In accordance with the practice of the Federal Court in cases of public interest, the Court has prepared this brief summary to accompany the reasons for judgment, 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 is necessarily incomplete.
On 11 August 2000, a Judge of the Federal Court, O’Loughlin J, dismissed proceedings brought by Lorna Cubillo and Peter Gunner against the Commonwealth. Mrs Cubillo and Mr Gunner have appealed against the judgment of the primary Judge. The judgment we publish today deals with the arguments presented on the appeal.
Mrs Cubillo was aged eight when she was taken, along with fifteen other part-Aboriginal children, from the Phillip Creek Settlement, about forty kilometres north of Tennant Creek in the Northern Territory, in 1947. She was taken to the Retta Dixon Home in Darwin and remained there until October 1956. Mr Gunner was aged seven when he was removed from Utopia Station and taken to St Mary’s Hostel, south of Alice Springs, in May 1956. He remained there until 1963. The Retta Dixon Home was conducted by the Aborigines Inland Mission of Australia, while St Mary’s Hostel was run by the Australian Board of Missions.
The appellants claimed at the trial that their removal had taken place in consequence of a policy, endorsed by successive Commonwealth governments, whereby part Aboriginal children were taken from their families and placed in missions or institutions. The appellants said their removal and detention caused them pain and suffering (including serious psychological harm), loss of enjoyment of life and loss of cultural heritage. They also said that the Commonwealth was legally responsible for the wrongs done to them and was liable to compensate them in damages.
The appellants each relied on four causes of action to support their claims for damages:
(i)wrongful imprisonment and deprivation of liberty;
(ii)a breach of the statutory duty allegedly owed to them by the Director of Native Affairs, in failing to provide for their custody, maintenance and education, for which breach the Commonwealth was said to be vicariously responsible;
(iii)a breach of the duty of care allegedly owed to them by the Commonwealth; and
(iv)a breach of the Commonwealth’s fiduciary duties.
The trial before the primary Judge lasted 106 days. His Honour’s judgment runs to 485 printed pages. The legal and factual issues dealt with by the primary Judge were complex.
The primary Judge emphasised that the case presented particular difficulties because so much time had passed since the relevant events. (Mrs Cubillo’s removal had occurred more than fifty years before the trial while, in Mr Gunner’s case, more than forty years had elapsed.) There were therefore very large gaps in the evidence. His Honour also pointed out that the appellants…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cubillo v Commonwealth [2001] FCA 1213
Case
[2001] FCA 1213
Decision Date
CaseChat Overview and Summary
The case before the court involved the Commonwealth opposing the appellants' application for an extension of time to bring their claims. The Commonwealth argued that it would be unjust to grant the application due to the unreasonable delay in seeking relief, which caused significant prejudice, including difficulties in identifying and locating witnesses, unavailability of witnesses, and the inability of witnesses to recall relevant circumstances. The matter was heard at a directions hearing, where it was decided to hear evidence from six aged and frail witnesses before the trial proper. The primary Judge issued a detailed interlocutory judgment, declining the Commonwealth’s motion to dismiss the proceedings or to determine the applications for extensions of time separately. The Judge allowed the actions to proceed to trial and permitted the appellants to file further amended statements of claim.
The legal issues that arose in this case primarily concerned the appropriateness of allowing an extension of time for the appellants to bring their claims and whether the causes of action should be struck out. The court had to consider the prejudice to the Commonwealth in defending the proceedings, the difficulty in testing the appellants' submissions regarding the accrual of their causes of action, and the desirability of hearing evidence on the factual questions raised by the application for extensions of time. The primary Judge determined that it was inappropriate to hear the applications for extensions of time prior to the trial of the substantive issues.
In its reasoning, the court emphasised the importance of testing the appellants' submissions regarding when they became aware of their injuries and their connection to their removal and detention. The court concluded that it was difficult to test these submissions without evidence regarding the timing of the injuries and the appellants' awareness of their connection to the removal and detention. Additionally, the court found that it was desirable to hear evidence on the factual questions raised by the application for extensions of time. Consequently, the appeal was dismissed, and the parties were directed to file and serve written submissions regarding costs within 28 days.
Orders
Orders of the court
1. The appeal be dismissed.
2. The parties file and serve written submissions as to costs within 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Commonwealth opposed the appellants’ application for an extension of time on the ground that it would be unjust for the application to be granted having regard to the unreasonable delay in claiming relief and the consequent prejudice to the Commonwealth in defending the proceedings. The principal prejudice sustained by the Commonwealth was said to be the difficulty in identifying and locating witnesses, the unavailability of witnesses and the inability of witnesses to recall the relevant circumstances.THE INTERLOCUTORY JUDGMENT At a directions hearing on 12 March 1998, counsel for the Commonwealth advised the primary Judge that the Commonwealth intended to move for summary dismissal of the proceedings. Time was set aside in August 1998 for the hearing of the foreshadowed motion. To take account of the possibility that the motion might not succeed, the trial was listed to commence on 1 March 1999. On 5 June 1998, the Commonwealth filed the foreshadowed motion. In the alternative to orders dismissing the proceedings, the Commonwealth sought an order that the appellants’ applications for an extension of time under s 44 of the Limitation Act be determined as separate questions before the trial of other issues. In the event, the time set aside in August 1998 was devoted to hearing, in advance of the trial proper, evidence from six aged and frail witnesses. The Commonwealth’s motion was heard in March 1999, immediately following the opening addresses given at the trial by counsel for the appellants and for the Commonwealth. The primary Judge delivered a detailed interlocutory judgment on 30 April 1999 in which he declined to make the orders sought by the Commonwealth: Cubillo v Commonwealth (1999) 89 FCR 528 (“Cubillo (No 1)”). His Honour held that each of the actions should be permitted to go to trial and that none of the pleaded causes of action should be struck out. He criticised aspects of the pleaded cases, but granted leave to the appellants to file further amended statements of claim consistent with his reasons for judgment. The primary Judge noted (at 587) that the appellants maintained that they had separate causes of action in respect of each category of damage sustained by them. They had submitted that their respective causes of action for psychiatric and psychological injuries did not accrue until each appellant had become aware, or should reasonably have become aware, of the existence of the injuries and of their connection to his or her removal and detention. These events were said to have occurred within the relevant limitation periods. His Honour pointed out that it would be very difficult to test this submission without evidence establishing when the appellants had sustained their injuries and when each related the injuries to his or her removal and detention. The primary Judge also took the view (at 590) that it was desirable to hear evidence on the factual questions raised by the appellants’ application for extension of time. In these circumstances, he concluded that it was inappropriate to order that the applications for extensions of time be heard and determined prior to the trial of the substantive issues raised by the appellants’ pleadings.