilate her into a non-aboriginal society. Such an accusation, if established, might take the applicants’ claims outside the protection that would otherwise be available: it might amount to conduct that exceeded the ambit of the statutory discretion.

The same allegations are to found in par 53 of Mr Gunner’s statement of claim.

87                  Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council said that:

“It is established that the courts cannot enter upon the assessment of such “policy” matters. The difficulty is to identify in any particular case whether or not the decision in question is a “policy” decision.”(737)

 

Later, on the following page, he said:

“Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.”(738)

 

88                  But as I apprehend the cases that Mrs Cubillo and Mr Gunner wish to prosecute, it is not so much a challenge to a policy – nor is it a challenge to the exercise of a discretion within a policy that was authorised by the legislation; it is a claim that the Commonwealth and the Directors were involved in the implementation of a policy that was not authorised. Whether the applicants can succeed in establishing the existence of any such unauthorised policy and whether any such policy (if it is established) would offend the legislation are both questions of the utmost importance but neither can be answered until all the evidence has been heard. These are not cases where it could be said that the applicants are bound to fail no matter the state of the evidence. Fullaghar J made reference to the powers of the Director of Native Affairs in Waters v The Commonwealth (see above) at 194. His Honour made it clear that the Court could and would intervene if the Director, in the exercise of his powers, made a mistake, or worse, abused his power. Although every presumption will be made in the Director’s favour, mistakes and abuses will neither go undetected nor unredressed. I accept the submissions that were made on behalf of the applicants: the existence of a duty, the exercise of a power in pursuance of that duty and the question whether the exercise was beyond power are all questions that can only be resolved at the trial.

89                  In concluding, with respect to the child abuse cases, that the claims for breach of statutory duty should be struck out, Lord Browne-Wilkinson said:

“The Court of Appeal were unanimous in striking out these claims in both actions. I agree. My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

It is true that the legislation was introduced primarily for the protection of a limited class, namely children at risk, and that until April 1991 the legislation itself contained only limited machinery for enforcing the statutory duties imposed. But in my view those are the only pointers in favour of imputing to Parliament an intention to create a private law cause of action. When one turns to the actual words used in the primary legislation to create the statutory duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”(747)

 

Notwithstanding this statement however, where the decision complained of was so unreasonable that it fell outside the statutory discretion, it could give rise to liability. The difference lies in attempting to attack policy on the one hand, and attacking the implementation or the failure to implement policy on the other. It is not open to the applicants to attack the fundamentals that underlie welfare legislation. The authorities have been assembled in Bienke v Minister for Primary Industries and Energy (1996) 135 ALR 128 at 154, where a Full Court of this Court concluded:

“But in no case in Australia has a minister of state or a public authority been held liable for the negligent proclamation of a policy or the making of an invalid rule or regulation or the issue of a plan for which statute makes provision. Of course, there may be liability if the wrongful exercise of authority was carried out in the knowledge that it was beyond power.”

90                  This Court has no jurisdiction to review the desirability of policies underlying Acts of the Parliament. It is therefore not open to the applicants to ask this Court to review the policies that where enacted in the Ordinances and embodied in the powers conferred by the Ordinances. Those provisions, being valid laws, bind this Court and bind the applicants. But, as I have said, I understand the applicants to be pursuing a different course; they seek to establish that there was an indiscriminate policy of removal and detention that was not authorised by statute. That particular argument, if successful, may, of course, take the cases out of the realm of “breach of statutory duty” altogether, leaving the applicants to rely on their remaining causes of action. But as to this, counsel for the Commonwealth acknowledged, during the course of argument, that the exercise of power under the Aboriginal Ordinance could miscarry if, for example, it was exercised for a malicious purpose or for an objective that was foreign to the mandates of the legislation.

91                  It seems to me that the allegations that have been made by the applicants are sufficient, at this stage, to sustain an argument that their cases rest on a misuse or abuse of statutory power for the implementation of an improper purpose; upon that premise, their pleadings distinguish them from the decisions in X (Minors) v Bedfordshire County Council. The answer to the Commonwealth’s first argument is more difficult. There is, of course, no express provision for civil recovery in either Ordinance. On the other hand, should the applicants be successful in establishing the misuse or abuse of a statutory power for an improper purpose, one would think that such a finding might lead to the further finding that the legislature would intend that the party exercising that power (whether directly or indirectly) should be held liable in civil law.

92                  Whether a private cause of action will be available for a contravention of some statutory requirement was discussed by Kitto J in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. His Honour said:

“But at the outset of every inquiry in this field it is important, in my opinion, to recognize that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then “imputed” to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation:”(405)

 

That passage was quoted with approval by Brennan CJ in Pyrenees Shire Council v Day (see above) at 342.

93                  The fact that there does not appear to be any other remedy for maladministration of the statutory scheme provides, in the words of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council at 751 “… substantial argument for imposing a duty of care”. But, as his Lordship also pointed out, he was of the opinion that there were other statutory procedures that were available to the complainants and, as a consequence, he was not prepared to make findings against the local government body. His Lordship went on to say, at the same page:

“In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”(751)

 

This was the approach that the Commonwealth urged the Court to follow.

94                  Pyrenees Shire Council v Day was a case where the High court, by a majority, found that the failure by local government authority to exercise its statutory powers to require remedial works to be carried out, rendered it liable to pay damages on the ground that it was in breach of a duty of care that it owed to the plaintiff.

95                  Studdert J, in TC by his tutor Sabatino v State of New South Wales at par 113 accepted the decision of the High Court in Pyrenees Shire Council v Day as general authority for the way in which a private right of action may arise from the terms of a statute and the claimant’s membership of a class which the statute is intended to protect.

96                  I have come to the conclusion that the circumstances of both these cases are such that it would be appropriate to make a prima facie finding that Mrs Cubillo and Mr Gunner have private rights of action for breach of statutory duty available to them. I am persuaded to reach that preliminary conclusion as a result of the following factors: on the assumption that the applicants are able to prove an abuse or misuse of power on the part of the Commonwealth (or on the part of its servants or agents for whom it is vicariously responsible) the legislation provides no other remedy; the powers of the Director and (in the case of Mr Gunner) the powers of the Director of Native Affairs are exceptionally wide and far reaching in their affect upon the liberty and freedom of the individual – a feature that, in isolation, calls out for some form of review or supervision. Interference with a person’s liberty has been described by Fullaghar J as “a grave infringement of the most elementary and important of all common law rights”: Trobridge v Hardy [1955] 94 CLR 147 at 152. Next, the class of people who were affected by the legislation were clearly defined. It was limited in its application to Aboriginal persons and, later, with the advent of the Welfare Ordinance, to those persons who had been declared wards. Finally, it could not be said that one can describe, from a reading of either the 1918 Ordinance or the Welfare Ordinance, a clear intention on the part of Parliament to take away a private right to seek redress from the Courts.

97                  The proposition that is advanced on behalf of the applicants is to this effect: extensive powers of control over Aboriginal persons were vested in the authorities by the legislation: in so far as the authorities misused or abused those powers to the detriment of the applicants they should be answerable for a breach of their statutory duties unless the legislation clearly and unambiguously protects them. In that context, the applicants refer to, and call in aid, the remarks of the majority in Bropho v Western Australia [1990] 171 CLR 1 at 17-18:

“One can point to other “rules of construction” which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such “rules” are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v Northern Ireland Road Transport Board [1942] AC 520 at 526-527), which would operate retrospectively (see, e.g., Maxwell v. Murphy (1957) 96 CLR 261 at 267), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see. e.g., Magrath v Goldsbrough, Mort & Co. Ltd. (1932) 47 CLR 121 at 134) or which would take away property without compensation (Attorney-General v. De Keyser’s Royal Hotel [1920] AC 508). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used” (Potter v. Minahan (1908) 7 CLR 277 at 304, and see, also, Ex parte Walsh and Johnson, in re Yates (1925) 37 CLR 36 at 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.”

98                  I therefore conclude that the applicants should be permitted to pursue their claims against the Commonwealth for breach of statutory duty.

Breach of Duty of Care

99                  I turn now to the plea that the Commonwealth owed Mrs Cubillo and Mr Gunner a duty to take reasonable care: see par 41 and 62 of their respective statements of claim. The Commonwealth has denied the existence of any such duty and, consistent with those denials, it has denied in both cases that the removal and detention of the applicants were in breach of any duty of care. The duty of care is said to have arisen in each case as a result of the relationship between each applicant and the Director of Native Affairs; it is also said to have arisen out of the role and functions of the Commonwealth’s servants and agents in the removal and detention of the applicants, together with the obligations that were imposed on the Director and the Administrator under the Aboriginal Ordinance. Finally, it was alleged that the Commonwealth had a duty of care to each applicant as a consequence of:

“The obligation of the Administrator of the Northern Territory to administer the Northern Territory on behalf of the Commonwealth and in accordance with the instructions of the relevant Commonwealth Minister.”

100               The alleged breaches of that duty of care are said to be the removal and detention of Mrs Cubillo and Mr Gunner and the particulars of the breaches are substantially the same as those set out in the schedule to these reasons. I say “substantially” because three additional grounds have been added:

“(k) Failing to have any or any proper regard for prevailing domestic and international principles concerning the advancement and protection of human rights in the discharge of the rights and obligations of the Director of Native Affairs.

(l)                     Failing to provide, adequately or at all, for the custody, maintenance and education of the Applicant.

(m)                 Failing to exercise adequately or at all, a general supervision and care over all matters affecting the Applicant’s welfare and to protect her, adequately or at all, against immorality, injustice, imposition and fraud.”

101               The reference in par (k) to “international principles” calls for special comment. In Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR 273, a foreign national, seeking a permanent entry permit into Australia, was sentenced, in Australia, to a term of imprisonment for drug offences. His application for a permit was refused on the ground that his conviction showed that he did not meet the policy requirement that applicants for residential status be of good character. His wife and children, who were then temporarily residing in Australia, would thereby suffer but it was concluded that these compassionate circumstances were not compelling enough to justify waiver of the character requirement. The Minister ordered deportation and an application to the Federal Court for review was dismissed. In allowing the appeal, the High Court held that the ratification by the Australian Government of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that the Minister would act in conformity with it and treat the best interests of the applicant’s children as a primary consideration. Even so, the Court was at pains to stress that the Convention was not part of Australia’s domestic law: at 287 per Mason CJ and Deane J; at 298 per Toohey J; at 304 per Gaudron J; and at 315 per McHugh J (who was otherwise in dissent).

102               It was submitted on behalf of the applicants that they have not pleaded that the Commonwealth has breached international treaties nor, so it is claimed, do they contend that international treaties give rise to individual rights. Be that as it may, the applicants have referred to “international principles concerning the advancement and protection of human rights” as part of their allegation that the “removal and detention of the applicants was in breach of the duty of care” that the Commonwealth owed to each applicant. If, as the applicants concede, the provisions of the treaties do not form part of Australia’s domestic law, I fail to see how any failure on the part of the Commonwealth to adhere to some of those provisions (should that be the case) can be used by the applicants in their claim against the Commonwealth. In my opinion, the reference in the particulars of claim to “international principles” concerning the advancement and protection of human rights is not appropriate; these are not cases where the concept of “legitimate expectation” arises. References to “international principles” should therefore be struck out.

103               Could it be said, on the information that is presently before the Court, that in the 1940’s and the 1950’s it could have been reasonably foreseen that the acts of removal and detention of young part Aboriginal children would be likely to cause injury to them? In my opinion, that question cannot be answered because the relevant evidentiary material has not yet been adduced. If it be that the Commonwealth owed the applicants a duty of care, the time to determine whether there was a breach of that duty and whether damages flowed from that breach is after both parties have presented their evidence. That, also, will be the time to consider whether such a duty of care (if one exists) has been “precluded or modified by some applicable overriding requirement or limitation”: Jaensch v Coffey (1984-1985) 155 CLR 549 at 583 per Deane J. In many cases, reasonable foreseeability of an injury will suffice to establish the requisite relationship of proximity between the parties: Bryan v Maloney [1995] 182 CLR 609 at 617-618 per Mason CJ Deane and Gaudron JJ. Earlier at 617 their Honours had said:

“The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage.”

With respect, it seems to me that this passage also emphasises the need for evidence to be taken before a final decision can be made on the issue of the alleged breach of duty.

104               I return, at this stage, to the issue of “policy”. As Kirby J explained in Pyrenees Shire Council v Day:

“Courts have drawn a distinction between “policy” decisions, which they will leave to the public authority itself, and “operational” decisions which they will have competence to evaluate.”(425)

 

The utility of that distinction has recently been questioned in the House of Lords in Stovin v Wise [1996] 3 WLR 388 and by some of the Justices in the High Court in Pyrenees Shire Council v Day (eg Toohey J at 358 and Gummow J at 393-394).

