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Editors --- "Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (26 August 1999) - Case Summary" [2000] AUIndigLawRpr 31; (2000) 5(4) Australian Indigenous Law Reporter 61

Court and Tribunal Decisions - Australia

Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor

Supreme Court of New South Wales (Abadee J)

26 August 1999

[1999] NSWSC 843

Aborigines Welfare Board — what duties owed to ward — negligence — no duty of care — no breach of duty or causation — no breach of statutory duty — no false imprisonment — fiduciary duty — nature and content of duty assuming fiduciary relationship — laches and prejudice basis to deny relief — damages highly speculative — contingent assessment appropriate — no entitlement to aggravated or exemplary damages.

Facts:

The plaintiff was born in 1942. At about four weeks of age she became a ward of the Aborigines Welfare Board (AWB) pursuant to an application by her mother under s 7(2) of the Aborigines Protection Act 1909 (NSW) (the Act). The AWB placed the plaintiff at Bomaderry Children’s Home which was administered by the United Aborigines Mission subject to inspection and oversight by the AWB. In 1947, at the age of four and a half years, the plaintiff was transferred to a Plymouth Brethren institution known as Lutanda Children’s Home where she remained until she was 18 years. The transfer was for the purpose of removing the plaintiff from the association of Aborigines because she was a fair skinned child, consistent with the AWB’s policy of assimilation. At all times the plaintiff remained a ward of the AWB.

The plaintiff brought proceedings for negligence, breach of statutory duty, breach of fiduciary duty and false imprisonment. It was claimed that the AWB breached its duty by placing the plaintiff in institutions where she would suffer from maternal deprivation leading to the development of borderline personality disorder.

Held:

1. The AWB did not owe a duty of care at common law to the plaintiff. Applying the three consideration test laid down in Caparo Industries PLC v Dickman [1990] UKHL 2; (1990) 2 AC 605 it was not just and reasonable to impose a duty of care. Policy factors, including social and economic consequences for other child caring bodies, dictated against the imposition of a duty of care. The common law should not impose a higher duty than that imposed on a natural parent. Further, there was no breach of duty, or relevant causation. The plaintiff’s case in negligence failed.

2. There was no breach of statutory duty. On a proper statutory construction ss 7(1)(c) and (e) conferred no right of action to a ward, having reference to the nature, scope and terms of the Act.

3. The finding that the plaintiff became a ward pursuant to an application by her mother meant that the claim for false imprisonment did not arise on the facts and should be rejected.

4. Assuming the existence of a fiduciary relationship (not decided), this did not of itself impose fiduciary duties of the kind claimed by the plaintiff. Canadian authorities in which fiduciary duties have protected interests of a non-economic kind should not be followed. Alternatively there was no breach of fiduciary duty or causation. Further there would have been a basis for denying equitable relief by reason of laches, prejudice or delay.

5. Any assessment of damages or equitable compensation would be highly speculative. A contingent assessment was appropriate. Exemplary or aggravated damages should not be awarded.

[On 12 September 2000 the NSW Court of Appeal dismissed an appeal by the plaintiff against this decision. A headnote and extracts of this case are reproduced on p 63.]