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Australian Indigenous Law Reporter |
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Court and Tribunal Decisions - Australia
Federal Court of Australia (O’Loughlin J)
11 August 2000
[2000] 174 ALR 97; [2000] FCA 1084
Removal and detention of Aboriginal children — Aboriginals Ordinance 1918 (NT) — Welfare Ordinance 1953 (NT) — Government policies and practice — evidence — vicarious liability — false imprisonment — statutory duty — duty of care — extension of time — laches — damages.
Ms Cubillo was removed, aged nine, from Phillip Creek Native Settlement in 1947 and detained in the Retta Dixon Home, run by the Australian Inland Mission, until she was 18. Mr Gunner, aged eight, was taken from Utopia station in Central Australia in 1956. He was placed in St Mary’s Hostel, run by the Australian Board of Missions. Both claimed they suffered ill treatment of various kinds, including assault. The applicants alleged:
(1) that their removal and detention constituted wrongful imprisonment;
(2) there was a breach of statutory duty;
(3) there was a breach of common law duty of care;
(4) there was a breach of fiduciary duty owed to them by the respondent; and
(5) that the respondent was vicariously liable for the actions of the Directors.
The applicants pleaded unlawful removal and detention. The onus then fell on the Commonwealth to refute the allegations. Section 16 of the Aboriginals Ordinance provided total protection from the applicants’ claims of wrongful detention. The evidence did not establish any general policy of removal of part-Aboriginal children. Even if there was such a policy, the Court was not satisfied that it was ever implemented in the case of the applicants.
The applicants alleged that the Directors were liable for breach of their statutory duties owed to the applicants as their legal guardians. The Court held that the applicants were not able to establish such a breach.
The applicants alleged that by removing them and detaining them the Commonwealth breached its duty to take reasonable care. The Court held that neither the Commonwealth nor the Directors owed either applicant a duty of care.
Even if a duty of care was owed, the applicants were unable to establish any breach of that duty except in the case of the Director of St Mary’s, who was in breach in that he allowed the conditions to become so bad. However, Mr Gunner was unable to prove that he suffered damage as a result. The assaults did not place the Director in breach of duty, because the Director did not know of them and it was not established by the applicants that he should have known.
It was held that it was inappropriate for a trial judge to extend the categories of fiduciary relationship into the area of non-economic interests. In addition, even if the applicants were in a fiduciary relationship with the Commonwealth they were unable to establish any breach.
No vicarious liability attached to the Commonwealth as a result of either applicant being removed in accordance with s 6 of the Aboriginal Ordinance. Even if the Directors were in breach of a statutory duty, no liability attached to the Commonwealth because the duties were imposed on the directors personally and by virtue of their office, and they acted independently and free of the control of the Commonwealth under the Ordinances. In the case of St Mary’s Hostel the Director failed in the performance of his duty, but no vicarious liability attached to the Commonwealth.
The application for extension of time was refused on the basis that it would cause unreasonable delay and prejudice to the respondents.
The Court assessed damages in the event that an Appeal Court found the applicants had a sustainable cause of action. The applicants claimed damages on the basis of their loss of Aboriginal language, culture and way of life as a result of the unlawful conduct of the respondent. They also claimed losses in relation to their recognition as traditional landowners. It was held that damages were claimable under these heads of damages. However, they were under an obligation to mitigate their damages. They were also entitled to damages for psychiatric injuries caused by their removal and detention.
Ms Cubillo’s damages were calculated at $126,800 and Mr Gunner’s at $144,100. The Court refused the applicants’ claims for exemplary or aggravated damages.
1. The applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are said to be members of ‘the Stolen Generation’. That is the term that has been widely used to refer to the former practice of taking part Aboriginal children from their families and placing them in missions or institutions. Mrs Cubillo has claimed that in 1947 she and 15 other children were forcibly removed by servants or agents of the respondent from the Phillip Creek Native Settlement and thereafter detained in the Retta Dixon Home in Darwin. Mr Gunner has claimed that in 1956 he was forcibly removed by servants or agents of the respondent from Utopia Station and thereafter detained in St Mary’s Hostel in Alice Springs.
2. The opening statement in the closing submissions of counsel for the applicants laid out the base upon which these proceedings were fought:
These cases concern great injustice done by the Commonwealth of Australia to two of its citizens. By the actions of the Commonwealth, Lorna Cubillo and Peter Gunner were removed as young children from their families and communities. They were taken hundreds of kilometres from the countries of their birth. They were prevented from returning. They were made to live among strangers, in a strange place, in institutions which bore no resemblance to a home. They lost, by the actions of the Commonwealth, the chance to grow among the warmth of their own people, speaking their people’s languages and learning about their country. They suffered lasting psychiatric injury. They were treated as orphans when they were not orphans. They lost the culture and traditions of their families. Decades later, the Commonwealth of Australia says in this case that it did them no wrong at all.
3. Neither the evidence in this trial, nor these reasons for judgment, deny the existence of ‘the Stolen Generation’. But this trial has focused primarily on the personal histories of two people: Lorna Cubillo and Peter Gunner. Material was placed before the Court that addressed the policies of the Commonwealth Government since the turn of the 20th century. Ministerial statements and the writings of senior public servants and others were received into evidence on the same subject. However, whilst in no way diminishing their importance, it remains the fact that they were, for the most part, aids in the understanding of the personal circumstances of the two applicants.
...
65. The former practice of separating part Aboriginal children from their mothers has attracted Australia wide publicity, particularly as a result of the tabling in the Commonwealth Parliament on 26 May 1997 of the report of the Human Rights and Equal Opportunity Commission (the Commission) entitled Bringing Them Home ... However, the Commission’s terms of reference did not call for any inquiry into separations that were effected with the consent of a child’s family; nor did they require a consideration of cases where a neglected, destitute, sick or orphaned child might have been removed without the consent of the child’s parents or guardian.
...
74. It would not be proper for me, as a judge of this Court, to express a personal view about the call for a national apology.
...
79. For many people it is, at least, a matter of regret that, expressed in its most favourable terms, our ancestors might have misguidedly thought that it would be beneficial to the interests of part Aboriginal children to separate them from their families and to remove them into institutions. That, of course, is a matter of social conscience; it still remains to be seen whether that translates into a legal cause of action. ... The task of the Court is to examine the evidence — both oral and documentary — in a clinical manner, devoid of emotion ...
...
92. The subject of assimilation has loomed large in these proceedings. Assimilation was, in the 1940s, the 1950s and the 1960s, as it is now, a social and political issue. It is neither morally nor legally wrong of a person or of a Government to advocate or implement a policy that approves of or rejects the concept of assimilation. In so far as it may be possible to generalise, the most that can be said is that many interested and concerned people in former times favour assimilation but, today, the pendulum has swung back strongly in favour of the retention of Aboriginal tradition and lore. The changing swings and moods of social thinking have had a great effect on the presentation of the cases for the applicants and in the Commonwealth’s defense.