105               In the circumstances of these cases I do not consider that it is necessary to explore the likely application of this doctrine. The probabilities are that there will be no attempt to attack any express or implied policy in the legislation; the applicants seem content to acknowledge that which they would describe as the policy of the legislation, and from that base, they would thereafter argue that the Commonwealth misused or abused its powers by implementing a different policy. Such an argument will, I apprehend, involve an analysis of the facts first, to determine what (if anything) it was that the Commonwealth, through its servants and agents, did, next to ascertain whether what was done formed part of some policy and finally to investigate whether such a policy (if it existed) was, as the applicants would argue, outside the parameters of the legislation.

106               However, if, for example, the legislative policy of the Welfare Ordinance was, as has been suggested, one of “progressive assimilation” it would, arguably, fall outside the scope of the Court’s power to review it; (see the remarks of Bridge J in Re Appeal by Arthur Dingle (1962) 3 FLR 226 at 231). I have expressed myself tentatively on this subject because it would be, from a perusal of the pleadings, that the applicants will (contrary to what I have earlier said) either be challenging the existence of any such policy or arguing, perhaps, that the Court does retain some residual powers of review. At the least, the applicants will be advancing a case that the Commonwealth, through the Director of Welfare, acted in accordance with an impermissible policy (by whatever name it may be called) of removal and detention of part Aboriginal children for the purpose of destroying their Aboriginal associations and so that they would be assimilated into non-Aboriginal society: see par 51(b) of Mr Gunner’s statement of claim.

107               Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 was a case where the High Court referred to the basis upon which a relevant authority would owe a duty of care to a member of the public. The plaintiff had injured himself when he dived into the water at a reserve that was managed by the defendant; he hit a submerged rock. There were no signs warning of the presence of such rocks. The majority decision was to the effect that the authority was under a general duty to take reasonable care to avoid foreseeable risks of injury to visitors who were lawfully using the reserve and that the risk of such an injury was reasonably foreseeable; the failure to post warnings was a breach of the defendant’s duty of care. As I understand the applicants’ submissions, they would seek to rely on the decision in Nagle’s case as authority for the proposition that their removals and detentions, being beyond power, the Director was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury; and injury occasioned as a result of the removals and detentions was foreseeable. The decision in Nagle was followed, but with a different result in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. In that case the plaintiff, a young woman, fell from the top of a cliff in a nature reserve. It was held, by a majority, that the defendant was under a duty to persons entering the reserve to take reasonable care to avoid reasonably foreseeable risks of injury to visitors; it was also held that the risk of someone falling off the cliff was reasonably foreseeable, but that the defendant was not in breach of its duty of care by failing to erect a fence at the edge of the cliff (456 per Toohey and Gummow JJ).

108               It seems to me that the applicants’ pleadings allow them to operate within the framework of the remarks of Brennan CJ in Romeo v Conservation Commission (see above) at 443 that are set out later in this paragraph. That statement can be tested by referring to the powers of the Director as listed in s 6 of the 1918 Ordinance; he could “if, in his opinion it [was] necessary or desirable in the interests of the aboriginal …” enter upon premises without a warrant and take the Aboriginal person into custody. Although I have described that power as exceptionally wide [subpar 42] it was not an absolute power. It was qualified in the sense that the Director was required to form an opinion that his proposed conduct was “necessary or desirable in the interests of the aboriginal person”. If the Director did not apply his mind to that issue or if he used his power for another purpose (if not being elsewhere authorised by the legislation) the Director would be acting outside his powers. It is against that background that the remarks of Brennan CJ in Romeo v Conservation Commission become highly relevant. What the learned Chief Justice said was this:

“In Pyrenees Shire Council v Day (1998) 192 CLR 330 at 346, I expressed my opinion that no duty to exercise a statutory power and to exercise it with care can be imposed by the common law on the repository of the power when the statute, operating in the particular circumstances, leaves the repository with a discretion whether to exercise it or not. If it were otherwise, the common law would impose on the repository a duty to exercise the power when the legislature had intended the repository to decide for itself whether and in what manner the power should be exercised. But a public authority charged with the management and control of premises on which the public may enter as a right is given those powers for the purpose, inter alia, of protecting the person of those who enter. As that is a purpose for which the powers of management and control are conferred, the repository is obliged to exercise them and to exercise them reasonably to fulfil that purpose unless there be some contrary statutory direction. But the manner of their exercise is for the repository to determine, provided that determination is not unreasonable in the Wednesbury sense. That being the extent of the statutory duty, the duty owed by the repository to an entrant must be correspondingly defined. One reason why a court cannot hold a public authority liable in negligence for failing to take some action when the taking of the action is a matter of “policy” is that policy connotes a discretion to be exercised by the public authority not by the court. Some public law justification must exist before a court can intervene to compel the exercise of a discretionary statutory power by a repository which has failed or refused to exercise the power.”

That passage, in its application to facts of these cases, calls for two comments. The first is that it is authority for the proposition that the Director, as the repository of a discretionary power, and charged with the care and welfare of part Aboriginal children, had an obligation to exercise those powers reasonably for the stated purpose. The second observation, is however, of greater relevance; it is to this effect: although the common law will not impose on the repository a duty to exercise a power when the legislature had intended the repository to decide for himself whether and in what manner the power should be exercised, the common law will not afford the same protection to a repository who uses his powers for an improper or unauthorised purpose.

109               It was submitted on behalf of the applicants that the pleadings in the current cases show that the requisite criteria for imposing a common law duty of care exist; they stress the alleged unlawful actions of the Commonwealth in the course of the removals and the ongoing detentions of Mrs Cubillo and Mr Gunner. At this stage of the proceedings, it is sufficient to agree that these allegations have been made and that it is open to the applicants on the pleadings to lead evidence in support of these allegations. I decline therefore to strike out the cause of action based on the alleged breach of a duty of care.

Breach of Fiduciary Duty

110               The recognition by the Courts of the existence of a fiduciary relationship and the duties arising as a consequence of that relationship has developed with the objective of ensuring that holders of positions of trust or power do not abuse their authority to the detriment of those who are vulnerable and dependent upon them; the law has developed case by case, largely by analogy. As Gibbs CJ explained in Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156 CLR 41 at 68:

“The authorities contain much guidance as to the duties of one who is in a fiduciary relationship with another, but provide no comprehensive statement of the criteria by reference to which the existence of a fiduciary relationship may be established. The archetype of a fiduciary is of course the trustee, but it is recognized by the decisions of the courts that there are other classes of persons who normally stand in a fiduciary relationship to one another – e.g., partners, principal and agent, director and company, master and servant, solicitor and client, tenant-for-life and remainderman. There is no reason to suppose that these categories are closed. However, the difficulty is to suggest a test by which it may be determined whether a relationship, not within one of the accepted categories, is a fiduciary one.”

111               Mason J, in the same case, in addressing the same subject, also acknowledged that the categories of fiduciary relationship are not closed. His Honour referred to them as “relationships of trust and confidence or confidential relations”. He then described the critical feature of those relationships in this manner:

“… the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.”(96-97)

 

112               Much the same was said by Gaudron and McHugh JJ in Breen v Williams (1996) 186 CLR 71. Referring to the remarks of Gibbs CJ and Mason J in Hospital Products Ltd v United States Surgical Corporation, their Honours said:

“Australian Courts have consciously refrained from attempting to provide a general test for determining when persons or classes of persons stand in a fiduciary relationship with one another. This is because … the term “fiduciary relationship” defies definition.” (106)

 

113               The following plea appears in par 36A of Mrs Cubillo’s statement of claim:

“At and following the removal and detention of the applicant the [Commonwealth] was in a fiduciary relationship with the Applicant and owed fiduciary duties to her.”

The same allegation appears in par 57A of Mr Gunner’s statement of claim.

114               There then follows, in successive paragraphs, the details of:

·                 the facts and circumstances that were said to give rise to that fiduciary relationship;

·                 the fiduciary duties that the Commonwealth allegedly owed to each applicant; and

·                 the alleged breaches of those fiduciary duties.

115               The fiduciary relationship between the Commonwealth and each applicant was said to arise because of the role and functions of the Commonwealth’s servants and agents in the removal and detention of the applicants and because of the Commonwealth’s powers over, and its assumption of responsibility for, Aboriginal people in the Northern Territory. It was also said to arise because of the powers, obligations and discretions of the Directors and the vulnerability of each applicant to the exercise of those powers and discretions. Next, it was said to arise because of the powers, obligations and discretions of the Administrator and the obligation on the Administrator to administer the Northern Territory on behalf of the Commonwealth and in accordance with the instructions of the relevant Commonwealth minister.

116               The fiduciary duties that were said to exist and that were said to be owed by the Commonwealth to each applicant, as set out below, have been extracted from par 36c of Mrs Cubillo’s statement of claim. The same duties are to be found listed in par 57c of Mr Gunner’s statement of claim:

“(a) to have regard to and act in the best interests of the Applicant;

 

(b) to avoid any conflict, or any possibility of conflict, between its interests and the interests of the Applicant;

 

(c) to avoid any conflict, or any possibility of conflict, between its interests and its duty to the Applicant;

 

(d) not to make improper use of its position to gain an advantage indirectly or directly for any party other than the Applicant, or to cause detriment to the Applicant;

 

(e) to appoint proper institutions or persons to fulfil the role and duties of guardian of the Applicant and other abovementioned duties contained in the Aboriginals Ordinance while the Applicant was detained in an institution;

 

(f) to properly supervise any institution or person into whose care the Applicant was placed in the performance of the various duties owed to the Applicant;

 

(g) to advise the Applicant of her rights in respect of leaving the care, custody and control of the Respondent and returning to her mother; and

 

(h) to advise the Applicant that she should obtain independent advice and to provide such resources as would enable her to obtain that advice.”

 

117               The alleged breaches by the Commonwealth of its fiduciary duties are set out in detail in each statement of claim. Basically, they are said to be the same as the alleged breaches of the Director’s duties as a guardian that are itemised in the schedule to these reasons. There was, however, an addition of some importance; the second alleged breach of the duties of a guardian (as set out in the schedule) identified a two-fold purpose for the policy of removal and detention. It was said to be:

“Acting in accordance with a policy of removal and detention of half-caste children the purpose of which was to destroy the associations and connections of the Applicant with her Aboriginal mother, family and culture and to assimilate the Applicant into non-Aboriginal society without regard to her particular circumstances.”

However, in alleging a breach of fiduciary duty, Mrs Cubillo, in par 36D of her statement of claim, claimed that the Commonwealth was motivated in the implementation of this policy by two additional purposes; they were said to be:

·                 “to provide domestic and manual labour for the European community of the Northern Territory”; and

·                 “ to breed out half-caste Aboriginal people and protect the primacy of the Anglo-Saxon community”

Those last mentioned allegations also appear in par 57D of Mr Gunner’s statement of claim.

118               The pleadings then switch from the Commonwealth to the Director of Native Affairs. In par 37 of Mrs Cubillo’s statement of claim the following allegation appears:

“Further or in the alternative, at and following the removal and detention of the applicant the Director of Native Affairs was in a fiduciary relationship with the applicant and owed fiduciary duties to her.”

119               A similar plea is to be found in Mr Gunner’s statement of claim save that his is expanded to include an allegation that, with effect from 13 May 1957, there was also a fiduciary relationship between him and the Director of Welfare. As with the claims against the Commonwealth, there then followed details of:

·                 the facts and circumstances that were said to give rise to that fiduciary relationship;

·                 the fiduciary duties that the Director allegedly owed to each applicant; and

·                 the alleged breaches of those fiduciary duties.

120               Although there are differences in the detail of the allegations against the Directors when they are compared with the allegations that have been mounted against the Commonwealth, the allegations against the Directors do not raise new matters and hence, it is not necessary to refer to them in detail save, perhaps, to mention (but only for the sake of completeness) that the particulars that are set out in the schedule to these reasons are included in the allegations against the Directors.

121               The Commonwealth is then brought back into the picture because there is a specific plea in each statement of claim that it “knowingly participated in the breaches of fiduciary duty” that were allegedly committed by the Directors: see par 40A of Mrs Cubillo’s and par 61A of Mr Gunner’s statement of claim. That allegation against the Commonwealth was supported by the assertions that are much the same as those that have been pleaded in par 31A of Mrs Cubillo’s statement of claim and par 43A of Mr Gunner’s statement of claim: (they being the paragraphs in which it is alleged that the Commonwealth actively promoted and caused the imprisonment of the applicants): see par 68 hereof. There is, however, an important additional assertion. It is alleged that the Commonwealth knew of the fiduciary relationships between the Directors and each applicant and that it knew of the several breaches of the fiduciary duties of the Directors.

122               The Commonwealth has denied, in each case, that any fiduciary relationship arose between the applicants on the one hand and the Director of Native Affairs and (in the case of Mr Gunner) the Director of Welfare on the other hand. Furthermore if, contrary to that denial, there was such a relationship, then the Commonwealth has denied that the Director of Native Affairs and (in the case of Mr Gunner) the Director of Welfare were involved in any conduct that could have amounted to a breach of any fiduciary duty. The Commonwealth has not yet pleaded to the allegations that fiduciary relationships existed between it and the applicants as those allegations appeared for the first time during the course of the argument on the strike out application. It is, however, clear that the existence of any such relationship will be denied.

