ABORIGINES – children –separation – whether forced or consensual – whether application of general policy without regard to individual circumstances
EVIDENCE – demarcation between matters known to a judge personally and matters before a court formally as evidence – trial judge bound by evidence formally before the court – ability of a trial judge to accept part only of a witness’ evidence – weight to attach to documentary evidence – application of the Briginshaw test to a non party witness – whether principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation – rule in Jones v Dunkel – absence of witnesses claimed to be material witnesses – tendency evidence in civil trials – admissibility – s 97 Evidence Act 1995 (Cth) – whether risk of concoction
WRONGFUL IMPRISONMENT – whether applicants detained – wrongful imprisonment and deprivation of liberty – whether detention unlawful – whether statutory powers exceeded – whether application of general policy without regard to individual circumstances
NEGLIGENCE / DUTY OF CARE – whether duty owed – whether general duty of care owed in exercise of powers under welfare statutes – whether breach of duty
EQUITY – fiduciary duty – guardianship – exercise of statutory powers over wards – whether Commonwealth owed and breached fiduciary duties to part Aboriginal people – psychiatric injury – defences – limitation statute not applying to equitable actions – limitation by analogy – laches
VICARIOUS LIABILITY – liability of the Commonwealth – whether tortfeasor servant or agent of Commonwealth – application of independent discretion rule – whether chain of command or control – whether Commonwealth controlled the administration of Aboriginal affairs in the Northern Territory as part of its ordinary governmental functions – whether Director of Native Affairs or Welfare subject to the control of the Commonwealth through the Administrator in the performance of his functions
DAMAGES – assessment of damages – loss of cultural, social and spiritual life – loss of entitlements and advantages under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – mitigation – exemplary damages – whether conscious and contumelious disregard for welfare and rights of the applicants – wanton cruel and reckless indifference – aggravated damages
LIMITATION OF ACTIONS – applications for extension of time – whether extensions should be granted – delay in bringing action – persons under disability – prejudice to the Commonwealth – hardship – whether material facts became known to the applicants
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cubillo v Commonwealth (No 2) [2000] FCA 1084
Case
[2000] FCA 1084
Decision Date
CaseChat Overview and Summary
In the case of Cubillo v Commonwealth (No 2), the applicants, Mrs Cubillo and Mr Gunner, sought compensation for their removal from their families and institutionalisation during the mid-twentieth century, alleging that these actions were part of a policy to assimilate part-Aboriginal children into the European mainstream. The case was heard by the Supreme Court of the Northern Territory, where the central legal issues revolved around whether the Commonwealth's actions were justified under the statutory powers available at the time and whether there was a breach of common law duties owed to the applicants. Additionally, the court had to determine if there were grounds for awarding exemplary or aggravated damages.
The court examined the historical context and prevailing beliefs during the period in question, acknowledging that there was a prevailing school of thought which supported the assimilation of part-Aboriginal children. The court found that while the motives of those involved may have been well-intentioned, they were misguided by modern standards, particularly in their failure to recognise the importance of Aboriginal culture. The evidence presented did not substantiate a claim that the actions of the Commonwealth officials exceeded their statutory powers or breached any common law duty. The court found no substance in any claim for exemplary or aggravated damages, as there was no evidence to suggest malice or reckless disregard for the applicants' rights.
In conclusion, the court ruled that the application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) was refused, and each claim was dismissed. The question of costs was reserved for further consideration. The decision underscored the legal constraints under which the Commonwealth officials operated, and while the court expressed sympathy for the applicants' suffering, it found that the actions taken were not beyond the statutory powers available at the time.
ORDERS:
1 The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.
2 Any question of costs is reserved for further consideration.
Orders
Orders of the court
1 The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.
2 Any question of costs is reserved for further consideration.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
As to the question of the implementation of the policy, the applicants faced the hurdles that have already been identified: in Mrs Cubillo’s case there was no evidence about the motives, purposes or intents of those involved in her removal and detention; in the case of Mr Gunner, the available evidence suggested that personal and benign consideration for his interests were considered. I cannot see any substance in any claim for an award of exemplary damages or aggravated damages.Conclusion The evidence that I have heard throughout this trial from the witnesses who were called by the Commonwealth has established to my satisfaction that there was a school of thought prevailing at the times that are relevant to the claims of Mrs Cubillo and Mr Gunner. At the forefront of that school of thought was the belief that it was in the best interests of part Aboriginal children to assimilate them into the European mainstream and that the best way to do that was through a western style education. In pursuing that school of thought, those who were in authority concerned themselves only with the fact that the child was part white. Having made the decision to remove the child, there was a total disregard of the fact that the child was also part Aboriginal, of the fact that the child’s mother or family with whom the child was living was or were Aboriginal and of the fact that the child had been brought up only aware of Aboriginal culture and unaware of European culture. That was where those in authority stand condemned on today’s standards. Today most Australians realise that the Aboriginal people have a rich and diverse culture that is to be encouraged and preserved. However, the writings that were tendered in the trial and the oral evidence showed that such thinking was not the mainstream thinking of people in earlier times. The evidence showed that there were people in the 1940s and 1950s who cared for the Aboriginal people. I select, but only as examples of the people I have in mind, the witnesses Sister Eileen Heath and Mr Creed Lovegrove. However, their concern did not extend to the recognition of the Aboriginal culture and lifestyle; it was devoted to western style welfare or religious issues and issues of concern for the physical or spiritual well-being of the people. That form of paternalism is not accepted today but it was accepted in the 1940s and the 1950s by many people and in particular by those who administered the Native Affairs Branch and the Welfare Branch in the Northern Territory in the period that covered the institutionalisation of both Mrs Cubillo and Mr Gunner. I have great sympathy for Mrs Cubillo, for Mr Gunner and for others who, like them, suffered so severely as a result of the actions of many men and women who thought of themselves as well-meaning and well intentioned but who today would be characterised by many as badly misguided politicians and bureaucrats. Those people thought that they were acting in the best interests of the child. Subsequent events have shown that they were wrong. However, it is possible that they were acting pursuant to statutory powers or, perhaps in these two claims, it would be more accurate to say that the applicants have not proved that they acted beyond their powers.