...
105. ... Historians may wish to adjudicate on the racial and 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.
...
128. In considering the claims that Mrs Cubillo has made against the Commonwealth, it will be necessary to consider, primarily, the provisions of the Aboriginals Ordinance 1918 (NT) (the Aboriginals Ordinance or the 1918 Ordinance). ... In the case of Mr Gunner, it will be necessary to have regard, not only to the provisions of the Aboriginals Ordinance, but also to the provisions of the Welfare Ordinance 1953 (NT) (the Welfare Ordinance).
...
133. Under s 6 of the 1918 Ordinance the Director was entitled at any time:
... to undertake the care, custody, or control of any aboriginal or half caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half caste for him to do so, and for that purpose may enter any premises where the aboriginal or half caste is or is supposed to be, and may take him into his custody.
...
143. 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 removed by the Director from that place to another like place. It was a provision of a different kind to the provision of s 6.
144. The powers of the Director under the 1918 Ordinance were exceptionally wide. He was the legal guardian of every Aboriginal: s 7 and his extensive powers under s 6 of the Ordinance enabled him to enter upon premises without a warrant and to take the person into custody ...
...
151. 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 of St Mary’s Hostel. ...
...
162. The case for the applicants, as submitted by Ms Richards during the course of final submissions, was that, initially, there had been a policy which she called ‘the removal policy’ or ‘the half caste policy’. It was submitted that it related only to half-caste children and was, as such, based on race; it was not concerned with welfare. It was further submitted that ‘the assimilation policy’ only really started in the 1950s and that it applied to both part Aboriginal and Aboriginal people. I cannot agree with either of these propositions. Although the word ‘assimilation’ may not have become part of the vocabulary until the 1950s, the writings that I will identify show that ‘assimilation’, in the sense of integration, operated from the early days of the 20th century. Furthermore, integration of part Aboriginal children was not based on race; it was based on a sense of responsibility — perhaps misguided and paternalistic — for those children who had been deserted by their white fathers and who were living in tribal conditions with their Aboriginal mothers. ...
163. ... The decision of the High Court in Namatjira v Raabe [(1959) [1959] HCA 13; 100 CLR 664] was referred to with apparent approval by both Toohey J (at 77) and Gummow J (at 151) in Kruger [v the Commonwealth [1997] HCA 27; (1997) 190 CLR 1].
164. I believe that these decisions of the High Court have established that the Aboriginals Ordinance and the Welfare Ordinance are not to be regarded as examples of punitive legislation. Rather, they were intended to be items of welfare or caring legislation. That conclusion does not, however, address the further questions — how was the legislation implemented? What policy or policies guided that implementation? They are the questions that are central to this litigation.
165. In resolving the issues in this case, there are two important factors that must be considered. Although they are, to a degree, inter-related, they nevertheless require independent consideration. The first of those factors is to inquire whether there ever was a policy of the Commonwealth that called for the removal of part Aboriginal children from their environment and their placement in homes, orphanages, missions or institutions. ...
166. The circumstances of their removals and detentions is the second factor; although it may be proved that some policy existed, that does not thereby mean that the policy was implemented in respect of the young Lorna and the young Peter. ...
...
200. The extracts from the documents that have thus far been identified are sufficient, in my opinion, to justify a conclusion that the Commonwealth Government had, since about 1911, pursued a policy of removing some part Aboriginal children and placing them in institutions in Alice Springs and Darwin. The material is not sufficient to sustain a finding that this policy applied to all part Aboriginal children. On the contrary, it would seem that it did not have such a general application. The probabilities are that the policy was intended for those illegitimate part Aboriginal children who were living in tribal conditions whose mother was a full blood Aborigine and whose father was a white man. ...
201. By the time of the removal of the children from Phillip Creek in 1947 to the Retta Dixon Home, a perceptible change in attitude to the policy of removing part Aboriginal children from their families had started to develop. ...
...
240. ...In summary, my assessment of the position in April 1952 is as follows:
...
242. Having been circulated in May 1952, the 1952 principles preceded Mr Gunner’s removal from Utopia Station in 1956 but Mrs Cubillo had been taken to the Retta Dixon Home long before, in 1947.
...
244. The contents of the 1952 policy are of importance to both these claims, but they are not an immediate answer to either of them. Without in any way seeking to diminish their effect, it must be remembered that the critical exercises are to investigate the individual circumstances of each applicant. ...
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259. The introduction of the Welfare Ordinance and the repeal of the Aboriginals Ordinance in May 1957 brought about significant changes. Under the later Ordinance, the Director’s powers were directed towards the care of wards; but, unless a part Aboriginal child had been declared a ward or committed by a court to the care of the State Children’s Council, the Director of Welfare had no power to remove a child without the consent of the mother. ...
...
276. The applicants did not submit that ‘the removal policy’ was an unlawful policy; they did not argue that it was a policy that was not authorised by the Aboriginals Ordinance. Their submission was that the adoption of ‘the removal policy’ led to unlawful results; that is, they said that the applicants were challenging the implementation of the policy as distinct from the policy. They conceded that there may have been cases where the power could have been exercised lawfully, but, so they claimed, if the power was only exercised for the purpose of the implementation of the policy, without considering the true interests of the child, then it would have led to an unlawful exercise of the Director’s powers.
...
300. ... one can ... feel satisfied that the number of such children far exceeded the ability of the Commonwealth to implement a policy of indiscriminate removal irrespective of the personal circumstances of the child. ... The applicants have not, in my opinion, produced the evidence that would substantiate a finding that there was a ‘general policy of removal and detention’ as alleged in their pleadings.
...
345. The Commonwealth has asserted that three of the allegations that have been made by the applicants are of the gravest and most serious kind. It claimed that in each case the applicants should be called upon to adduce clear and cogent proof as required by the Briginshaw test [Briginshaw v Briginshaw (1938) 60 CLR336]. ...
...
348. [The first allegation concerned] the alleged policies of the Commonwealth with respect to part Aboriginal children. As to this, the Commonwealth said that it has been accused of pursuing a policy of forcibly separating part Aboriginal children from their parents. ... to allege, as both applicants alleged, that they were forcibly removed against their wishes and the wishes of their family without just cause is a most serious accusation. The gravity of the accusation is self-evident. It is hard to imagine conduct that would have been more cruel or more callous. The applicants, by their pleadings, have, in my opinion, lifted this particular issue to the level of Briginshaw by claiming that the Commonwealth treated them with contumelious disregard ...
...
352. In my opinion, it is incumbent on the applicants to meet the Briginshaw test with respect to the allegations that have been made about the conduct of Mr Walter and the conduct of Mr Constable.
...