123               The Commonwealth has argued that the conferral of statutory powers on the Director of Native Affairs and (in the case of Mr Gunner) the Director of Welfare did not create fiduciary relationships. The mere existence of a statutory power, even though its exercise will affect a person whose rights are vulnerable to its exercise does not, of itself, give rise to a fiduciary duty. For the relationship to exist more must be established. The Commonwealth argued that an essential element was missing: that is, the element that has been described as the undertaking or the agreement to act for, or on behalf of, or in the interests of, another person in a legal or practical sense, rendering the other person vulnerable to abuse by the fiduciary: Hospital Products Ltd v United States Surgical Corporation (see above) at 96-7 per Mason J.

124               The High Court, in Northern Land Council v Commonwealth of Australia (see above), was of the view that the question whether there was a fiduciary relationship was a question of fact to be resolved at trial. In that case the matter came before the High Court as a case stated. It dealt with the provisions of an agreement between the Northern Land Council and the Commonwealth and with legislative provisions concerning the mining for uranium on land in Kakadu – “the Ranger land.” The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking certain declaratory relief and injunctions against a mining company; it also pleaded a case for relief in relation to the agreement which was expressed to be based on various grounds, including breach of fiduciary duty. The defendants moved to strike out the statement of claim. One of the questions that was asked in the case stated was whether the facts alleged in the statement of claim disclosed a cause of action for breach of fiduciary duty against the Commonwealth. Those facts were said by the High Court, in a unanimous decision, to be those pleaded in par 35 of the statement of claim. As set out in the judgment they were:

“(a) the fact that the Ranger land became Aboriginal land within the meaning of the Land Rights Act which Act created rights for the benefit of the group;

(b) the fact that the Land Rights Act recognised and gave effect to the antecedent native title referred to in para 4A hereof;

(c) further, and alternatively, the fact that the Land Rights Act recognised and gave effect to the rights referred to in para 4B hereof.

(d) further, and alternatively, the fact that the radical antecedent native title and the rights were enforceable by the group against all other persons subject to the overriding rights of the Crown;

…

(f)                     prior to 11 August 1978 and during the negotiations for the s 44 agreement the Commonwealth recognised the antecedent native title of the group. Further, the Commonwealth had resolved and acted upon the assumption that a grant of the Ranger land would be made to a land trust pursuant to the Land Rights Act.”(213)

Succeeding subparagraphs in the statement of claim then set out particular circumstances that were designed to attract the existence of a fiduciary relationship. The Court rejected an argument that the Commonwealth came under a fiduciary duty to the plaintiff or to Aboriginal people interested in the Ranger land as a result of the Commonwealth being a party to negotiations for an agreement under the terms of the relevant legislation; there was nothing to suggest that the Commonwealth had any duty to the Land Council. On the other hand, the Court commented that, given different circumstances:

“… the Commonwealth may come under a fiduciary duty in its negotiations with the Land Council. That depends on issues of fact and, perhaps, on the nature of the interests of the Aboriginals (whether statutory or common law interests) in the land the subject of the negotiations.” (215)

 

Referring to Hospital Products v United States Surgical Corporation (see above) at 68 per Gibbs CJ and 96 per Mason J where their Honours had pointed out that the categories of fiduciary relationship were not closed, the Court concluded:

“Likewise, the question whether other allegations in the amended statement of claim might give rise to a fiduciary relationship should not be determined in the abstract but should be determined in the light of the facts found at the trial.”(215)

 

125               In support of their contention that their circumstances gave rise to a fiduciary relationship such that the Commonwealth owed them fiduciary duties the applicants relied on what they described as “the vast power of the Commonwealth in relation to its control over Aboriginal people”. Counsel for the applicants submitted that it was a power that could be exercised “unilaterally” and that it was a power that “brought about a total inequality of position” in relation to the Commonwealth and each of the applicants; he submitted that the scope of the Commonwealth’s duty was to be moulded to the nature of the relationship which conjured up terms such as “vulnerability”, “oppression”, “guardianship” and expectations of people in relation to what they could expect of someone who purportedly acts in their interests.

126               In making these submissions, counsel for the applicants relied on the decision of the High Court in Bennett v Minister of Community Welfare [1992] 176 CLR 408. In that case the plaintiff, a sixteen year old boy, was a ward of the State; he was injured at the institution where he was in care while using a saw without a proper guard; he lost four fingers. It was common ground that he would have been entitled to recover damages from the defendant and that he would have sought to recover them if he had known of such entitlement. It was also accepted that the defendant’s Director of Community Welfare (“the Director”) was under a duty to obtain legal advice for the ward about his right to recover damages. The Director failed to discharge that duty, and in due course, the plaintiff’s action became statute-barred. Before the expiration of the limitation period, the wardship ceased and plaintiff obtained legal advice. However, he was incorrectly advised that he had no cause of action against the defendant save for a claim for worker’s compensation. After his action became statute-barred, he received correct advice and sued the defendant for general damages in relation to the loss suffered as a consequence of the Director’s failure to obtain legal advice. The trial judge held that the plaintiff was not entitled to recover damages and an appeal to the Full Court of the Supreme Court of Western Australia was dismissed. The plaintiff was, however, successful in the High Court. His amended statement of claim had asserted a breach of duty by the Director to secure independent legal advice for him with respect to the injury. It was not disputed that there was such a duty on the part of the Director as claimed in the proceedings, that there was a breach of that duty and that, if liability arose from that breach, it attached to the Minister vicariously. However, at all stages, liability was denied on the basis that the plaintiff obtained legal advice with respect to his injury, which advice was to the effect that he had no right of action at common law. That advice was wrong, and, according to the argument that was advanced on behalf of the Minister, it was the faulty advice that was the cause of him losing his right to bring proceedings for damages for personal injury. In their joint judgment, Mason CJ, Deane and Toohey JJ described the duty that was owed to the plaintiff as a fiduciary duty. They said:

“It is not now in question that there was a duty of care owed by the Director of Community Welfare (“the Director”) to the appellant and that there was a breach of that duty (for which, it is agreed, the Minister was vicariously liable). In the courts below, the duty of care appears to have been equated to, even derived from, a fiduciary duty owed by the Director to the appellant arising out of his statutory office as guardian. That fiduciary duty was a positive duty to obtain independent legal advice with respect to the possible existence of a cause of action on the part of the appellant arising out of the circumstances in which he sustained an amputation of four fingers of his left hand.”(411)

 

Gaudron J did not address the subject of fiduciary duty but the remaining member of the Court, McHugh J, said:

“Nevertheless, it is not open to doubt that, in addition to the fiduciary duty which the Director owed to the appellant, the circumstances of the guardianship and the injury to the appellant while under the care and control of the Director gave rise to a common law duty on the part of the latter to take reasonable care to ensure that the appellant did not suffer economic loss by not being advised of his rights in respect of that injury.” (427)

 

127               Mr Meagher QC, sought to distinguish Bennett v Minister of Community Welfare from the known facts of the present case, arguing that the Director in Bennett’s case had competing interests: namely, protection of his office on the one hand and protection of the ward on the other. But, as it seems to me, if there was such a conflict, it could be said that the same conflict might be found to exist in the present cases.

128               In Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497, Kirby J followed the decision of the High Court in Bennett v Minister for Community Welfare and the remarks of Dawson J in Hospital Products Ltd v United States Surgical Corporation at 141 in holding that the relationship of guardian and ward “is one of the established fiduciary categories” (511).

129               Bennett v Minister of Community Welfare (see above) was a case where the statutory regime of guardianship was accepted as sufficient to create a fiduciary duty; a Full Court of this Court in Paramasivam v Flynn (1998) 160 ALR 203 also acknowledged that a relationship of guardian and ward may – not will – “give rise to duties typically characterised as fiduciary” (218).

130               It was submitted that I should regard myself as bound to hold, as a result of the decision of the Full Court in Paramasivam v Flynn, that on the pleadings, neither Mrs Cubillo nor Mr Gunner has a cause of action against the Commonwealth for breach of fiduciary duty. In that case, where there were allegations of sexual assault by a guardian on his ward. The Court acknowledged that the conduct that had been alleged against the respondent could be described in terms of “abuse of a position of trust or confidence” but, so it held, such a description does not thereby mean that the applicant should succeed in an action for breach of fiduciary duty, even though the allegations are made good. The conclusion that was reached by the Full Court can be appreciated from the following passages from its joint judgment:

“In Anglo-Australian Law, the interests which the equitable doctrines invoked by the appellant, and related doctrines, have hitherto protected are economic interests. If property is transferred or a transaction entered into as a result of undue influence, then the transaction may be set aside or, no doubt, the appellant may be compensated for loss resulting from the transaction; similarly if a transaction is induced by unconscionable conduct; so, in cases usually classified as involving fiduciary obligations not to allow interest to conflict with duty, the interests protected have been economic. If a fiduciary, within the scope of the fiduciary obligation, makes an unauthorised profit or takes for himself or herself an unauthorised commercial advantage, then the person to whom the duty is owned has a remedy.”(p 218)

Later the Court said:

“Here, the conduct complained of is within the purview of the law of tort, which has worked out and elaborated principles according to which various kinds of loss and damage, resulting from intentional or negligent wrongful conduct, is to be compensated. That is not a field on which there is any obvious need for equity to enter and there is no obvious advantage to be gained from equity’s entry upon it. And such an extension would, in our view, involve a leap not easily to be justified in terms of conventional legal reasoning.”(p 219)

 

In coming to its decision, the Full Court referred to, but declined to follow, the decision of the Supreme Court of Canada in M(K) v M(H) (1992) 96 DLR (4^th) 219, a case where claims had been made in tort and for breach of a fiduciary duty arising out of an alleged incestuous relationship between a parent and child. The judgment of the Supreme Court was given by La Forest J who said at 327:

“Indeed, the essence of the parental obligation in the present case is simply to refrain from inflicting personal injuries upon one’s child.”

The Full Court in Paramasivam v Flynn reacted to that statement by saying:

“With great respect, there can be no doubt that that is a fundamental aspect of a parent’s obligation; and it is one which should be, and is, appropriately protected by law. It does not follow, however, that “fiduciary” is the right label for it, still less that equitable intervention is necessary, appropriate or justified by any principled development of equity’s doctrines.”(220)

 

131               The Court of Appeal of the Supreme Court of New South Wales (by a majority) in Williams v Minister, Aboriginal Land Rights Act, 1983 (see above) elected to follow the Canadian decision in M(K) v M(H). The plaintiff in Williams v Minister was a woman of Aboriginal descent who had been placed at birth in a home for Aboriginal children by the Aboriginal Welfare Board. Later she was moved by the Board to a home for “white” children because she was fair skinned. She was almost fifty years of age before she instituted proceedings alleging that she suffered a personality disorder as a result of her childhood experiences. She applied, unsuccessfully, for an extension of time within which to proceed against the relevant authorities for negligence, breach of duty and wrongful detention. In addition to those causes of action, there was also a claim for equitable compensation for an alleged breach of fiduciary duty. On appeal, the Court of Appeal of the Supreme Court of New South Wales (Kirby P and Priestley JA; Powell JA dissenting) ordered that the limitation period for the causes of action that were set out in the plaintiff’s statement of claim be extended. As to the alleged beach of fiduciary duty, Kirby P said that the Authorities were, “arguably, obliged to Ms Williams to act in her interest and in a way that truly provided, in a manner apt for a fiduciary, for her “custody, maintenance and education”.” (p 511). Priestly JA, in a short concurring judgment said:

“… it seems to me desirable that Ms Williams have the opportunity of putting all relevant evidence before the court at a trial, rather than that the matters of significance which the case raises should be dealt with on the incomplete state of the evidence at present before the Court.”(516)

 

132               In declining to follow the approach of the New South Wales Court of Appeal in Williams v Minister, the Full Court in Paramasivam v Flynn pointed out that the High Court, in Breen v Williams (see above), had made it clear that it did not agree with aspects of the Canadian Court’s approach: see, for example, Brennan CJ at 83:

“But in this respect the notion of fiduciary duty in Canada does not accord with the notion in the United Kingdom.”

Breen v Williams was a case where a patient sued her doctor unsuccessfully for the right to inspect her medical records. Dawson and Toohey JJ, in their joint judgment at 95, referred to a tendency:

“not found in this country, but to be seen in the United States and to a lesser extent Canada, to view a fiduciary relationship as imposing obligations which go beyond the exaction of loyalty and as displacing the role hitherto played by the law of contract and tort by becoming an independent source of positive obligations and creating new forms of civil wrong.”

