FEDERAL COURT OF AUSTRALIA
LORNA CUBILLO
And
PETER GUNNER
v
THE COMMONWEALTH OF AUSTRALIA
(Action Nos 14 and 21 of 1996)
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.
O’Loughlin J
30 April 1999
IN THE FEDERAL COURT OF AUSTRALIA |
|
NORTHERN TERRITORY DISTRICT REGISTRY |
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BETWEEN: |
LORNA CUBILLO DG 14 OF 1996 Applicant
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AND: |
COMMONWEALTH OF AUSTRALIA Respondent
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BETWEEN: |
PETER GUNNER DG 21 OF 1996 Applicant
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AND: |
COMMONWEALTH OF AUSTRALIA Respondent
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JUDGE: |
O'LOUGHLIN J |
DATE OF ORDER: |
30 APRIL 1999 |
WHERE MADE: |
DARWIN |
SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 30 APRIL 1999
The applicants in these proceedings, Mrs Lorna Cubillo and Mr Peter Gunner, have claimed that they are members of “the Stolen Generation”; that is the term that has become well known in its application to part Aboriginal children who were taken from their families and placed in homes and institutions. They have sued the Commonwealth, claiming that it, through its servants and agents, was the party responsible for their removal and detention; it is their case that the removal and detention was unlawful.
The Commonwealth has denied all responsibility. For example, in the case of Mrs Cubillo, the Commonwealth has claimed that she was taken to the Retta Dixon Home for Aboriginal children and kept there by Miss Amelia Shankelton, the Superintendent of the Home. The Commonwealth says that it had no part to play in either her removal or her detention. As for Mr Gunner, it is the Commonwealth’s case that he was taken to St Mary’s Hostel at Alice Springs with the express consent of his mother. The Commonwealth says that there is a document on the court file that contains the thumbprint of Mr Gunner’s mother, indicating her consent.
However, despite its claims that it has defences on the merits, the Commonwealth has submitted that these matters should not go to trial. It has made two preliminary claims.
First, it has argued, as a matter of law, that Mrs Cubillo and Mr Gunner do not have any causes of action against the Commonwealth. Secondly, it raises a question of hardship; it has argued that these proceedings should have been instituted, in the case of Mrs Cubillo, thirty seven years ago, and, in the case of Mr Gunner, twenty six years ago. The Commonwealth’s claim is that so much time has now elapsed, so many witnesses are now dead and the memories of those living are now so impaired that it would be manifestly unfair to the Commonwealth if the Court were to grant the applicants an extension of time in which to bring their proceedings.
The decisions that I am about to announce today deal only with the Commonwealth’s application that the Court should summarily dismiss these actions; they do not address the merits of Mrs Cubillo’s and Mr Gunner’s claims nor do they address the merits of the Commonwealth’s defence.
I have found that there are some deficiencies in the statements of claim. However, they are not sufficient to justify summary dismissals. Those deficiencies are as follows:
· 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. (par 65)
· The reference in the particulars of claim to “international principles” concerning the advancement and protection of human rights is not appropriate; international treaties are not part of our domestic law and these are not cases where the concept of “legitimate expectation” arises. References to “international principles” is to be struck out. (par 103)
· In my opinion, the present state of the pleadings fails to disclose a compensable claim so far as it alleges that there have been losses of entitlements under the Aboriginal Land Rights (Northern Territory) Act. The claim for compensation arising under, or as a consequence of, that Act is struck out but with liberty to the applicants to replead their claims with further and better particularity. (par 145)
The applicants will therefore have leave, should they wish to exercise it, to file and serve fresh statements of claim remedying the error that I have identified. That must be done within 14 days.
Subject to those comments, I reject the Commonwealth’s submissions that, as a matter of law, the pleaded causes of action are not available to the applicants.
As to the issue of hardship, I have concluded that the Commonwealth’s claim has been made prematurely. The Commonwealth advanced a strong case, but it would not be fair to make a decision on it without first giving Mrs Cubillo and Mr Gunner the opportunity to be heard in their applications for extensions of time. After all, it is they who will suffer hardship if the Court decides not to grant them their extensions.
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. I have reached 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 principles of laches. In my opinion, that would amount to a mini-trial; my view is that it would be more effective and more cost-efficient, in the long run, to hear their applications for extensions of time during the course of the main trial. That will also be the occasion when the issue of the Commonwealth’s hardship can be raised and evaluated.
The decisions that I have taken 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.
The Court therefore refuses to make any of the orders sought in pars 2, 3 and 4 of the Commonwealth’s notice of motion dated 5 June 1998.
Further consideration of these proceedings is reserved and any party is at liberty to apply to have the matter relisted on two days notice. If it suits the convenience of the parties, there can be a directions hearing at 9.00 am CST 9.30 am EST on Wednesday 12 May 1999. An alternative date and time can be arranged, if necessary, by contacting my associate.
The applicants are to bring into Court short minutes of order reflecting the reasons of the Court and there will be liberty to speak to the minutes. The question of costs is reserved to the trial judge.
I publish my reasons.
The full text of the judgment and this summary is available at www.fedcourt.gov.au