392. There are no documents from the files of the Native Affairs Branch or the Retta Dixon Home dealing specifically with the removal of Lorna Nelson from Philip Creek or her admission to the Home. However, six years after her admission, on 18 August 1953, a committal order (‘the committal order’) was made by Mr McCaffrey, the Acting Director of Native Affairs, acting under ss 6 and 16 of the Aboriginals Ordinance. Under it, he committed Lorna ‘to the custody of the Retta Dixon Home, Darwin until 8 August 1956’, her 18th birthday. No contemporaneous documents were tendered in evidence that would show on what basis Lorna was admitted to the Retta Dixon Home or on what basis she lived there prior to the making of the committal order; nor have any such documents been found that show whether the Director of Native Affairs asserted or exercised any coercive power in relation to Lorna’s admission to the Retta Dixon Home.
...
505. The onus rested on Mrs Cubillo to establish that the Director did not act in the manner permitted by s 6; she must satisfy the Court that the Director either did not form any opinion or that the opinion that he did form was either so unreasonable that no reasonable person could have formed it or, at least, that it could not be said that he believed that her removal was necessary or desirable in her interests. ...
...
511. The conclusion that I have reached is that Lorna Nelson Napanangka was removed from the Phillip Creek Native Settlement and was taken to the Retta Dixon Home as part of a joint exercise that involved both the Aborigines Inland Mission and the Native Affairs Branch. However, I further hold that Mrs Cubillo has failed to establish that she was, at that time, in the care of an adult Aboriginal person ... whose consent to her removal was not obtained. I also find that Mrs Cubillo failed to prove that the Director did not form the opinion that was referred to in s 6 of the 1918 Ordinance.
...
514. On 17 December 1947, the Administrator of the Northern Territory, Mr Driver, declared the Retta Dixon Home an Aboriginal institution under the Aboriginals Ordinance. On the same day, Miss Amelia Shankelton was appointed as the founding Superintendent of the Home. She remained the Superintendent during the whole of the period in which Lorna Nelson resided in the Home. ...
515. In her day to day management of the Retta Dixon Home, Miss Shankelton reported to the Director of the Aborigines Inland Mission. ...
...
543. Mrs Cubillo’s story of her time at the Retta Dixon Home was a story of loneliness, hardship and cruelty. From the time of her arrival until the time she left, she found it difficult to find anything good to say about the Home. ...
544. Mrs Cubillo described herself at the Retta Dixon Home as ‘a child wanting some affection’. She said, ‘I was never hugged in my life in the Home.’ ...
...
549. The manner in which the missionaries taught the children about religion upset Mrs Cubillo. She said that religion was ‘first and foremost’ in her upbringing at Retta Dixon Home. ... She said that she was taught that her Aboriginal rituals and traditions were ‘associated with the devil’ and that people who practised rituals and corroborees ‘were doomed to the ever-lasting fire of hell’. She said that those teachings disturbed her because her grandmother and others whom she loved and who had died ‘were possibly doomed to the ever-lasting fire’. ...
...
588. Mrs Cubillo claimed that [staff] ... had punished her by hitting her with a strap. ... Mrs Cubillo said that at the Retta Dixon Home the children were not permitted to speak their native tongue. She said, ‘we had our language flogged out of us.’ ...
...
592. I am satisfied that discipline at the Retta Dixon Home was, on today’s standards, very severe. ...
593. ... I am prepared to accept that the children were punished for speaking their native tongue; however, I am not prepared to apply the word ‘flogged’ as being descriptive of that punishment.
...
728. Under cross-examination Mrs Cubillo became progressively defensive, evasive and argumentative. ...
729. In some respects she created an unfavourable impression, causing me to have doubts about some — but by no means all — of her evidence. I am satisfied, for example, that she was the victim of a severe beating at the hands of Mr Walter — and that he used the buckle end of his belt; that the beating was so severe, that it drew blood. That would be intolerable conduct today and it would have been intolerable at the time when it occurred. I am satisfied that Mr Walter placed his hand on the upper part of her leg when they were in the car. That was improper conduct — then and now. I am also satisfied that Mrs Cubillo was unhappy at the Retta Dixon Home; she pined for her family — she felt unloved and unwanted. However, I cannot say that this was the fault of Miss Shankelton and the other missionaries. It was, more likely, the result of Lorna’s personality and character.
730. Mrs Cubillo is a woman of above average intelligence. Her history has shown that she is also a woman of great determination and courage. On the other hand, she has suffered tragically throughout her life. ... Is it any wonder that a person who has suffered such hardship and misery would lash out in search of those responsible? Mrs Cubillo has, understandably, built up a tremendous sense of grievance and the litigious process has turned that sense of grievance against the Commonwealth to the exclusion of all others.
...
735. I have already stated my reasons for concluding that I accept Mrs Cubillo’s allegations against Mr Walter. He had the opportunity to attend Court and to put forth his versions of the events and he did so. It so happened that I did not accept that part of his evidence. However, Miss Shankelton has died; she was not able to defend herself against Mrs Cubillo’s accusations of coldness and harsh discipline. ... Having regard to the supportive evidence that was forthcoming from [some] ... witnesses, it would be most unfair to the memory of Miss Shankelton to accept Mrs Cubillo’s evidence and now make adverse findings about the way in which Miss Shankelton conducted herself and managed the Retta Dixon Home.
736. The absence of all the witnesses represents, in totality, a gap of enormous dimensions; it is a gap that is so huge that it means that the Court has not been able to make numerous findings of fact that would have otherwise had a significant bearing on Mrs Cubillo’s claim. ...
...
...
743. St Mary’s Hostel, at Alice Springs, was established by Sister Eileen Heath in 1946 ... It was a hostel where children from outlying areas could live whilst they attended school.
744 St Mary’s was acquired by the Australian Board of Missions, an Anglican Mission organisation, shortly after the end of the Second World War. ... [In] 1946, the Administrator of the Northern Territory ... granted St Mary’s Church of England Hostel ... a licence under s 13 of the Aboriginals Ordinance to be ‘an Aboriginal Institution for the maintenance, custody and care of aboriginals and half-castes’.
...
781. ... The attached report contained a brief summary of relevant facts and concluded with the recommendation of the Acting District Welfare Officer. He wrote:
I am of the opinion for the reasons given above, it is in the best interests of Peter Gunner that he be admitted to St. Mary’s Hostel and accordingly require your approval. His birth is being registered in the name stated above.