Gaudron and McHugh JJ, in criticising the Canadian authorities, commented that “the Canadian law on fiduciary duties is very different from the law of this country …” (112). They also said:

“One significant difference is the tendency of Canadian courts to apply fiduciary principles in an expansive manner so as to supplement tort law and provide a basis for the creation of new forms of civil wrongs.”

Gummow J, the remaining member of the Court, was of the view that “there is no substance in these submissions” (p 132) that incidents of the relationship between a medical practitioner and patient may attract equitable intervention.

133               It might be said that the passages that I have cited from the Full Court’s judgment in Paramasivam v Flynn have a direct application to the facts in each of these cases. Both Mrs Cubillo and Mr Gunner have pleaded that a relationship of guardian and ward existed between the Directors and each of them, that it was a fiduciary relationship and that the personal injuries and losses that they have each suffered resulted from breaches of the duties that existed as a consequence of these fiduciary relationships. Neither of them has pursued a claim that is based on some loss of or damage to an economic interest. They, like the appellant in Paramasivam v Flynn, have limited their claims to losses and damages flowing from the psychiatric injuries and cultural losses that they have allegedly suffered. When one studies the substance of their respective claims it becomes apparent, despite some divergences in detail, that the same factual background that has been used to ground their actions in tort, has been used as the base upon which they have sought to establish the existence of a fiduciary relationship and a breach of the duties that are said to emanate from such a relationship.

134               But the warning in Northern Land Council v Commonwealth of Australia not to determine the nature of any relationship in the abstract, the acceptance in Bennett v Minister of Community Welfare that the relationship of guardian and ward created a fiduciary relationship and the acknowledgment in Paramasivam v Flynn that the relationship of guardian and ward may give rise to a fiduciary relationship are sufficient to persuade me that it would be premature to hold, at this stage, that the applicants have failed to make out a case of a fiduciary relationship on the pleadings. It may transpire, when all the evidence has been taken, that no such relationship has been proved: That is a matter, however, that should await the trial of the action.

Loss or Damage and Relief Sought

135               Both Mrs Cubillo and Mr Gunner have claimed that they have suffered injury, loss and damage. They have each alleged that they suffer a post traumatic stress syndrome, anxiety, mental and emotional distress, psychological trauma and injury. In addition they have claimed, as particulars of their respective injuries:

·                 isolation from and loss of the cultural, social and spiritual life associated with their respective mothers; and, paradoxically,

·                 denial of equal opportunity to cultural, social, educational and employment prospects in non-Aboriginal Australia.

136               As has been earlier stated, they have each labelled the conduct of the Commonwealth as a “contumelious disregard” for or a “wanton, cruel and reckless indifference” to their welfare and their rights. They are both seeking declaratory relief together with damages (including aggravated or exemplary damages), equitable compensation, interest and costs.

137               In effect, the applicants have claimed that they have each suffered three different losses:

·                 Those resulting from emotional distress, including psychological injuries;

·                 cultural losses; and

·                 losses of the entitlements and other advantages associated with being declared a traditional owner of lands under the Aboriginal Land Rights (Northern Territory) Act 1976: (“the Land Rights Act”).

138               Subject to one qualification, the Commonwealth, in both defences, has entered simple denials that the applicants are entitled to any relief. The qualification relates to Mrs Cubillo’s claim that she has lost “the entitlements and other advantages associated with being declared a traditional owner of her ancestral lands pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)”. A similar claim was made by Mr Gunner in his statement of claim and in his case the Commonwealth entered a simple denial. However, in Mrs Cubillo’s case, the Commonwealth not only denied her allegation, but also pleaded that Mrs Cubillo:

“… not being a person entitled by her birth and ancestry to be declared a traditional owner, did not seek to be and was not recognised as a member of the clans whose native title was recognised and upheld by the Land Commissioner.”

139               In pursuing their losses of entitlements, similar particulars of claim were given by each applicant, varying only in the identification of their lands and the relevant Land Commissioners’ Reports. Both applicants have alleged that their losses were in consequence of their being placed in an institution. The Commonwealth has advanced four reasons in support of its argument that these claims for relief should be struck out:

·                 the claims relate to losses arising under the Land Rights Act, an Act of Parliament that created rights, but only many years after the applicants had been institutionalised;

·                 there is a lack of causation;

·                 even if causation could be established, the claims were too remote as such losses were not reasonably foreseeable;

·                 the Reports of the Land Commissioner that covered Banka Banka Station and Utopia Station identified the local descent group of traditional Aboriginal owners as being patrician – membership was dependent on the applicants’ fathers being members of the group. As each applicants’ father was a non-Aboriginal person, neither applicant had any entitlement under the Land Rights Act. [This allegation is challenged by the applicants both as a matter of fact and as a matter of law].

140               The first ground of objection is self-evidently correct as a statement of fact and, prima facie, it could lead to findings that are adverse to the applicants with respect to issues of causation and remoteness. However, in view of my subsequent finding, I do not think that it would be appropriate to deal with those matters at this stage.

141               The fourth argument raises different problems. In their particulars of claim both Mrs Cubillo and Mr Gunner make the following comment, “… it is not pleaded that the applicant is listed or declared under the 1976 Act to be a traditional owner of any “ancestral lands”.” That statement is to be contrasted with the contents of each statement of claim where it is pleaded that “the applicant has lost the entitlements and other advantages associated with being declared a traditional owner of her ancestral lands …”.

142               If these two statements are capable of reconciliation, it is not immediately apparent. Perhaps it was intended to mean that the applicants have been deprived of benefits that they would have otherwise enjoyed through their mothers even though they (the applicants) were not traditional owners. But that is speculation. Subject to certain qualifications of general application, s 71 of the Land Rights Act enables any Aboriginal person to enter upon Aboriginal land and to use and occupy it in accordance with Aboriginal tradition. “Aboriginal Land” means land that is held by a Land Trust for an estate in fee simple or land that is the subject of a deed of grant held in escrow by a Land Council: subs 3(1) of the Land Rights Act. Given this apparent general right of entry, use and occupation, there is a need for Mrs Cubillo and Mr Gunner to explain in their pleadings how it is that they are suffering (or have suffered) in a relevant way, loss or damage as a result of the acts or omissions of the Commonwealth.

143               The Commonwealth also submitted that the claim for alleged losses of entitlements and benefits under the Land Rights Act should be struck out on the ground that no compensable loss can flow to either applicant. In support of that proposition, the Commonwealth relied on the decision of a Full Court of this Court in Northern Land Council v Aboriginal Land Commissioner (1991-1992) 105 ALR 539 in which the Court explained that with respect to a land claim, persons not claiming biological affiliation may, nevertheless, be adopted into and become part of a local descent group. Wilson J had earlier expressed the same view in Re Toohey (Aboriginal Land Commissioner); Ex Parte Stanton (1983) 44 ALR 94 at 99-100; see also Brennan J at 104 where his Honour said that Aboriginal tradition provides for use of the land by both traditional Aboriginal owners and other Aboriginals. I am not sure where such a proposition leads. If it means that Mrs Cubillo or Mr Gunner may yet become members of a relevant local descent group, surely that would be a matter to be established by evidence; it would not support an argument, at this stage, that they have not suffered any compensable loss. The ranks of the traditional owners of any land will change from time to time: Jungarrayi v Olney (1991-1992) 105 ALR 527 at 534. It may be that Mrs Cubillo or Mr Gunner or both of them may, in due course of time, join the ranks of traditional owners. But that assertion, if made, should be tested by evidence in the trial. Mrs Cubillo and Mr Gunner have the task of satisfying the Court that it will not come to fruition and that it is the fault of the Commonwealth that they are thereby deprived of the benefits that will or might flow from traditional ownership.

144               As part of their submissions, the applicants identified two cases where, so it was claimed, material benefits are available for traditional owners; but neither of those factors have been pleaded. First, it was submitted that a Land Council could not take any action, in connection with land held by a Land Trust, unless the traditional owners understood the nature and purpose of a proposed action and, as a group, consent to it [s 23(3)(a)]. In contrast, other Aboriginal groups that may be affected by the action need only be consulted so that they have an adequate opportunity to express their views to the Land Council [s 23(3)(b)]. This distinction between the requirement to obtain the consent of the traditional owners and the more limited obligation to consult with other affected Aboriginal groups, appears throughout the Act: see ss 11A(3), 19(5), 42(6), 43(2), 46(4), and 68(2). Thus, it is claimed that the Act confers on traditional owners, as a group, the right to give and withhold consent to dealings with their land. Secondly, when a Land Council receives a payment in respect of Aboriginal land, it is obliged under subs 35(4) of the Act to pay that amount to or for the benefit of the traditional owners of that land. Consequently, it is submitted that recognition as a traditional owner can result in direct economic benefits that are not available to other members of the Aboriginal community. Both of these assertions appear to be relevant but, as I have said, neither has been pleaded. I am therefore of the opinion that the present state of the pleadings fails to disclose a compensable claim so far as it is alleged that there have been losses of entitlements under the Land Rights Act.

145               The claim for compensation arising under or as a consequence of the Land Rights Act should be struck out but with liberty to the applicants to replead their claims with further and better particularity.

Vicarious Responsibility

146               It was submitted on behalf of the Commonwealth that it could not be held vicariously liable for the misconduct of the Directors. Each Director, so it was claimed, was appointed as a statutory or public officer to exercise statutory powers vested in him, and him alone. The legislation comprising the Ordinances was enacted pursuant to a plenary power, independent of the Commonwealth and not in any legal sense as the delegate or agent of the Commonwealth. The submission continued that in exercising the statutory powers and discharging the statutory duties thus conferred, the Directors were charged to act independently of the Commonwealth (and independently of any other Government, such as the Northern Territory Government). Thus it was claimed that the applicants’ allegations that the directors exercised their statutory powers and discharged their statutory duties for and on behalf of the Commonwealth are misconceived in law on the ground that the Directors acted as principals, pursuant to their statutory offices on which such powers and duties had been imposed. For these reasons, it was submitted that, even if actionable misconduct is established, it is only the Directors (or their estates) that could be answerable, not the Commonwealth. It may well be that, at the end of the day, such an argument will be successful; after all, there is no provision in either Ordinance that requires a Director to comply with directions or policies of the Commonwealth in the exercise of their powers and the performance of their duties. At this stage however, the applicants are submitting, as an issue of fact, a contrary proposition; they are claiming that the Directors exercised their powers and performed their functions in their capacities as officers of and servants or agents of the Commonwealth and pursuant to a policy that was dictated by the Commonwealth and implemented by the Directors.

147               Vicarious liability would not attach to the Commonwealth where a Director, as a tortfeasor, was acting in the exercise of an independent statutory duty. This rule was described by Gibbs CJ as “firmly established as part of the common law of Australia”: Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 637. Where the rule applies, the Director, as a tortfeasor, is liable alone for the wrongful acts committed in the exercise of the duty, even if he or she is an officer or employee of the Commonwealth. The officer performing the duty is treated as the principle in respect of acts in the exercise of the duty. His or her authority is original, not delegated: Enever v R (1906) 3 CLR 969. But the issue is not whether the relevant party is an employee of the Commonwealth: the identification of the relationship of the Commonwealth to the party in respect of the impugned act is the critical matter. Dixon J held in Field v Nott (1939) 62 CLR at 675:

“When a public officer, although a servant of the Crown, is executing an independent duty which the law casts upon him, the Crown is not liable for the wrongful acts he may commit in the course of his execution. As the law charges him with a discretion and responsibility which rests upon him in virtue of his office of some designation under the law, he alone is liable for any breach of duty.”

 

But, as I have said, the applicants have alleged that the Directors, in so acting in their removal and detention, were acting in the course of their employment by the Commonwealth. The difference was succinctly explained by O’Connor J in Baume v Commonwealth (1906) 4 CLR 97 at 123:

“If the Statute imposes a duty upon the Commonwealth, the Commonwealth is liable for the breach of that duty by its servants. But it does not follow that because the Statute imposes a duty upon the servants of the Commonwealth the Commonwealth will be liable for the breach of the servant’s duty. The obligation may be placed upon the servant in such a way that a duty on the Commonwealth may be necessarily implied. But the form of the Statute and the words of the legislature must be considered in every case.”

Until the basic issue of fact has been resolved it would not be appropriate to accede to the Commonwealth’s submission (assuming that fault is established) that it is not liable for any misuse or abuse of power or breach of duty by the Directors.

Counsel for the applicants also submitted that, as a matter of law, the Director of Native Affairs and the Director of Welfare were not independent in the exercise of their powers and duties. Counsel pointed to the word “under”, saying that it must have been inserted in the legislation for a reason; the submission was to the effect that the phrase “under the Administrator” meant that the Director in the performance of his statutory functions was subject to the control and direction of the Administrator. The next link in the chain was said to be found in s 3A of the Northern Territory (Administration) Act 1910 (Cth) which states (inter alia) that the Administrator is to exercise and perform his powers and functions in accordance with such instructions as are given to him by the Minister and in s 4 of the Northern Territory Government Ordinance 1911 (NT) which states that the Administrator is charged with the duty of administering the Government of the Northern Territory on behalf of the Commonwealth. This argument, which in my opinion, should be allowed to proceed, therefore links the Commonwealth, through the responsible Minister down to the Director via the Administrator and permits of an argument that the Director was thereby subject to the control of the Commonwealth in the performance of his statutory duties.

