Cubillo v Commonwealth

[1999] FCA 518

FEDERAL COURT OF AUSTRALIA

Cubillo v Commonwealth of Australia [1999] FCA 518

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

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

DUTY OF CARE – see Wrongful Imprisonment and Statutory Duty above

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

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

The Constitution s 75 (iii)
Judiciary Act 1903 (Cth) s 44
Limitation of Action Act 1981 (NT)
Aboriginal Ordinance 1918 (NT)
Welfare Ordinance 1953 (NT)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory Government Ordinance 1911 (NT)
Federal Court Rules O 13 r 4(1)(a), O 20 r 2

Kruger v Commonwealth of Australia (1997) 190 CLR 1 applied
In the Marriage of B and R (1994-1995) 19 Fam LR 594 noted
Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 followed
Palmdale Insurance Co (in liquidation) v L Grollo & Co Pty Ltd (1984) VR 408 distinguished
Walton v Gardiner [1992-1993] 177 CLR 378 applied
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 631 cited
Bass v Permanent Trustee Company Ltd (unreported:  judgment delivered 24 March 1999) cited
Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 followed
Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 referred to
Lonhro Plc v Fayed (1992) 1 WLR 1 applied
Webster v Lampard (1993) 177 CLR 598 applied
Waters v The Commonwealth (1951) 82 CLR 188 noted
Dey v Victorian Railways commissioners (1949) 78 CLR 62 followed
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112CLR 125 followed
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited
Lawrance v Lord Norreys (1890) 15 App Cas 210 applied
Wenlock v Moloney [1965] 1 WLR 1238 applied
Australian Building Industries Pty Ltd v Stramit Corporation Ltd (unreported:  judgment delivered 1 December 1997) followed
Myer Stores Ltd v Soo [1991] 2 VR 597 cited
Carnegie v State of Victoria (judgment delivered 14 September 1989) cited
Northern Territory v Mengel (1995) 185 CLR applied
Darling Island Stevedoring & Lighterage Co. Ltd v Long (1957) 97 CLR 36 applied
Pyrenees Shire Council v Day (1997-1998) 192 CLR 330 followed
In the Matter of Citizen Limbo (1989) 92 ALR 81 referred to
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 discussed and distinguished
Hillman v Black (1996) 67 SASR 490 noted
McMullin v ICI Australia (1997) 72 FCR 1 noted
Byrne v Australian Airlines Ltd [1995] 185 CLR 410 noted
TC by his tutor Sabatino v State of New South Wales (unreported: judgment delivered 11 February 1999) discussed
Bienke v Minister for Primary Industries and Energy (1996) 135 ALR 128 applied
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 relied on
Trobridge v Hardy [1955] 94 CLR 147 referred to
Bropho v Western Australia [1990] 171 CLR 1 applied
Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR 273 discussed
Jaensch v Coffey (1984-1985) 155 CLR 549 referred to
Bryan v Maloney [1995] 182 CLR 609 referred to

Stovin v Wise [1996] 3 WLR 388 cited

Re Appeal by Arthur Dingle (1962) 3 FLR 226 at 231 cited
Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 referred to
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
referred to
Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156CLR 41 followed
Breen v Williams (1996) 186 CLR 71 applied
Bennett v Minister of Community Welfare [1992] 176 CLR 408 discussed
Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497 noted
Paramasivam v Flynn (1998) 160 ALR 203 discussed and distinguished
M(K) v M(H) (1992) 96 DLR (4^th) 219 discussed
Northern Land Council v Aboriginal Land Commissioner (1991-1992) 105 ALR 539 applied
Re Toohey (Aboriginal Land Commissioner), Ex Parte Stanton (1983) 44 ALR 94 applied
Jungarrayi v Olney (1991-1992) 105 ALR 527 noted
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 applied
Enever v R (1906) 3 CLR 969 referred to
Field v Nott (1939) 62 CLR 660 applied
Baume v Commonwealth (1906) 4 CLR 97 applied
Ward v Walton (1989) 66 NTR 20 followed
Cartledge v E Jopling & Sons Ltd [1963] AC 758 discussed
Lovett v LeGall (1975) 10 SASR 479 referred to
Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 followed
Wardley Australia v Western Australia (1992) 175 CLR 514 followed
Noble v State of Victoria (judgment delivered 13 April 1999) noted
Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 applied
State of South Australia v Johnson (1982) 42 ALR 161 discussed
Ulowski v Miller [1968] SASR 277 noted
Forbes v Davies (1994) Aust Torts Rep 62 392 (81-279) noted
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 discussed and distinguished
Sydney City Council v Zegarac [1998] 43 NSWLR 195 distinguished
Famel Pty Ltd v Burswood Management Ltd (1990) ATPR 41-004 followed

LORNA CUBILLO v COMMONWEALTH OF AUSTRALIA

NO DG 14 of 1996

PETER GUNNER v COMMONWEALTH OF AUSTRALIA
NO DG 21 OF 1996

O’LOUGHLIN J
30 APRIL 1999
DARWIN

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

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

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

THE COURT ORDERS THAT:

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

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

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

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

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

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

Page No Paragraph No

___________________________________________________________________________

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

___________________________________________________________________________

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

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

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

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

REASONS FOR JUDGMENT

Application to Dismiss Actions Summarily

Introduction

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

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

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

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

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

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

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

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

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

   The Orders sought

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

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

   (a)no reasonable cause of action is disclosed;

   (b)the proceeding is frivolous or vexatious; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   The applicants’ complaint

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

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

   The Power to Grant a Stay

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

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

   The History of the litigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Mrs Lorna Cubillo

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

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

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

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

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

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

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

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

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

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

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

   Mr Peter Gunner

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

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

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

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

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

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

   The material before the Court

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

   The Commonwealth’s response

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

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

    The relevant Legislation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    “(a)his manner of living;

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

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

    (d)his personal associations.

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

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

   “8.      It is the duty of the Director –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   Summary Dismissal of Proceedings

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

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

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

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

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

   At the following page his Honour added:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Guardianship

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

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

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

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

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

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

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

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

    Wrongful Imprisonment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Conclusion

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

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

    SCHEDULE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Associate:

Dated:             30 April 1999

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