782. The reference to ‘the reasons given above’ was not very illuminating. They were to the effect that Peter and his mother were living in a native camp; his father was said to be unknown and to have left the district; Topsy ‘has agreed to allow’ Peter to be admitted to St Mary’s Hostel; and Peter ‘appears to be bright’. Neither the request nor the report refer to it, but there was a further document entitled ‘Form of Consent by a Parent’. It was couched in very formal language and some might think that it would be difficult to understand how its contents could have been accurately translated to an Aboriginal mother who spoke no English. It does however contain a mark which purports to be a thumb or finger print surrounded by the typed words ‘Topsy her mark Kundrilba’. The body of the document read as follows:
I, TOPSY KUNDRILBA being a full-blood Aboriginal (female) within the meaning of the Aboriginals Ordinance 1918-1953 of the Northern Territory, and residing at UTOPIA STATION do hereby request the DIRECTOR OF NATIVE AFFAIRS to declare my son PETER GUNNER aged seven (7) years, to be an Aboriginal within the meaning and for the purposes of the said Aboriginals Ordinance. MY reasons for requesting this action by the Director of Native Affairs are:
1. My son is a Part-European blood, his father being a European.
2. I desire my son to be educated and trained in accordance with accepted European standards, to which he is entitled by reason of his caste.
3. I am unable myself to provide the means by which my son may derive the benefits of a standard European education.
4. By placing my son in the care, custody and control of the Director of Native Affairs, the facilities of a standard education will be made available to him by admission to St Mary’s Church of England Hostel at Alice Springs.
...
787 ... The line of documents that were compiled in the Native Affairs Branch favours a positive conclusion that Topsy gave her informed consent to her son going to St Mary’s. On the balance of probabilities that is the conclusion at which I have arrived.
788 In coming to that conclusion, I am aware that there was no way of knowing whether the thumb mark on the ‘Form of Consent’ was Topsy’s; even on the assumption that it was, there was no way of knowing whether Topsy understood the contents of the document. But it is not beyond the realms of imagination to find that it was possible for a dedicated, well-meaning patrol officer to explain to a tribal Aboriginal such as Topsy the meaning and effect of the document.
...
793 Peter Gunner was admitted to St Mary’s on 24 May 1956 ...
...
907. After questioning Mr Constable about the quality of the children’s clothing, the following passage appeared in his evidence in chief:
In terms of personal hygiene, what arrangements were made in respect of the children? — We ourselves, the staff, were responsible for it.
Yes, and was there some daily process? — Yes, there was.
What was that? — With the boys, the washing of their penis (sic) to remove the smegma.
That was the end of the questioning in evidence in chief on the subject of smegma. The subject was, however, taken up in detail in cross-examination. ...
... you would apply glycerine to their penises, would you? — Yes.
Why? — To soften the smegma. ...
I suggest to you that is entirely inappropriate behaviour? I put to you, Mr Constable, I’ll put it quite fairly and squarely to you it’s sexual misconduct of a very dangerous kind? — I don’t agree.
It’s totally inappropriate? — I don’t agree. ...
...
994. I conclude that there was sexual misconduct by Mr Constable.
...
1073. The evidence of Mr Gunner and others of children searching for food in rubbish bins and dumps, the lack of social contact with children outside the Hostel, the failure to return him to his family during school holidays, the shocking conditions of the Hostel as depicted in the reports from Mrs Ballagh and others, the quality of its staff and the conduct of Mr Constable add up to a damning indictment of St Mary’s. ...
...
1075. ... Like Retta Dixon, I am satisfied that severe corporal punishment was administered at St Mary’s but I cannot make a finding that it was excessive on the standards of the day. ...
...
...
1086. ... It was not disputed that patrol officers, welfare officers and other employees of the Native Affairs Branch and the Welfare Branch were all employees 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 any vesting of power in the Commonwealth. I am satisfied that each of the relevant Directors was a member of the Commonwealth Public Service and an officer of the Commonwealth.
1087. What is in issue is whether the Commonwealth carries a vicarious liability for their acts or omissions. There are, in my view, two important issues that have to be determined in this aspect of the case. The first is determining the status of the Directors under the Aboriginals Ordinance and, subsequently, the Welfare Ordinance. The second, dependent upon the first, is whether the Commonwealth was, in fact, vicariously liable for their acts and omissions.
1088. The basic principle in tort law is that an employer is liable for the damage caused by the negligent acts or omissions of its servants when they are acting within the scope of their employment. The Commonwealth of Australia as an employer is open to claims of vicarious liability in relation to acts committed by a servant or employee in the course of his or her employment. Accordingly, the Commonwealth will be vicariously liable where the Crown employee was acting within the de facto authority of the Crown: James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 359-360 and where the employee was impliedly authorised to commit the particular tortious act: Racz v Home Office [1994] 2 AC 45 at 50-54. However, the Commonwealth will not be vicariously liable if the law charged an employee with a discretion and a responsibility in the execution of an independent legal duty. This is commonly referred to as the independent discretion rule. ...
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1115. The independent discretion has been subjected to much criticism, but it still remains the law. ...
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1118. In determining whether vicarious liability exists in a situation where a Commonwealth officer has had some duties conferred on him, it will always be a question of construing the statute as a whole and, indeed, construing the statute in the statutory scheme of which it forms part. In the present proceedings, the issue of vicarious liability, in the context of the Directors, is a question that turns on the construction of the particular Ordinance coupled with a consideration of the particular status of the public employee who was involved in the implementation of its terms: Baume v Commonwealth per O’Connor J at 123. The question whether or not the independent discretion rule would apply so as to exempt the Commonwealth from liability will also turn on an examination of what was said to be the statutory duty involved.
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1122. I have come to the conclusion that no vicarious liability would have attached to the Commonwealth as a result of Lorna Nelson being removed from Phillip Creek and taken to the Retta Dixon Home if that removal was effected by the Director in accordance with the provisions that were contained in s 6 of the Aboriginals Ordinance. I would have also come to the same conclusion if Peter Gunner had been removed from Utopia Station and taken to St Mary’s Hostel in accordance with the provisions of s 6. ...
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1130. I cannot accept that, in the formulation of an opinion under s 6, the Director was, or was intended to be, the instrument of the Commonwealth in administering Aboriginal affairs in the Territory. I believe that there was a readily acceptable explanation for this position. It was reasonable that the Commonwealth would lay out, in legislative form, its policy with respect to Aboriginal and part Aboriginal people in the Northern Territory and expect its representatives to implement that policy. But when it came to taking a child into custody, that same policy demanded that individual consideration be given to the personal circumstances of each child. The framers of the legislation realised that the individual welfare of a human being could not be encapsulated in words on a piece of paper. Hence, in that limited area, the legislature was prepared to entrust the ultimate decision to its senior public servant in the Native Affairs Branch. The same concept, expressed in quite different terms can be found in the Welfare Ordinance. ...