Extension of Time

148               Both applicants have sought extensions of time for the institution and prosecution of their respective proceedings pursuant to section 44 of the Limitation Act. Prior to its commencement on 21 September 1987, the relevant legislation had been the South Australian Limitation of Suits and Actions Act 1866-67 and that Act would have been in force at the time of the removal of Mrs Cubillo and Mr Gunner and throughout their detention. However, upon the introduction of the Limitation Act, it was provided that the South Australian Act “shall cease to apply as laws of the Territory”: subs 3(2). It was also provided that the new Act was to apply to the exclusion of any South Australian Act containing provisions “relating to the limitation of actions.”

149               The provisions of s 44, so far as they are relevant to these proceedings, are as follows:

“44. EXTENSION OF PERIODS

(1)          Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for –

(a)          instituting an action;

(b)          doing an act, or taking a step in an action; or

(c)           doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.

(2)          A court may exercise the powers conferred by this section in respect of an action that it –

(a)          has jurisdiction to entertain; or

(b)          would, if the action were not out of time, have jurisdiction to entertain

(3)          This section does not –

(a)          apply to criminal proceedings; or

(b)          empower a court to extend a limitation period prescribed by this Act unless it is satisfied that –

(i) facts material to the plaintiff’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or

(ii) the plaintiff’s failure to institute the action within the limitation period resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances,

and that in all the circumstances of the case, it is just to grant the extension of time.

(4)          …

(5)          …

(6)          …

150               As no particulars were given in support of the applications in any of the editions of the statements of claim, the Commonwealth sought further and better particulars of the material facts upon which the applicants would be relying in seeking extensions. The particulars that were sought with respect to Mrs Cubillo’s application for an extension of time were as follows (the request in respect of Mr Gunner’s application was in identical terms):

“State each and every material fact relied upon by the applicant in seeking an extension of time under section 44 of the Limitation Act 1981 (NT) and in particular:

(a)                   identify each and every personal injury to the applicant which she will rely upon, and state when, where and how each of the injuries occurred;

(b)                   identify each and every fact material to the applicant’s case which was not ascertained by her until 12 months prior to the commencement of these proceedings, and state when, where and how the applicant ascertained each of the facts;

(c)                    give:

(i) the usual particulars of any representations;

(ii) full particulars of any conduct,

of the respondent, or a person whom the applicant reasonably believed to be acting on behalf of the respondent, which it is alleged that the applicant relied upon in failing to institute legal proceedings against the respondent within the limitation period.”

151               Both applicants duly responded; their responses varied marginally because of some personal circumstances but were otherwise drafted in consistent terms. I will first summarise the information that is common to both answers and thereafter mention the material that is personal to one or other of them. In answer to the request to identify each and every personal injury and to state when, where and how each occurred, both applicants referred back to the contents of their statements of claim in which they each had alleged a post traumatic stress syndrome together with other mental and emotional distress, the loss of cultural, social and spiritual life associated with their mothers and the losses of entitlements and advantages under the Land Rights Act.

152               They each alleged that those injuries and losses had occurred as a consequence of their removal and detention “by the servants/agents” of the Commonwealth. Both Mrs Cubillo and Mr Gunner then pleaded that they “were unable to say” when they suffered “psychiatric injury”, adding that “this is a matter for expert evidence at trial.” Mrs Cubillo has also pleaded that she suffered physical injury during her detention in Retta Dixon Home. Allegations of physical abuse, whilst he was residing at St Mary’s Hostel, have also been made by Mr Gunner.

153               The following statement appears in Mrs Cubillo’s answers to the Commonwealth’s requests for further and better particulars:

“The Applicant first became aware that she had a potential claim against the Respondent for compensation for personal injuries suffered as a consequence of her removal from her mother and subsequent detention when informed by her solicitors in or about September 1996.”

The same statement appears in Mr Gunner’s answers, save that he says that he was first informed by his counsel in July 1996. Mrs Cubillo claimed that she first became aware that she suffered from post traumatic stress syndrome and psychiatric injury “consequent upon her removal and detention when informed in Darwin after medical consultation in or about October 1996”. Mr Gunner made the same assertion save that he said he was informed in or about November 1996. These answers were given in response to the Commonwealth’s request that each applicant identify “every fact material to the applicant’s case which was not ascertained by her until twelve months prior to the commencement of these proceedings …”. In their amended further and better particulars both applicants relied on advices given to them by their legal representatives subsequent to the institution of their proceedings: c.f. Ward v Walton (1989) 66 NTR 20. It will be sufficient to reproduce Mrs Cubillo’s allegations:

“The Applicant met with her solicitors and counsel in January 1997. The Applicant was again informed she had suffered psychiatric injury as a consequence of her removal and detention. The role of the Commonwealth Government was explained to her as was the nature of the claim against the Commonwealth. The Applicant was informed that research was being conducted and that as a consequence of research completed to that date evidence existing implicating the Respondent in her removal and detention and that her removal and detention was part of a general policy of removal and detention by the Respondent that was unlawful and in breach of statutory obligations.

At the meeting with her solicitors in December 1997 when the causes of action were explained to her, she was informed in detail, and shown the evidence establishing the Commonwealth’s involvement in her removal and detention, that the removal and detention was a part of a general policy of removal and detention by the Respondent that was unlawful, unreasonable and in breach of statutory obligations. The Applicant was also informed there was evidence that demonstrated the Respondent had failed in its duty to properly supervise her welfare and care during her period of detention.”

 

154               The amendments to the Applicants’ further particulars show that, in addition to allegedly learning of the diagnoses of psychiatric injuries, they also claim to rely on the fact that they did not fully appreciate the role of the Commonwealth in their removal and detention and did not learn of its general policy of removal and detention or of evidence that it had failed to properly supervise their welfare, until December 1997. These factors, so it is said, are material facts relevant to all causes of action pleaded by the applicants.

155               Whether the decision in Ward v Walton (see above) should be followed was raised during the course of argument. Mr Meagher QC argued that this Court is not bound to, and should not, follow the decision of the majority in that case. His claim is simply stated; it is based on the language of subpar 44(3)(b)(i) of the Limitation Act:

“Facts material to the plaintiff’s case were not ascertained by him until some time within 12 months before the expiration of the limitation period” [that does not apply here] or occurring after the expiration of that period” [and it is said that this is the case] “and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff.”(emphasis added)

 

156               The argument for the Commonwealth is that the presence of the word “after” shows, in a temporal sense, that the ascertainment of the material facts must precede the institution of the proceedings. There are, in my opinion, two answers to this argument. The first is that there is yet to be a finding as to the date when the causes of action in tort and for breach of statutory duty arose. The second is the beneficial interpretation given to the provision by Asche CJ (with whom Gallop J agreed). The Chief Justice said, in effect, that the requirement of s 44(3)(b)(i) that an action be instituted within 12 months after the ascertainment of material facts by an applicant is properly met by showing that the action was instituted at a time no later than 12 months after the ascertainment of those facts by the applicant. If, therefore, facts were ascertained after the institution or proceedings, the action must, of necessity, have been instituted within 12 months after the ascertainment. In the interests of maintaining precedent, I feel that I should follow the decision of the Full Court; it could not be said that it is plainly wrong even though it might be said that it strains the language of the subparagraph.

157               Mrs Cubillo and Mr Gunner answered, separately and differently, the request for particulars about the representations or conduct of the Commonwealth upon which they allegedly relied, “in failing to institute legal proceedings against the respondent within the limitation period”. Mrs Cubillo claimed that she was aware that the Commonwealth by its servants and agents (who were not identified) had represented that the “removal of Northern Territory Aboriginal Children from their mothers was considered for welfare reasons, for the good of such children”. She also claimed that she was informed by persons, whom she described as “missionaries”, that her detention at the Retta Dixon Home “was the will of God”. Mrs Cubillo then alleged that each of those claims (which she classified as “representations”) had the effect of inducing in her “a belief that her removal and detention was legitimate and proper conduct by the Respondent.”

158               Mr Gunner answered the request for particulars about the alleged representations and conduct by claiming that during his period of detention some servants or agents of the Commonwealth (who were not identified) told him that his taking from his mother and his institutionalisation “was in his best interests”. He, like Mrs Cubillo, then claimed that this representation had the effect of inducing in him “a belief that his removal and detention was legitimate and proper conduct by the Respondent.”

159               In its separate defences (par 47 in the Cubillo proceedings and par 68 in the Gunner proceedings) the Commonwealth has pleaded that, in so far as the applicants seek damages at common law or for breach of statutory duty, their claims are statute barred. The Commonwealth has relied primarily on ss 9, 12 and 36 of the Limitation Act; it also argues that no extension of time pursuant to s 44 of the Limitation Act should be granted to either applicant. In addition to accusing each applicant of unreasonable delay, the Commonwealth has also pleaded that it has been prejudiced by that delay. The following plea is taken from par 47 of the defence in the Cubillo action; an identical plea appears in par 68 of the defence in the Gunner action:

“(B) The respondent is now prejudiced by the substantial delay, resulting amongst other things in:

(I)                 the difficulty in identifying and locating witnesses, the availability of such witnesses and the ability of such witnesses now to recall:

(x)               the circumstances in which (if it be the case) the applicant was taken into care, custody or control:

(y)                the circumstances relating to the applicant whilst she was in care, custody or control (if it be the case that she was in care, custody or control);

(II)              the lack of records relating to the matters referred to in sub-paragraphs (I)(x) and (y) above, either because no written records were made, or such records as were made have been lost or destroyed;

(III)            the difficulty of proving standards, attitudes, opinions and beliefs prevailing at the time during which (if it be the case) the applicant was taken and retained in care, custody or control.”

160               Section 12 of the Limitation Act provides that an action founded on tort, including a cause of action founded on a breach of statutory duty, is not “maintainable after the expiration of a limitation period of three years from the date on which the cause of action first accrues to the plaintiff …”. Section 21 then provides that the provisions of s 12 (and other sections which are not presently relevant) do not apply, “except so far as they may be applied by analogy” to various causes of action for equitable relief. Thus s 12, prima facie, applies to all causes of action that have been raised by Mrs Cubillo and Mr Gunner other than the allegations in each statement of claim that the Commonwealth has been guilty of breaches of fiduciary duty.

161               The Limitation Act contains a provision in s 36 that time does not run where a person is under a disability; the term “disabled person” is defined to include a person who, by reason of age, is incapable of managing his or her affairs in respect of legal proceedings. As I understand it, there is no contest between the parties of this subject; all arguments proceeded upon the premise that in both cases the applicants were under the disability of infancy until they respectively attained the age of twenty one. By having regard to the dates of birth, as contained in the birth certificates that were annexed to Ms Lajos’ first affidavit, Mrs Cubillo turned twenty-one on 8 August 1959; Mr Gunner reached that age ten years later, on 19 September 1969. If one were to assume that Mrs Cubillo’s and Mr Gunner’s causes of action all accrued during their respective infancies – and that would seem to be the case in the two actions for false imprisonment - then the effect of s 36 is to extend the limitation period so that it would expire three years after they each obtained their majority. In Mrs Cubillo’s case this would mean that she should have instituted her proceedings before 8 August 1962 – almost thirty seven years ago; in Mr Gunner’s case, the date would have been in September 1972 – twenty six years ago.

162               That statement is, of course, dependent upon findings as to the date or dates when the other causes of action accrued. Mr Meagher QC for the Commonwealth argued that causes of action in unintentional torts (including negligence and breach of statutory duty) are complete when injury or loss is suffered, even if the applicants are unaware of suffering the loss or damage. He relied, for that proposition, on the decision of the House of Lords in Cartledge v E Jopling & Sons Ltd [1963] AC 758. That was a case that dealt with the claims of nine workmen who had contracted pneumoconiosis, a disease in which slowly accruing and progressive damage is caused to a person’s lungs without that person being aware of it. The workmen having sued their former employer, the evidence established that many years would have passed before a person discovered that he had suffered substantial injury. The judge at first instance found breaches of statutory duty and assessed damages but held that all claims were barred under the Limitation Act 1939 (UK). At that stage, there was no statutory provision allowing for the grant of an extension of time within which to institute proceedings save for cases of fraud or mistake. The Court of Appeal dismissed their appeal as did the House of Lords. The House of Lords held that in such cases, the cause of action accrues at the date of the loss or damage when there has been a wrong from which loss or damage is suffered, irrespective of the victim’s knowledge of such loss or damage.

163               Lord Pearce summarised the case for the appellants as follows:

“When the writs were issued, six years had already elapsed since the cessation of the breach which caused the damage. The claims would therefore be barred if the date of the breach of duty was the date on which the causes of action accrued. But negligence and breach of statutory duty are not actionable per se and no cause of action arises unless and until the plaintiff can show some actual injury. Normally the injury is contemporaneous with the wrongful act, but it is not necessarily so. In the present case, therefore, the causes of action did not accrue until some actionable injury was caused to the plaintiffs by the defendants’ breach of duty. The judge found that “each of these men had suffered damage and causes of action had accrued in each case before October 1, 1950.” Mr Waller contends that the judge erred in principle in so finding.

First, he contends that the injury to the plaintiffs must be taken to have first occurred when the man became aware of his disease; since a man who does not feel any symptoms or have any knowledge of his physical disease has suffered no injury. Secondly, he argues that even if a cause of action accrued when the unknown injury was done to the lungs, a fresh cause of action accrued when the damage was discovered. Finally, he argues that in the case of injury by such insidious diseases as pneumoconiosis the courts should import into the words of the Limitation Act a gloss that the cause of action does not accrue or time does not begin to run until such time as the plaintiff knows or ought to know that he has suffered injury.” (777-778)

 

But his Lordship rejected these arguments saying at 778:

“In my opinion, it is impossible to hold that a man who has no knowledge of the secret onset of pneumoconiosis and suffers no present inconvenience from it cannot have suffered any actionable harm.

…

Nor can his knowledge of the state of his lungs be the deciding factor. It would be impossible to hold that while the X-ray photographs are being taken he cannot yet have suffered any damage to his body, but that immediately the result of them is told to him, he has from that moment suffered damage. It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree.”(778-779)

 

Arguably, it could be said that, unlike pneumoconiosis, a psychiatric or a psychological illness does not necessarily arise at or about the same instant of time as the act that caused the illness. That, however, is a matter for evidence and, as Mr Rush QC was quick to point out, that evidence is not presently before the Court. Putting that possible qualification to one side however, the Law Lords were consistent in their approach. Lord Pearce said at 782:

“Past cases have been decided on the basis that the time runs from the accrual of the cause of action, whether known or unknown, and no case has been cited in which the plaintiff’s lack of knowledge has prevented the time from running where that lack of knowledge has not been induced by the defendant.”

 

Lord Reid said:

“It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer, and that further injury arising from the same act at a later date does not give rise to a further cause of action.” (771-772)

 

Lord Evershed came to the same conclusion:

“My Lords, it cannot, I conceive, be in doubt … that the cause of action from such a wrong accrues when the damage – that is, real damage as distinct from purely minimal damage – is suffered. To postpone the date in such a case as the present would, in my opinion, necessarily require the insertion of some words qualifying the statutory formula.” (773-774)

 

Lord Morris of Borth-y-Gest was of the same view:

“My Lords, for the reasons which my noble and learned friend, Lord Pearce, sets out in his speech, I see no escape from the conclusion that if a breach of duty causes an injury to the lung, a cause of action arises when that injury is done and that the cause of action is not postponed until such time as there is (or ought to be) knowledge of the occurrence of the injury. The presence in the Limitation Act, 1939, of the provisions which are contained in section 26 points, in my view, to the conclusion that apart from some special provision the accrual of a cause of action is not dependent upon knowledge that it has accrued.”(776)

 

164               The harshness of the decision in Cartledge v Jopling has since been relieved by amending legislation that gives the Courts power to extend time. However, the case remains of importance because it shows the need for findings to be made as to the date of the accrual of a cause of action. Whilst the workmen had contracted pneumoconiosis many years earlier, it might be that Mrs Cubillo’s and Mr Gunner’s psychiatric or psychological injuries were contracted only in recent times. Thus it is not possible to say (as to those alleged injuries) when these proceedings should have been instituted; nor is it possible, without medical evidence, to say whether such inquiries are, to use the language of Lord Pearce at 771-772 only a “further injury arising from the same act at a later date.”

165               As has been earlier indicated, the Commonwealth sought an order directing that the two applications for extensions of time pursuant to s 44 of the Limitation Act be brought on for hearing and determination. Counsel for the applicants opposed that proposal, arguing that it would be necessary for both applicants to adduce oral evidence in support of their respective claims; submitting that it would not be expedient to conduct “mini-trials” on this issue, Mr Rush QC argued that the question of the applications for extension should be dealt with as part of the substantive trial.

166               The cause of action for false imprisonment accrues at the time of the imprisonment but the ongoing detention without lawful justification is a continuing wrong. However, the limitation period, subject to the infancy disability, will start to run when the detention ends. On the other hand, causes of action in negligence and for breach of statutory duty will not accrue until each of the elements of duty, of breach of that duty and injury or damage consequential upon that breach are present. Sometimes, and perhaps in the majority of cases, such a cause of action will accrue when the actionable damage is first sustained – physical injuries resulting from the motor car collision, the work place accident and the fall in the supermarket are normal examples of such an event. But, as counsel for the applicants submitted, that general proposition is subject to a qualification that there can be cases where an applicant has sustained different categories of damages as a result of the respondent’s wrongful act; in those cases it is possible that the applicant has separate causes of action in respect of each category of damage. This might occur where, well after the happening of the traumatic event, the applicant develops psychiatric or psychological disabilities. It is for this reason that the applicants have submitted that their causes of action for damages for psychiatric and psychological injuries did not accrue until the applicants respectively became aware, or ought reasonably to have become aware, of the existence of these injuries and of their connection to their removal from their families and their detention in the institutions. The nature of this submission throws up, in sharp relief, the difficulty that confronts the Court in considering this strike out application. In the first place there is the general assertion in the two statements of claim that there were losses and injuries of this kind, but, as yet, there is no evidence that establishes when the injuries developed and when they became apparent to the applicants. Furthermore, there is no evidence that establishes when the applicants related the injuries to their removal and detention. And, of course, even though it might ultimately be found that all causes of action accrued many years ago, “Limitation” legislation can be used to permit extensions of time to persons who have suffered long-standing, but latent, injuries that manifest themselves years after the event: Williams v Minister, Aboriginal Land Rights Act 1983 (see above) at 499 per Kirby P. In Lovett v Le Gall (1975) 10 SASR 479 at 482 Bray CJ (with whom Walters & Wells JJ agreed) alluded to the case where “a man who thinks he has only received some trifling injury and later discovers that the accident has produced grave, though hitherto unsuspected, physical injuries”. The learned Chief Justice added “Indeed, one of the material facts on which the learned judge founded in the present case was of such a nature”.

167               It has been asserted by both Mrs Cubillo and Mr Gunner that they each now suffer disabilities of that kind and that they have so suffered them from some unspecified date. Whether those injuries exist, whether they have existed for some lengthy period of time, whether they can be traced back in any meaningful way to the Commonwealth, are not matters that can be the subject of findings in these interlocutory proceedings. But their identification is sufficient to establish the need to take evidence on these and related topics. They are all questions of fact that are yet to be determined.

168               Difficulty in fixing the date of the accrual of a cause of action has been the reason why, in some cases, it has been held that the “limitation” defence should be determined at trial after all the relevant evidence has been taken: Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. In Wardley the following observations were made by Mason CJ, Dawson, Gaudron and McHugh JJ at 533-534:

“We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and the circumstances in which it was sustained to justify a confident answer to the question. Magman International illustrates the problems which can arise, particularly in a case involving foreign loans.”

 

169               A recent example of the application of the decision in Wardley Australia Ltd v Western Australia is to be found in the unreported decision of the Queensland Court of Appeal in Noble v State of Victoria (judgment delivered 13 April 1999). The plaintiffs claimed that they were descendants of Jack Noble and Gary Owens, two Aboriginal men who participated in the capture of Ned Kelly and his gang at Glenrowan. It was claimed that they were each granted a reward of fifty pounds but that the rewards were never paid. The plaintiffs’ claims had been struck out but, on appeal, the Court, by a majority, restored them. McPherson JA (with whom McMurdo P agreed), after referring to the statement in Wardley’s case that it is undesirable that limitation questions should be decided in interlocutory proceedings said:

“but, for all that, a decision to strike out an action summarily as an abuse of process ought in the end to be based on the inherent weaknesses of the action itself, and not on what appears to be the potential strengths of a defence to which an answer may yet emerge.”

170               The provisions of subs 44(3) of the Limitation Act are virtually the same as the provisions of the Limitation of Actions Act 1936-1975 (SA). Section 48 of the South Australian Act was added by the Statutes Amendment (Miscellaneous Provisions) Act, 1972 (SA). After granting the Court a general power to extend the time for bringing an action, subs 48(2) then provided:

“(2) An extension of time shall not be granted by a court under subsection (1) of this section unless it is satisfied that facts material to the plaintiff’s case were not ascertained by him until –

(a)          after, or within twelve months before, the expiration of the period of limitation;

(b)          within twelve months before the commencement of the action,

and that in all the circumstances of the case it is fair and equitable to grant the extension of time.”

171               Later, in 1975 s 48 of the South Australian Act was repealed and re-enacted; subs 48(2) became par 48(3)(b)(i) and par 48(3)(b)(ii) was inserted to give a plaintiff the opportunity to seek an extension of time where he or she had acted detrimentally as a result of representations that had been made by or on behalf of the defendant (c.f. par 44(3)(b)(ii) of the Northern Territory Limitation Act.

172               In Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628, a decision based on the South Australian Act, the High Court held that a fact does not need to have a bearing on a party’s decision to commence proceedings in order to be “material”; it decided that a fact is material to a party’s case “if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case” (636).

173               An example of a “material fact” was the expectation of a political solution to the problems facing the plaintiff: see State of South Australia v Johnson (1982) 42 ALR 161. In that case, the plaintiff sued the State, claiming damages for breach of contract and negligence; he alleged that he had taken up a perpetual lease of a property on Kangaroo Island relying on statements made by officers of the State that the property was “suitable for fat lambs and wool production”. He issued his writ on 14 July 1977. The plaintiff claimed that he had been unable to achieve a successful lambing operation and that, as a result, he had suffered severe losses. The trial judge found in the plaintiff’s favour on the negligence claim and therefore did not consider the claim in contract; he rejected a defence based on the Limitation of Actions Act 1936-1975 (SA), even though he found that the damage suffered by the plaintiff occurred in the lambing season in the middle of 1967. Based on that finding, the action would have been statute barred until the middle of 1973. His Honour found that, by 1977, the expectation of a political solution to the problems facing the plaintiff and other farmers in Kangaroo Island, justified the plaintiff withholding legal action. As a result, the trial judge extended the time so as to allow the suit to be maintained. This meant that a period of ten years or so had elapsed between the accrual of the cause of action and the institution of proceedings. On appeal to the Full Court of the Supreme Court of South Australia, the State was unsuccessful. Save for some comparatively minor adjustments, the appeal was dismissed. In the High Court, on the issue of whether the cause of action was statute barred, the members of the Court were unanimous. They concluded that the cause of action was complete by the middle of 1966, a date that was twelve months earlier than that determined by the trial judge. But subject to that qualification, they noted that the cause of action was still within six years of the enactment of the 1972 amendment that conferred on South Australian Courts a discretion to extend time in which to institute a suit. As to whether the trial judge’s discretion had miscarried, the members of the High Court said:

“The year 1972 was the year of greatest achievement for the Gosse Committee. It was in that year that the Commonwealth Minister for Primary Industry (Mr Sinclair) introduced legislation in the Commonwealth Parliament with a view to the alleviation of the Kangaroo Island problem. This step was the culmination of a period of intense political activity which aroused sufficient support for the settlers’ cause among Ministers and officers of the State to encourage Mr Johnson to anticipate a political solution. On balance, we think there is sufficient to sustain the exercise of the discretion.”

 

174               In Ulowski v Miller [1968] SASR 277 Bray CJ (with whom Mitchell & Walters JJ concurred) at pp 280-283 had earlier listed various matters of importance in considering an application for an extension of time. They included:

·                 The extent of the delay, although that “will rarely be decisive or even significant” and whether the delay was that of the applicant or the solicitors for the applicant;

·                 The explanation for the delay;

·                 The hardship to the applicant if the action is dismissed;

·                 The hardship to the respondent if the action is allowed to proceed;

·                 The respondent’s conduct.

175               In Lovett v Le Gall (see above) Bray CJ added two more factors: the applicant’s conduct and the nature, importance and circumstances surrounding the ascertainment of the new material facts.

176               To those significant factors, which are not be regarded as inflexible limitations, there can also be added the observation made by Kearney J in the Supreme Court of the Northern Territory in Forbes v Davies (1994) Aust Torts Rep. 61,392 (81-279) that a Court should also consider the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed (at 61,401). Evidence on each of these subject matters would be needed before an informed decision could be made. That evidence can best be adduced during the course of the trial; it would not, in my opinion, be expeditious to hold a preliminary hearing to determine these issues.