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1132. ... I have come to the conclusion that when a Director of Native Affairs or a Director of Welfare acted under s 6 of the Aboriginals Ordinance or s 17 of the Welfare Ordinance to remove a part Aboriginal child from his or her family and place that child in an institution such as the Retta Dixon Home or St Mary’s Hostel, the Director was acting independently, free of any control by the Commonwealth. The Commonwealth would not, therefore, have been vicariously responsible for the actions of the Directors. The Directors who held office at the time of the removal and detention of Lorna and Peter would have been, in each case, fulfilling a responsibility that was cast on them by the law. If the conduct of Mr Moy, through his delegate, Mr Penhall, amounted to him undertaking the care, custody or control of Lorna Nelson and if, contrary to my finding, Mr Giese, through his delegate, Mr Kitching, undertook the care, custody or control of Peter Gunner, then I am of the opinion that both men were acting within the umbrella of ‘the independent discretion rule’. I believe that the remarks of Dixon J in Attorney-General (NSW) v Perpetual Trustee Co Ltd [1952] HCA 2; (1952) 85 CLR 237 at 249 apply to the provisions of s 6 of the 1918 Ordinance and to the Directors’ actions under that section:
No one has yet denied that the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him.
1133. The conclusions that I have reached can be summarised in these terms:
As to Lorna Cubillo;
As to Peter Gunner;
...
1145. The applicants presented their final submissions on the premise that they were not attacking Commonwealth policy itself as being unlawful or beyond power or adopted with some improper or nefarious purpose. They limited themselves to complaining about the application of the Commonwealth’s policy to them. The applicants submitted that there were four identifiable purposes behind the Commonwealth’s policy for the removal of part Aboriginal children. The first of these was said to be the destruction of the child’s association and connection with the child’s Aboriginal mother, family and culture. ...
1146. The second purpose of the policy, according to the applicants’ submission, was to assimilate part Aboriginal children into non Aboriginal society. I agree that such a purpose existed. ...
1147. The third purpose of the removal policy was, according to the applicants’ submission, to provide domestic and manual labour for the European community. Expressed in that pejorative manner, such conduct would seem to most people to be highly offensive and probably racist. ... [F]or many part Aboriginal children and adults, domestic and manual labour were possibly the only forms of employment that were available to them. ...
1148. The fourth and last purpose for the removal policy, as identified by the applicants, was said to be to ‘breed out ‘half-caste’ Aboriginal people and protect the primacy of the Anglo-Saxon community’. That must be rejected. ...
...
1150. 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 she was removed and detained by the Director of Native Affairs and that her removal and detention was unlawful and beyond the powers conferred by ss 6 and 16 of the 1918 Ordinance. In Mr Gunner’s case, that same plea was made ... It was sufficient for the applicants to plead unlawful removals and detentions; the onus was then on the Commonwealth to refute those allegations. In Myer Stores Ltd v Soo [1991] VicRp 97; [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), and adopted that Court’s statement of principle with respect to the action for false imprisonment where it said:
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.
See also Watson v Marshall & Cade [1971] HCA 33; (1971) 124 CLR 621 at 626 per Walsh J. The decision in Myer Stores Ltd v Soo was followed by the New South Wales Court of Appeal a few years later in Spautz v Butterworth (1996) 41 NSWLR 1 at 26 per Clarke JA (with whom Priestley and Beazley JJA agreed).
...
1156. Section 16 of the Aboriginals Ordinance gave a discretionary power to the Director of Native Affairs; it entitled him to cause ‘any aboriginal or half-caste’ to be kept within the boundaries of an Aboriginal institution. The exercise of that discretionary power was not conditional: the Director, for example, did not have to form the opinion that his action was in the best interests of the child. ... In my opinion s 16 offered total protection to the Director and to the Commonwealth.
...
1158. Whilst it was not pleaded that the Commonwealth placed or held either applicant in custody, it was argued that the Commonwealth promoted or caused their detention. ...
1159. The applicants have pleaded that the Commonwealth had a policy that called for the removal of part Aboriginal children without regard to their individual circumstances. Using the purported existence of such a policy as a lynch-pin, the applicants have then argued that that policy was imposed by the Commonwealth on those who were responsible for the administration and implementation of the legislative schemes ...
1160. That submission suffered from a lack of support from the documentary evidence. ... there was nothing in any of the writings that would justify a finding that all part Aboriginal children had to be removed or that all illegitimate part Aboriginal children had to be removed or that all illegitimate part Aboriginal children living in native camps had to be removed. Then, if one moves from ‘policy’ to ‘implementation of policy’, the evidence failed to establish that there even was, at any time, activity on such a scale that it could be said that a general policy of removal was then being enforced ...
...
1167. I have come to the conclusion that the applicants have each failed to establish that they have a cause of action against the Commonwealth for false imprisonment. I do not accept that the Commonwealth actively promoted or caused the imprisonments; the evidence does not justify such a finding. The Director of Native Affairs was entitled, as a matter of law, to undertake ‘the care, custody or control’ of a part Aboriginal child; hence the removal of Lorna Nelson from Phillip Creek and the removal of Peter Gunner from Utopia (if contrary to my finding, the Director was legally involved in his removal) could have been lawful exercises of a statutory power unless the Court concluded that the Directors, in so acting, did so without first forming the opinion that it was ‘necessary or desirable in the interests’ of the child to do so. This makes the evidence of the Directors, particularly that of Mr Moy, vital for a proper consideration of the merits of the applicants’ claims. Since neither Director is available, the Court is denied the opportunity of hearing what opinions (if any) they formed, for what reasons they formed them and on what information they formed those opinions. The absence of evidence on these subjects reflects back adversely on the applicants’ attempts to prove that the Commonwealth directly participated in or promoted their imprisonment. There remains the question of the Commonwealth’s vicarious liability. I have already decided that the utilisation by a Director of his or her power under s 6 of the Aboriginals Ordinance cannot attract vicarious liability. However, in the unusual circumstances of Mrs Cubillo’s claim, I have no way of knowing why Mr Moy participated in her removal and detention. If it was because he invoked his s 6 powers, then the Commonwealth is not vicariously liable for his conduct. However, if it was for some other reason then, depending on what power he purported to use, the Commonwealth might be at risk of being vicariously responsible for the Director’s conduct. The same difficulty arises with respect to Mr Gunner. If I am wrong in finding that the Director of Native Affairs did not participate in his removal from Utopia, the same question might arise. Under what power did the Director purport to act? The answer to that question — if it is not
s 6 — might lead to a finding of vicarious liability.
1168. The applicants need an extension of time within which to prosecute their claims for false imprisonment. The prejudice to the Commonwealth that would arise if that extension were granted is obvious. If the Commonwealth is vicariously liable for the conduct of its Directors it would be deprived of the opportunity to have their evidence; it would also be deprived of Miss Shankelton’s evidence. Finally, age and frailty have impaired the quality of the evidence of Mr Kitching and Mrs McLeod. I consider, at a later stage in these reasons whether the prejudice to the Commonwealth is sufficient to deny the applicants their extensions of time.
...
1175. The submissions that were made on behalf of the applicants with respect to the allegations that the Commonwealth had breached its statutory duties to the applicants were confusing. ...
...