177               The Commonwealth flagged its intention to challenge both Mrs Cubillo and Mr Gunner about their first knowledge of their ability to institute these proceedings. There is information on the Court file which, says the Commonwealth, would establish that they each would have had much earlier knowledge. It is claimed for example, that Mrs Cubillo participated in the research for a book on the subject of the “Stolen Generation” and that she attended at a conference dealing with the plight of children who had been removed from their families. Of Mr Gunner, it is said that his work with the Aboriginal Legal Service would have given him considerable knowledge of the legal system. Although these might become important issues, they cannot be assessed at this stage. I have mentioned them only because they were adverted to during the course of submissions on behalf of the Commonwealth. But the time to give them appropriate consideration will be when the applicants seek their extensions of time within which to prosecute their actions.

178               For the reasons that I have endeavoured to explain, I am not prepared to order that the applications by Mrs Cubillo and Mr Gunner for extensions of time be heard and determined prior to the substantive trial. It follows, in my opinion, that I should reach the same conclusion with respect to the Commonwealth’s proposal that there should be a preliminary hearing to determine whether the applicants’ claims for equitable damages are barred by analogy to the barring by statute of their claims at common law or by the principle of laches. After all, no matter what cause of action is being considered, they all arise out of the same factual matrix: that is, the removal and detention of the applicants in the institutions, the way in which they were treated whilst in the institutions and the consequences that have flowed from that removal and detention.

Hardship

179               The applicants have complained about the breadth of the Commonwealth’s attack, referring to statements made during the course of earlier directions hearings by counsel for the Commonwealth. Those statements indicated that the Commonwealth’s strike-out application would be limited to an argument that neither applicant had identified in their pleadings grounds that would satisfy the conditions that must be fulfilled to enliven the favourable application of the Court’s discretion to grant extensions of time under s 44 of the Limitation Act. Although I refused an application on the part of the Commonwealth to hear and determine, as preliminary questions, whether the applications for extensions of time should be granted and whether the claims for equitable damage should be barred, I saw no reason why these subject matters and, indeed, any other subjects that the Commonwealth thought relevant, should not be raised by the Commonwealth in the course of its submissions with respect to the claimed issue of irreparable prejudice. Indeed, I know of no reason why the Commonwealth should be restricted in its arguments on its application for summary dismissal; it is entitled to advance any relevant material in support of the orders that it seeks.

180               The Commonwealth relied heavily on the decision of the High court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The plaintiff, Ms Taylor, sued the Health Authority, alleging that it was vicariously liable for the conduct of a doctor in 1979; she claimed that the doctor had failed to explain the choices that were available to her when she was faced with a decision whether to undergo a hysterectomy. She alleged that the doctor told her that the operation was necessary to relieve severe pain and bleeding. She accepted this advice and the operation was performed. However, she continued to experience pain during the ensuing fifteen years. In 1994, she obtained the hospital records concerning her treatment; they referred to a pelvic inflammatory disease which was said to be a non-operative disease not treatable by hysterectomy. She instituted proceedings in the District Court, applying for an extension of time under subs 31(2) of the Limitation of Actions Act 1974 (Qd) in which to bring an action. That subsection provides as follows:

“Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –

(a)           that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action;

(b)           that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”

 

181               There was evidence that, at the time of the institution of the proceedings, the doctor who had performed the hysterectomy then resided overseas and that attempts to contact him had been unsuccessful. The learned trial judge held that the Health Authority would be placed in a position of serious prejudice having regard to the lapse of time – particularly since it was possible that the doctor may not be located and, in any event, it seemed unlikely he would have any recollection of the conversations that were alleged by Ms Taylor to have occurred. His Honour therefore declined to grant an extension of time. The plaintiff appealed successfully to the Court of Appeal of the Supreme Court of Queensland; that Court concluded that once an applicant had satisfied the conditions in subs 31(2) there was an evidentiary onus on the Health Authority to demonstrate prejudice, which in this case it had not discharged. By a majority of four to one, the High Court allowed the Health Authority’s appeal.

182               McHugh J, at 552, said that the “effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions.” He explained that courts and commentators have perceived four additional broad rationales for the enactment of limitation periods. They can be summarised as follows:

·        as time goes by, relevant evidence is likely to be lost;

·        it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;

·        people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;

·        the public interest requires that disputes be settled as quickly as possible.

183               When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has “the positive burden of demonstrating that the justice of the case requires that extension”: McHugh J at 554; see also Dawson J at 544 where he agreed with McHugh J, adding that to “discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.” Dawson J also agreed with McHugh J that “once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”(p 544)

184               Toohey and Gummow JJ in their joint judgment expressed themselves in these terms at 547-548:

“The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”

In the District Court [the trial judge] outlined the facts as they emerged from the material before him. He then referred to the judgment of Tadgell J in Kosky v Trustees of Sisters of Charity (1982) VR 961 which concerned an application for extension of time under the Limitation of Actions Act 1958 (Vict). Tadgell J referred to the discretion under the Victorian Act and continued [ in Kosky 969]:

“There are no doubt some cases in which a lapse of fourteen years from the time of allegedly negligent conduct until the commencement of an action in respect of it would of itself render a fair trial of the issues impossible or so unlikely that a trial ought not to be countenanced. In such a case it would presumably be right to refuse to make an order . . . even if the applicant were otherwise entitled to ask for one.”

[The trial judge] referred to the difficulties confronting the respondent: the uncertainty of locating Dr Chang and the unlikelihood of him having any recollection of the conversation. His Honour recognised that the respondent bore the onus of proof in any action against the appellant and that the contemporary medical records would appear to make the discharge of that onus a difficult task for her. “Nevertheless”, he concluded, “I think that the [Health Authority] is placed in a position of serious prejudice having regard to the lapse of time which has occurred”. It was open to his Honour to take a different view on the facts but there can be no quarrel with the general approach he took.”

 

185               Mr Meagher QC, for the Commonwealth, emphasised the concept of a fair trial and the acceptance of that concept by Toohey and Gummow JJ at 548 and again at 550; at that former reference their Honours had said:

“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

 

186               In Sydney City Council v Zegarac [1998] 43 NSWLR 195 at 200, Mason P questioned whether this reasoning applied to the New South Wales Limitation Act 1969 having regard to the presence of an express provision that required the Court (when considering an application for an extension of time) to have regard to:

“(a) …

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.”

187               As Mr Meagher QC pointed out, there is no equivalent provision in the Northern Territory Limitation Act and, hence, I do not consider that I need share the concern of the learned President. I do, nevertheless, agree with his earlier remarks (at p 199) that “mere proof of actual prejudice [to a respondent] will not dictate the rejection of an application to extend time.” Prejudice of such a nature is a most important consideration but, despite its importance, it is but one of several factors that are to be assessed.

188               McHugh J in Brisbane South Regional Health Authority v Taylor (see above) also emphasised the importance of ensuring that a fair trial will be available to a prospective defendant. His Honour listed the various factors that are to be considered by a trial judge when considering an application for an extension of time and the consequences that will or might flow from the grant of such an extension. He said at 555:

“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

 

189               There are, of course, no allegations of fraud, deception or concealment in these cases against the Commonwealth with respect to the applicants’ failure to institute their respective actions within the conventional time limits. Speaking more generally, McHugh J went on to say:

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.”(555)

 

190               I do not see, in this passage, a different approach to that taken by Toohey and Gummow JJ. In my view the reference to the defendant being able “to prove that he or she will not now be able to fairly defend him or herself” is only the “evidentiary onus” to which Toohey and Gummow JJ referred at 547.

191               Paramasivam v Flynn (see above) is an example of another case that was summarily dismissed because of the very great prejudice to the respondent due to the lapse in time between the date of the alleged sexual assaults and the institution of the proceedings. The appellant had issued a writ and statement of claim on 23 April 1996 alleging that twenty years earlier in 1976, as a child of eleven years of age, he had been sexually assaulted by the respondent and that the respondent had, thereafter, continued to abuse him sexually on a regular basis until the appellant reached the age of twenty one on 15 November 1985. The appellant sought damages for assault and for breach of fiduciary duty; the latter claim was based on the allegation that the respondent was, at material times, the appellant’s guardian. The respondent filed a defence in which he denied all matters of fact that had been alleged against him in the statement of claim; the respondent also pleaded that the action, having been commenced more than six years after the alleged causes of action had accrued, was barred by the relevant limitation legislation. The appellant filed a notice of motion seeking to extend the limitation period to the date of the issue of the writ; the respondent countered by filing a notice of motion seeking summary judgment on the ground that the claims were statute barred. The two notices came on for hearing at the same time and the judge at first instance found in favour of the respondent; his Honour held that the appellant had not discharged the onus of showing that it was “just and reasonable” to extend the time within which to commence the proceeding and, further, that the respondent was entitled to summary judgment against the appellant.

192               The relevant legislation that the Court was required to consider in Paramasivam v Flynn included the Limitation Act 1985 of the Australian Capital Territory. Subsection 36(2) of that Act imposed an onus on a plaintiff to satisfy the Court that it was “just and reasonable” to order an extension of time, whilst subs 36(3) identified matters that the Court “shall have regard to” in coming to its decision. Of the several matters that are listed in the subsection, the length of and the reasons for delay and the extent to which, having regard to the delay, there is, or is likely to be, prejudice to the defendant are the first two that are mentioned. The following passage from the judgment of the Full Court at pp 209-210 addresses the issue of delay and sets the scene for the ultimate decision that the appellant’s appeal should be dismissed:

“In relation to delay, his Honour observed that the claim for the earliest of the assaults alleged became statute barred on 15 November 1985 while the claim for the most recent of the assaults became statute barred on 15 November 1991. It follows that the writ was 10½ years “out of time” in respect of the former and four and a half to five years in respect of the latter. The length of time from the first alleged assault in Fiji to the issue of the writ was in the order of 20 years and for the first alleged assault in Sydney more than 17 years. Thus the appellant was seeking a very substantial extension. His Honour considered that the nature of the appellant’s case was such that it was forensically unrealistic to consider granting the extension of time in relation to only some of the later assaults. It was a case where evidence would have to be led in relation to all of the alleged assaults in order to establish a pattern of behaviour of the type for which the appellant contended and he would certainly be cross-examined at large.”

 

193               The acts of removing Mrs Cubillo – first from Banka Banka Station to Seven Mile Creek, then to the Six Mile Creek, then to Phillip Creek and finally from Phillip Creek to the Retta Dixon Home - are probably the most important part of Mrs Cubillo’s case; all other allegations, including the claim that the removal was part of an indiscriminate, uncaring government policy, radiate out from those acts of removal. The case for the Commonwealth would, so it was claimed, have been materially assisted by the evidence of:

·                 the two patrol officers, Messrs Harney and McGuiness who allegedly removed Mrs Cubillo, forcibly and against the wishes of her family from Banka Banka Station;

·                 Mr and Mrs Ward, the owners of Banka Banka Station at the time of Mrs Cubillo’s removal;

·                 Mr Penhall, the patrol officer who drove Mrs Cubillo and the other children from Phillip Creek to the Retta Dixon Home in Darwin; and

·                 Miss Amelia Shankelton, the Superintendent of the Retta Dixon Home during Mrs Cubillo’s residency and the person who is said to have played a pivotal role in taking Mrs Cubillo from Phillip Creek to Darwin.

194               The Commonwealth claims that these witnesses would have refuted the claim that Mrs Cubillo was removed without the consent of her family. But all those witnesses are dead and the Commonwealth is deprived of the opportunity of investigating and using their evidence. The Commonwealth is not, of course, in a position to say that these witnesses would have refuted Mrs Cubillo’s claim: after all the witnesses are dead and no one knows what they might have said. However, I do not think that it is necessary for the Commonwealth to prove what the witnesses would have said; it is sufficient for it to prove that they would have been, more likely than not, material witnesses and that they are no longer available to give evidence because of the delay on the part of Mrs Cubillo in the institution of her proceedings.

195               In par 1(a) of her statement of claim, Mrs Cubillo alleged that she was, following her removal, “detained and kept away from her mother and family by the Director of Native Affairs …”. She later identified the persons who held the office of Director during her detention as Messrs Chinnery, Carrington, Moy, Stahl, McCaffrey and Giese. All these men except Mr Giese are dead and Dr Burrows gave evidence that Mr Giese is not able to give evidence due to memory impairment and the onset of dementia.

196               I have earlier said that in par 31 of her statement of claim Mrs Cubillo claimed that there was a “general policy of removal and detention of half-caste children . . . without regard to the individual circumstances” of the particular child. The Commonwealth has denied that there was such a policy. But in order to substantiate that denial, the case for the Commonwealth would have been assisted, so it was argued, by the oral evidence of the senior bureaucrats and the political leaders of the day. Miss Lajos, in her first affidavit, has listed Prime Ministers, Ministers of the Crown responsible for administration of the Northern Territory, the Administrators and the relevant Departmental Secretaries over various periods encompassing the periods of Mrs Cubillo’s and Mr Gunner’s detention; they are all dead. Of the political leaders, Sir Paul Hasluck stands out; he was the Minister of State responsible for the welfare of Aboriginals in the Northern Territory from 1951 to 1963. He wrote extensively on the subject. But he died on 9 January 1993. His writings are available but the Commonwealth is denied the opportunity of presenting his oral evidence.