1179. Although there is no cause of action for breach of a statutory duty unless the statute confers a right on the injured person to recover compensation for its breach: Northern Territory v Mengel (1995) 185 CLR 307 — and there is no express provision for civil recovery in either Ordinance — such a right may arise by implication. ...
...
1182. It seems clear from the authorities that the cases in which an actionable breach of statutory duty can be implied are rare. In X (Minors) v Bedfordshire County Council [1995] UKHL 9; (1995) 2 AC 633 (‘X (Minors)’), Lord Browne-Wilkinson said at 731:
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.
Gummow J said the same thing in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 167 ALR 1 (‘Crimmins’) at 40:
the legislation will rarely yield the necessary implication positively giving a civil remedy.
...
1184. 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) 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.
...
1192. ... I have come to the conclusion that neither applicant has established a breach of statutory duty on the part of any Director. ...
...
1194. The applicants have submitted that the Commonwealth undertook and accepted responsibility for part aboriginal children. That is a proposition that is too sweeping; the evidence did not suggest that any policy at any time reached out and embraced all part Aboriginal children. However, the case for the applicants can and should be considered upon the premise that, in removing and detaining any part Aboriginal child, the Commonwealth arguably undertook and accepted responsibility for that part Aboriginal child. ...
...
1198. It would be unjust to impose a duty of care upon the Commonwealth where it had no statutory power to act nor any power to direct others to act. It had no power, for example, to require that the Director place a particular person in an institution. It had no power to require the Director, or any other person, to remove a child from an institution. Its capacity to intervene was essentially limited to legislative change, withdrawal of funding and to the formulation of general policies. As McHugh J emphasised in Crimmins, the respondent must be in a position of control and under a statutory obligation, or at least have specific power, to protect the plaintiff from the danger. The Commonwealth did not have that control: nor did it have that power.
...
1200. The applicants have claimed that their removals and detentions, involving both negligent conduct as well as failures to act, were in breach of the duty of care that the Commonwealth owed to each of them. ...
1201. To establish the tort of negligence, the applicants must prove the facts that establish that the Commonwealth owed a duty of care towards them, that the Commonwealth was negligent in breaching that duty and that the breach caused damage to the applicants that was not, in law, too remote a consequence of the negligence. ...
...
1222. O’Loughlin J reviewed Barrett v Enflield London Borough Council [1999] UKHL 25; [1999] 3 All ER 193 and the remarks of Lord Browne-Wilkinson in X (Minors).
...
1228. I turn now to the Australian authorities and the decision in Crimmins. ...
...
1230. ... McHugh J in Crimmins, after quoting the passage from the judgment of Mason J in Sutherland Shire Council v Heyman [(1985) [1985] HCA 41; 157 CLR 424], discussed the decision of the House of Lords in X (Minors). His Honour said:
In my opinion ... in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (for example, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.
... Applying these questions and this dicta to the Commonwealth (as distinct from the Directors) the first two questions and the fourth question must be answered in the negative. There was no act or omission by the Commonwealth; the Commonwealth was not invested with the power of removal and detention. The applicants’ interests were vulnerable but it has not been established that the Commonwealth knew of the risk of harm to the applicants. ... The welfare nature of the policy as found in the Aboriginals Ordinance, the difficulties through distance, remoteness, language and contrasting cultures in implementing the policy together with the subjective views of a Director in forming an opinion about what was necessary or desirable in the interests of a particular child do not favour the imposition of any duty.
...
1236. It is arguable that the Directors’ powers and functions under the legislation were so great that it could only lead to the conclusion that the Directors were under a duty of care to the applicants. ... There are, however, factors that militate against such a conclusion.
1237. I turn to a consideration of Lord Browne-Wilkinson’s counter-considerations and Lord Hutton’s commentary on them for the purpose of determining whether, and to what extent, they may affect the outcome of these present proceedings. The first of those counter-considerations was the question of a legislative scheme. Although the legislative scheme in the Aboriginals Ordinance did not call for the involvement of other participating bodies, nevertheless, s 6 of the Ordinance placed an inordinately heavy responsibility on the shoulders of the Director. In the cases of neglect, destitution and, worse, risk of bodily harm and even death, the Director had to be free to act quickly and, perhaps, spontaneously. In such a climate, there were bound to be mistakes from time to time. But they would be mistakes that were made with the interests of the child in the forefront of the Director’s consideration. The second consideration also applied here: to remove a child from his or her mother would always be ‘an extraordinarily delicate one’. Some of the writings that I have identified show the interest and concern that some patrol officers took when they were required to consider the welfare of a child. The third consideration would have applied to the Director of Native Affairs; the risk of litigation would have had the potential to have the Director and the Branch’s officers ‘adopt a more cautious and defensive approach.’ ...
1238. Both applicants alleged, in extensive detail, breaches of a common law duty of care. ...
...
1245. The power of removal and detention was available in each case to the Director of Native Affairs by virtue of the provisions of ss 6 and 16 of the Aboriginals Ordinance. The power could have been misapplied if the Director failed to have regard to the requirement in s 6 ... However, I have come to the conclusion, in each case, that they have failed to reach the required evidentiary onus. ...
...
1247. I move then [to] ... a consideration of the general conditions of the two institutions. ...
1248 ... I do not think that either Director failed to supervise and I do not think that the Director of Native Affairs failed to regulate the Retta Dixon Home. I do think, however, that the Director of Native Affairs and the Director of Welfare did not take appropriate action about the condition of St Mary’s.
...
1250. Even then, the question remains: what damage or loss did either of the applicants suffer from the alleged failure of the Director to supervise the institution adequately? Mrs Cubillo’s loneliness and despair came from her detention — not from the inadequacies that existed at Retta Dixon. Her claim that there was no love and affection was challenged by the evidence of others, particularly Mrs Treloar and Sister Johnson. I am sure that Mrs Cubillo felt a lack of love and affection but I am not sure that she was justified. I do not consider that either applicant has been able to point to loss or damage that flowed from the conditions of the institutions.
1251. I turn now to consider the serious assaults that were committed by Mr Walter and Mr Constable. ...
...
1255. Neither in the case of Mrs Cubillo nor in the case of Mr Gunner did the Commonwealth or the Director know of the assault. Indeed, both applicants conceded that they told no one in authority of the incidents. Actual knowledge of conduct, or of predilection to such conduct, has not been proved and in neither case were the circumstances such that it could be said that either the Director or Commonwealth ought to have known of the assaults or of the assailants’ propensities to commit the assaults. ...
1256. The conclusion that I have reached is that there was no common law duty of care imposed on the Director. ... In Hahn v Conley [1971] HCA 56; (1971) 126 CLR 276, the High Court held that no duty of care arose merely from the fact that a child was in the care and custody of his grandfather. Barwick CJ said at 283-284:
the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. ...
I consider that I should apply these remarks in preference to the views of Lord Hutton in Barrett.
...
1269. In summary form, I have reached the following conclusions:
1270. In pursuing their claims that fiduciary relationships existed and that there had been breaches of fiduciary duties, the applicants relied, essentially, on the same evidence upon which they based their claims that there had been breaches of duties of care. They pursued their claims from three directions. First, they alleged the existence of a fiduciary relationship between each of them and the Commonwealth. Next, they alleged the existence of a fiduciary relationship between each of them and the Directors claiming that the Commonwealth had a vicarious liability for the Directors’ breaches of their fiduciary duties. Finally, they claimed that the Commonwealth knowingly participated in the Directors’ breaches of their fiduciary duties.
...
1276. 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.
...
1284. Circumstances that may give rise to the creation of a fiduciary relationship include such matters as inequality of bargaining power, an undertaking to act in the interests of another person, an ability to exercise a power or a discretion that may affect the rights of another and issues of dependency and vulnerability. ...
...
1286. The High Court, in Northern Land Council v Commonwealth of Australia [(1987) [1987] HCA 52; 75 ALR 210] was of the view that the question whether there was a fiduciary relationship was a question of fact to be resolved at trial. ... Referring to Hospital Products v United States Surgical Corporation [(1984) [1984] HCA 64; 156 CLR 41] 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 at 215:
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.
1287. In support of their contention in the present proceedings 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’. ...
...
1302. In para 20 of [her] particulars, Mrs Cubillo alleged that the stated interests of the Commonwealth conflicted with its duties:
As for the Director of Native Affairs, Mrs Cubillo pleaded that he had, in complying with the Commonwealth’s ‘requirement’ that he act ‘in accordance with a policy of removal and detention of ‘half-caste’ children ... conflicted with her interests in the same manner as had the Commonwealth. ...
1303. Save that he referred to the provisions of the Welfare Ordinance Mr Gunner supplied virtually the same particulars.
...
1307. It would appear to be inappropriate for a judge at first instance to expand the range of the fiduciary relationship so that it extends, as would be the case here, to a claimed conflict of interests where the conflict did not include an economic aspect. I am persuaded to come to that conclusion for the following reasons:
In short, the applicants have not established to my satisfaction that, if they were in a fiduciary relationship with either the Commonwealth or the Directors, there was any breach of that relationship.
1308. Counsel for the applicants acknowledged in his final submissions that the evidence has established that the limitation periods for each of the applicants’ causes of action in tort have expired. Hence, both applicants have sought extensions of time for the institution and prosecution of their respective proceedings pursuant to s 44 of the Limitation Act 1981 (NT) ...
...
1420. ... [T]he case for the Commonwealth was dominated, in my opinion, by the claim that it has suffered irreparable prejudice through the absence of material witnesses and the infirmities of others. In short, the case for the Commonwealth was that so much time has gone by and so many material witnesses are now dead that it was not possible for the Commonwealth to present its defence adequately. The strength of the Commonwealth’s claims, based on the decisions in Brisbane South Regional Health Authority v Taylor [(1996) [1996] HCA 25; 186 CLR 541] and Paramasivam v Flynn, is, in my opinion, overwhelming. ...
1421. Were it not for the irremediable prejudice that the Commonwealth would suffer, there would be much that could be said in Mrs Cubillo’s favour:
...
1425. ... In the case of Mr Gunner, the Commonwealth was on firmer ground. ...
1426. The Commonwealth contends that the applicants’ claims for equitable compensation for breach of fiduciary duty are barred by analogy to the barring by statute of their common law claims as well as by the equitable defence of laches. ...
...
1434. Viewing both applicants’ claims on the most favourable basis, I would decline to exercise my discretion in their favour; I would not extend time for bringing their common law claims and on the principle of laches, I would bar their claims for equitable relief.
...
1486. Even though I have come to the conclusion that Mrs Cubillo’s action must be dismissed, I do not think that my work is done. In the event that there is an appeal and an Appeal Court, contrary to my views, believes that Mrs Cubillo has a sustainable cause of action, it will be necessary to engage in the exercise of an assessment of damages. That same exercise must be carried out for Mr Gunner. ...
...
1488. Both applicants have claimed that they have suffered as a result of the alleged unlawful conduct of the Commonwealth. In advancing their claims, they have laid great emphasis on their loss of their Aboriginality — that is, their loss of their Aboriginal language, culture and way of life. I have accepted that each applicant sustained and continues to suffer a psychiatric injury as a consequence of their removals and detentions in the institutions. On the basis that fault is found to lie at the feet of the Commonwealth, the applicants would thereby be entitled to an award of general damages for their pain and suffering and for their loss of enjoyment of life — past, present and future.
...
1491. The Commonwealth, if liable to either applicant in damages, will only be liable for damage ‘of such a kind as the reasonable man should have foreseen’: March v Stramare (E & H) Pty Ltd [1991] HCA 12; [1990-1991] 171 CLR 506 at 531 per McHugh J quoting from Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) [1961] UKPC 1; [1961] AC 388 at 426. ...
...
1493. In my opinion the acceptance of the evidence of Mrs Cubillo and Mr Gunner about their personal reactions to their removal and detentions, in combination with the acceptance of the medical evidence of their interviewing doctors, has created the causative link that is necessary to justify an award of damages against a tortfeasor. ...
...
1499. I do not think that it could be argued that the cultural loss that a part Aboriginal person has suffered does not sound in damages. Napaluma v Baker (1982) 29 SASR 192, Dixon v Davies (1982) 17 NTR 31 and Weston v Woodroffe (1985) 36 NTR 34 were all cases where the plaintiff, an Aboriginal person, was injured in a road accident. In each case, the nature of the injuries detrimentally affected the plaintiffs’ Aboriginal culture or was otherwise related to it and the assessment of damages reflected that fact. ...
...
1502. ... Mrs Cubillo has alleged that she has ‘lost the entitlements and other advantages associated with being recognised as a traditional owner of her traditional lands for the purposes of the Land Rights Act’. ... It is her case that had she not been removed and detained at the Retta Dixon Home at the instigation of the Commonwealth, she would have been recognised as a traditional owner of one or more or all of those lands.
1503. Mr Gunner has made similar claims ...
...
1506. It is well known and accepted that Aboriginal people have an immensely strong attachment to their land. ...
...
1512. In my opinion, both Mrs Cubillo and Mr Gunner have suffered compensable losses through not being regarded by other members of the Aboriginal community as traditional owners of the lands to which reference has been made in these reasons. However, those losses are not total; they are reversible. That has already begun to appear in the case of Mr Gunner. I accept that by being removed from their communities, they were, over a period of time, forgotten as potential traditional owners. That has meant that for some unspecified period neither of them enjoyed the status of recognition and consultation. Neither of them has proved any economic loss; but they have proved an entitlement to compensation as a result of being ignored as potential traditional owners. Any award would, however, be very modest, particularly in the case of Mrs Cubillo. She has made no attempt to change her lifestyle. In Mr Gunner’s case he has returned to Utopia and is making serious attempts to return to his former community. Unlike Mrs Cubillo, he has attempted to mitigate his damages.