197               The Commonwealth has directly taken issue with the applicant’s allegations as to the policies of the Government that were formulated from time to time and as to the manner in which those policies were implemented. The Commonwealth’s claim is that those policies were benign policies, directed to the welfare of Aboriginals and administered in terms consistent with those policies; its claim is that its capacity now to conduct its defences has been severely prejudiced by the passage of time and the loss of so many potential witnesses; it has been denied the opportunity of questioning people and of ascertaining whether, and to what extent (if at all), they would have been available as witnesses to assist the Commonwealth in the presentation of its defences.

198               It is not necessary to know that these missing witnesses would have assisted the Commonwealth’s case; it is sufficient to know that they are not available to be interviewed and, if appropriate, called as witnesses. It would be illogical to expect a respondent to put before the Court material pointing to the nature of the evidence that a dead or missing witness might have been able to give; it is sufficient if the Court is satisfied that the deceased or missing person was a person who, more likely that not, would have been able to assist the Court in resolving the issues.

199               Counsel for the Commonwealth acknowledged that there are a number of available documents that reflect the policies of the Government of the day. Acknowledging that those documents will speak for themselves, counsel nevertheless submitted that they would offer no assurance that they reflect all aspects of policy. That proposition could only be correct if material documents were missing so that the available documents did not thereby disclose the complete picture. If it was intended to mean that oral evidence that would supplement or, perhaps, contradict the contents of the documents has been lost as a result of deaths, I consider the submission to be misconceived. The thought that matters of importance relative to policy issues were not committed to writing has little or no appeal. It was also advanced, as part of the Commonwealth’s submissions, that the Commonwealth has produced writings on policy issues that are different in their effect to those contained in the documents that have been produced by the Applicants. As no examination of any documents has been undertaken by the Court at this stage, it is not appropriate to express a view on any alleged differences. But it does not follow that the Commonwealth is or will be thereby prejudiced. To say, as was suggested by the Commonwealth during the course of its submissions, that it has lost the opportunity to lead oral evidence as to which writing correctly reflected the policies that applied to Mrs Cubillo or to Mr Gunner - or to part Aboriginal children in general - is to overlook the possibility that (absent any question of ambiguity) oral evidence as to the meaning of a written document would not normally be admissible. It would seem to me that, in dealing with a matter of such importance as official government policy on a nominated issue, the likelihood of oral evidence being admitted to supplement or contradict official policy documents would be remote.

200               I do not, however, believe that I should make a finding, one way or the other, at this stage that the Commonwealth is or will be embarrassed in the presentation of its defence by virtue of the fact that senior political and executive officers are now dead. I include in that classification the various Prime Ministers and the Ministers of the Crown whose portfolios included Aboriginal Welfare, along with the Secretaries and senior members of the staff of their Departments; I also include the different Administrators of the Northern Territory. The Directors, and the officials who were answerable to the Directors, stand in a different position. Their potential to have been witnesses in these actions rests on different grounds; they would not so much be giving evidence on the identification of Government policies in matters pertaining to Aboriginals: the thrust of their evidence would, more likely than not, have been directed to the implementation of those policies and – more importantly – whether their actions and those of their subordinates exceeded the bounds of those policies.

201               The case for the Commonwealth that the respective statements of claim should be struck out and that the actions should be summarily dismissed is dominated by the claim that it will suffer irreparable prejudice if the matters are permitted to proceed. In short, the case for the Commonwealth is that so much time has gone by and so many material witnesses are now dead that it would not be possible for the Commonwealth to present its defence adequately. In other words, so it was submitted, one can consider, based on the material that is presently before the Court, this fundamental proposition in isolation from the question of extensions of time: one can consider whether the Commonwealth has made out such a case of prejudice that the two actions should now be dismissed. The Commonwealth put its submission on this issue in these terms:

“The only way in which these defences may be defeated, it is submitted, is by the Applicants being successful in invoking the judicial discretion to extend time. Such an application, whilst made in the statements of claim, has not been heard, determined and allowed. So long as that is the position, the defence must succeed. It is submitted that the Respondent has an unqualified existing right in law not to be pressed into trial on the common law claims.”

 

In my opinion, that proposition is not sound. It denies the applicants their right to be heard.

202               The strength of the Commonwealth’s claims, based on the decisions in Brisbane South Regional Health Authority v Taylor and Paramasivam v Flynn, is not to be overlooked. But I have come to the conclusion that the present application, based on hardship, has been made prematurely. The applicants have instituted their proceedings and, within reason, they are entitled to run their case as they see fit. The Court has power to give directions as to the conduct of the trial: O 32 r 4(1) of the Rules of Court, and may order the trial of a separate question under O 29, r 2. But as French J said in Famel Pty Ltd v Burswood Management Ltd (1990) ATPR 41-004 at 51,086-7:

“The question in the end is one of case management and the identification of the most economical and expeditious way of disposing of the proceedings. As Toohey J said in TVW Enterprises Ltd v Duffy … the decision is ultimately one for the Court although the attitudes of the parties are relevant.”

 

As the Court has earlier determined that it would not hear and determine the preliminary issues that were advanced by the Commonwealth, my assessment of the current position is that the Court cannot now assess the issue of the Commonwealth’s claim to have suffered irreparable prejudice without considering, at the same time, the issue of hardship to the applicants if their applications for extensions of time were to be refused. This is the feature that distinguishes both Brisbane South Regional Health Authority v Taylor and Paramasivam v Flynn from this case for both those cases dealt with a plaintiff’s application for an extension of time. In Sydney City Council v Zegarac at 199, Mason P summarised the effect of the judgment in Brisbane South Regional Health Authority v Taylor and concluded:

“… I would hold that proof of actual prejudice, even “significant” prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account … . If this is “individualised justice”, it was what parliament intended. Evidence of actual or significant prejudice may lead to refusal of the application, depending on the particular circumstances of the case. In weighing prejudice, its impact upon a fair trial is the primary focus … .”

 

In my opinion, this only serves to emphasise the need to hear evidence on the applications for extensions of time before considering the Commonwealth’s claims of irreparable hardship.

Conclusion

203               The decision that I have taken appears to involve me reaching conclusions that are, prima facie, favourable, to Mrs Cubillo and Mr Gunner. That does not mean, however, that I have formed a final opinion on any aspect of their respective cases; it only means that I am satisfied that they should be allowed to argue their respective causes. It seems to me, with respect, that these cases are of such importance – not only to the individual applicants and to the larger Aboriginal community, but also to the Nation as a whole – that nothing short of a determination on the merits with respect to the competing issues of hardship is warranted. That cannot be achieved until the applicants have placed before the Court all the material that they would wish the Court to receive before it rules on their applications for extensions of time. Indeed, it might even be that the Court might not rule on those issues until all the evidence in the substantive trial has been concluded. The strength of the case for the Commonwealth and its claim of irreparable prejudice cannot be ignored but it must be weighed in the balance. As yet, the case for the applicants, and the hardship that they would suffer, if all causes of action were to be summarily dismissed, is yet to be heard and assessed. The applicants have chosen to hold back at this stage on their applications for an extension of time; it is their intention to lead evidence in support of their applications for an extension along with their evidence in the substantive trial. That was, tactically, a decision that was available to them. I repeat myself but only because I wish to emphasise the importance of having these cases resolved on their merits, albeit that both sides will be severely hampered in the presentation of their respective cases because of the deaths of so many potential witnesses. After all available evidence has been presented, after the Court has had the opportunity to assess questions of hardship and prejudice, as those factors apply to both sides, then, but only then would it be proper to determine whether, on the assumption that extensions of time are warranted, one or other or both of the applicants have made out a case against the Commonwealth.

204               I decline, therefore, to make the orders sought by the Commonwealth in pars 2, 3 and 4 of its notice of motion dated 5 June 1998. Leave is granted to each applicant to file and serve (if so advised) a further amended statement of claim and further and better particulars of the statement of claim in terms consistent with these reasons. Further consideration of these proceedings is reserved and the directions hearing in each matter is adjourned to Wednesday 12 May 1999 at 9.00 am. There will be liberty to any party to apply, including liberty to relist on two days notice and liberty to speak to the minutes. All questions of costs are reserved for the trial judge.

SCHEDULE

Particulars of breaches of duty as a guardian – par 34 of Mrs Cubillo’s statement of claim

“(a) Failing to have regard to, and to act in, the best interests of the Applicant by failing to take into account her individual circumstances and in particular her relationship with her mother, family and community.

(b) Acting in accordance with a policy of removal and detention of half-caste children the purpose of which was to destroy the associations and connections of the Applicant with her Aboriginal mother, family and culture and to assimilate the Applicant into non-Aboriginal society without regard to her particular circumstances.

(c) Failing to fulfil the role and duties of guardian of the Applicant while she was detained in an institution, having regard to her particular needs and interests, and to the capacity of the Respondent to review and consider those needs and interests.

(d) Delegating the role and duties of guardian of the Applicant to the institution in which she was detained and failing to supervise the institution properly or at all in the performance of their obligations to the Applicant.

(e) Permitting the institution in which the Applicant was detained to maltreat her and to treat her in a cruel demeaning and degrading manner.

(f) Depriving the Applicant of her family, cultural and spiritual heritage, and in particular:

(i)                 causing the Applicant fear, anxiety, profound emotional distress, and psychological harm by forcibly removing her from her mother and family;

(ii)               causing the Applicant fear, anxiety, profound emotional distress, and psychological harm by detaining her and keeping her from contact or communication with her mother and family;

(iii)             depriving the Applicant of contact and meaningful relationship with her Aboriginal family, kin, home, land, culture, religion and heritage;

(iv)             requiring the Applicant to cease speaking her Aboriginal language and to lose the knowledge of, and the ability to speak, and to understand, that language;

(v)               depriving the Applicant of knowledge of the system of spiritual beliefs held by her Aboriginal mother and family;

(vi)             depriving the Applicant of knowledge of the traditional land of her Aboriginal mother and family, including knowledge of the sites on that land, the names of those sites, the location of the sites, the spiritual significance of the sites, the mythology associated with the sites, and the behaviour appropriate at the sites;

(vii)           depriving the Applicant of the opportunity to be initiated into the relevant Aboriginal community and to be accepted as a full and responsible member of that community;

(viii)         depriving the Applicant of the opportunity, qualifications and ability to participate in the spiritual life of her Aboriginal family, including participation in ceremonial life and other ritual practice, and the pleasure and sense of self-esteem associated with such participation;

(ix)             depriving the Applicant of the knowledge of the songs, dance, designs, and stories of her Aboriginal family, including the songs, dance and stories associated with her traditional land;

(x)               depriving the Applicant of the opportunity of growing up on her traditional land and of acquiring the knowledge of plants, animals and geography achieved by growing up on the land in the company of her mother and family;

(xi)             having a destructive influence on the Applicant’s sense of self;

(xii)           treating the Applicant in such a manner as to impede or render it impossible for her to form satisfactory relationships with her mother and family;

(xiii)         failing to release the Applicant from the care custody and control of the Respondent when required by law to do so or as soon as possible in the best interests of the Applicant.

(g)           Failing to have any or any proper system to enable the Applicant and her mother to maintain contact with each other following the removal and detention of the Applicant.

(h)           Failing to maintain any or any proper system of records in respect of the Applicant to enable the Applicant and her mother to maintain contact with each other following the removal and detention of the Applicant.

(i)             Causing the applicant fear, anxiety, grief profound mental and emotional distress and anguish, and psychological harm by reason of the matters set out in sub-paragraphs (a) to (h) herein.

(j)            Failing to make reasonable attempts to ensure that the Applicant would enjoy equal opportunity compared to non-aboriginal children in the society which the Respondent intended the Applicant to become a part of, being the nonaboriginal community of Australia.”

(Note: The same particulars are to be found in par 51 of Mr Gunner’s statement of claim).

I certify that the preceding two hundred and four (204) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin

Associate:

 

Dated: 30 April 1999

 

Counsel for the Applicants (the Respondents on the Notice of Motion):	Mr J T Rush QC with him Mr M Dreyfus and Ms M Richards
Solicitors for the Applicants (the Respondents on the Notice of Motion):	Northern Australian Aboriginal Legal Aid Service
Counsel for the Respondents (the Applicants on the Notice Of Motion):	Mr D R Meagher QC with him Ms E J Hollingworth, Dr M A Perry and Ms C Beaton-Wells
Solicitor for the Respondents (the Applicants on the Notice of Motion):	The Australian Government Solicitor
Dates of Hearing:	1-5, 8-11, 15-19 March 1999
Date of Judgment:	30 April 1999