...
1521. Mrs Cubillo and Mr Gunner were under an obligation to mitigate their damages. ...
1522. The applicants’ duty is to take all reasonable steps to mitigate his or her loss. ... The appropriate test is whether a reasonable person, in the circumstances as they existed for the applicant, and subject to various factors such as the applicant’s medical history and his or her psychiatric condition would have returned to their families sooner. Whether an applicant has acted reasonably or unreasonably in not taking steps which would operate to decrease his or her loss is a question of fact, not law, depending on the circumstances of their individual cases: British Westinghouse Electric Company Ltd v Underground Electric Railways Company Ltd [1912] AC 673 at 688-689; Payzu Ltd v Saunders [1919] 2 KB 581; and Sotiros Shipping Inc v Sameiet Solholt [1983] 1 Lloyd’s Rep 605.
1523. After the cessation of their detentions, the position changed. Each has made a very strong submission that their removal and detention cost them the loss of their Aboriginality, their culture and their family. Initially that was true. But what have they done to recoup those losses? In the case of Mr Gunner, he had done quite a lot by returning to Utopia, reuniting with his family and finding a substantial degree of acceptance. But even he could have done more if it had been his wish. ... Yet compared to Mr Gunner, Mrs Cubillo has done nothing. Apart from the few short visits to her family she has made no attempt to gain back any part of her Aboriginality. I accept her evidence about her feelings of shock and fear when she was removed; I accept her sadness that was caused by her detention while she was at the Retta Dixon Home; I also accept that she was cruelly beaten by Mr Walter. However, I do not accept her claims with respect to her continuing losses of her Aboriginality, family, and culture. I am prepared to allow her something for them for several years as a teenager and a young adult. However, as her children grew up, she could have, if she had wanted to, started to pick up aspects of her Aboriginal past.
...
1545. The awards of damages to which either of the applicants might have been entitled can only be assessed on a broad axe premise. ...
...
1547. On this basis I would have calculated Mrs Cubillo’s notional damages at $126,800 and Mr Gunner’s at $144,100.
...
1550. In pursuing their claim for exemplary damages the applicants have submitted that an award would be justified where the conduct of the Commonwealth, or, the conduct for which the Commonwealth was liable, was arrogant or disgraceful or where a person has been treated with a contumelious disregard for that person’s welfare or rights. However, as I have already indicated, I reject any submission that the impugned conduct can be so described.
...
1555. Even if, on appeal, it be found that the Commonwealth is liable to either one or both of the applicants for damages for any cause of action, I do not consider that either applicant has made out a case for exemplary damages.
1556. Each further amended statement of claim also referred to a claim for aggravated damages. I do not consider that the facts of these two cases would justify such an award. If it were to be found, contrary to the findings that I have made, that a cause of action exists giving rise to an award of damages, the most that could be said against the Commonwealth or the Directors was that there had been failures to act within the strict parameters of the legislation. It could not be said, on the evidence that was adduced in these proceedings, that either removal was motivated by ill-will or by disregard for the welfare or the interests of the child.
...
1560. The evidence that I have heard throughout this trial from the witnesses who were called by the Commonwealth has established to my satisfaction that there was a school of thought prevailing at the times that are relevant to the claims of Mrs Cubillo and Mr Gunner. At the forefront of that school of thought was the belief that it was in the best interests of part Aboriginal children to assimilate them into the European mainstream and that the best way to do that was through a Western style education. In pursuing that school of thought, those who were in authority concerned themselves only with the fact that the child was part white. Having made the decision to remove the child, there was a total disregard of the fact that the child was also part Aboriginal, of the fact that the child’s mother or family with whom the child was living was or were Aboriginal and of the fact that the child had been brought up only aware of Aboriginal culture and unaware of European culture. That was where those in authority stand condemned on today’s standards. Today most Australians realise that the Aboriginal people have a rich and diverse culture that is to be encouraged and preserved. However, the writings that were tendered in the trial and the oral evidence showed that such thinking was not the mainstream thinking of people in earlier times.
1561. The evidence showed that there were people in the 1940s and 1950s who cared for the Aboriginal people. I select, but only as examples of the people I have in mind, the witnesses Sister Eileen Heath and Mr Creed Lovegrove. However, their concern did not extend to the recognition of the Aboriginal culture and lifestyle; it was devoted to Western style welfare or religious issues and issues of concern for the physical or spiritual well-being of the people. That form of paternalism is not accepted today but it was accepted in the 1940s and the 1950s by many people and in particular by those who administered the Native Affairs Branch and the Welfare Branch in the Northern Territory in the period that covered the institutionalisation of both Mrs Cubillo and Mr Gunner.
1562. I have great sympathy for Mrs Cubillo, for Mr Gunner and for others who, like them, suffered so severely as a result of the actions of many men and women who thought of themselves as well meaning and well intentioned but who today would be characterised by many as badly misguided politicians and bureaucrats. Those people thought that they were acting in the best interests of the child. Subsequent events have shown that they were wrong. However, it is possible that they were acting pursuant to statutory powers or, perhaps in these two claims, it would be more accurate to say that the applicants have not proved that they acted beyond their powers.
1563. I am satisfied that the applicants in these proceedings have suffered the psychiatric illnesses that they have pleaded in their respective further amended statements of claim. For them to succeed against the Commonwealth, it would be necessary to prove actionable negligence or breach of some other duty; they could only do that by proving the commission of operational acts or omissions that were done negligently by the servants of the Commonwealth in the course of carrying out a policy decision that the Commonwealth had taken in relation to each applicant. The view that I have reached in respect of both Mrs Cubillo and Mr Gunner, is that their damages have flowed from the policy decisions — and those decisions are not actionable because it has not been shown that they were carried out within the ambit of the legislation. It was the removal and detention as distinct from the manner of the removal and the manner of the detention that were the causes of the injuries that each of them suffered. Although it is not an absolute test, a pure policy decision where Parliament has entrusted the decision to a public authority is not something a Court would normally be expected to review: Barrett at 211 per Lord Slynn.
1564. I reject any suggestion that either applicant is looking for a pot of litigation gold. I am satisfied that they have pursued their claims against the Commonwealth because they were advised by their advisers that they had claims that were justifiable. I have criticised many areas of Mrs Cubillo’s evidence and some areas of Mr Gunner’s but I accept the main thrust of their evidence about the hurt they suffered as a result of their removal and detention. However, at the end of the day I remain satisfied that the Commonwealth of Australia is not obliged, as a matter of fact and law, to compensate them for their losses.
1565. Each of the claims that have been made by Mrs Cubillo and by Mr Gunner must be dismissed. I will hear the parties on any question of costs.
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