Cubillo v Commonwealth (No 2) - [2000] FCA 1084

FEDERAL COURT OF AUSTRALIA
Cubillo v Commonwealth [2000] FCA 1084
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
STATUTORY DUTY – whether statutory duty arose – whether statute precluded duty arising – whether statute allowed recovery for breach of statutory duty
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
The Constitution ss 49, 75(iii)
Judiciary Act 1903 (Cth) s 44
Parliamentary Privileges Act 1987 (Cth) s 16
Rights of the Terminally Ill Act 1995 (NT)
Medical Treatment (Amendment) Bill 1995 (ACT)
Euthanasia Laws Act 1997 (Cth)
Criminal Code (Qld)
Criminal Law Consolidation Act 1935 (SA) s 82A
Criminal Code (NT) s 174
Health Act 1911 (WA) s 334
Defence Act 1903 (Cth) s 61A
Criminal Code (Tas) ss 122, 123
Human Rights (Sexual Conduct) Act 1994 (Cth)
Family Law Act 1975 (Cth)
Aboriginals Ordinance 1918 (NT) ss 3, 3A, 4, 5, 6, 6(1), 6(2), 7, 8, 13, 13(6), 16, 17
Aboriginals Ordinance 1911 (NT)
Northern Territory Aboriginals Act 1910 (SA)
Welfare Ordinance 1953 (NT) ss 8, 14, 17, 17(2), 24, 32,
Northern Territory Acceptance Act 1910 (Cth) s 6(1)
Northern Territory (Administration) Act 1910 (Cth) ss 4(1), 4(2), 13(1)
Northern Territory (Administration) Act 1947 (Cth) s 4U
Evidence Act 1995 (Cth) ss 55, 60, 73, 74, 97
Limitation of Suits and Actions Act 1866 (SA)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23(3)
Limitation of Actions Act 1936 (SA) s 48
Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA)
Limitation Act 1969 (NSW) ss 60E(1)(b), 60G, 60I(1)
Welfare Regulations (NT) rr 12, 13, 14
Evidence Regulations 1995 (Cth) rr 6, 6(2)
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Hahn v Conley (1971) 126 CLR 276 considered
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TC v State of New South Wales [1997] NSWSC 31 distinguished
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 cited
Breen v Williams (1996) 186 CLR 71 cited
Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 discussed
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Williams v Minister, Aboriginal Land Rights Act 1983[No 1] (1994) 35 NSWLR 497 considered
Paramasivam v Flynn (1998) 160 ALR 203 applied
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Clay v Clay (1999) 20 WAR 427 considered
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Orr v Ford (1989) 167 CLR 316 cited
Permanent Building Society (in liq) v McGee (1993) 11 ASCR 260 referred to
Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 referred to
Bennett v Minister of Community Welfare (1992) 176 CLR 408 cited
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) (1967) 116 CLR 177 cited
R v Turner (1974) 60 Crim App R 80 cited
March v Stramere (E & H) Pty Ltd [1990-1991] 171 CLR 506 followed
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 referred to
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Dixon v Davies (1982) 17 NTR 31 referred to
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LORNA CUBILLO v COMMONWEALTH OF AUSTRALIA
DG 14 OF 1996
PETER GUNNER v COMMONWEALTH OF AUSTRALIA
DG 21 OF 1996
O’LOUGHLIN J
11 AUGUST 2000
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

LORNA CUBILLO DG 14 OF 1996
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

11 AUGUST 2000

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:
1The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.
2Any question of costs is reserved for further consideration.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

PETER GUNNER DG 21 OF 1996
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
Respondent

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

11 AUGUST 2000

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:
1The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.
2Any question of costs is reserved for further consideration.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Index
An Introduction  Paragraph No
The Stolen Generation  1 – 5
Mrs Cubillo – an introduction  6 – 11
Mr Gunner – an introduction  12 – 14
The History of the Litigation  15 – 23
Witnesses for Mrs Cubillo  24
Witnesses for Mr Gunner  25 – 26
Witnesses for the Commonwealth  27 – 52
Deceased and Missing “witnesses”  53 – 63
Bringing Them Home   64 – 81
Changing Standards   82 – 105
The Commonwealth – an introduction   106 – 117
Accepting only part of the Evidence of a Witness   118 – 125
Documents   126 – 127
The Relevant Legislation   128 – 164
Policy Issues   165 – 190
The McEwen Policy of 1939   191 – 205
The Wave Hill incident and the Leydin Report   206 – 228
The Hon Paul Hasluck MP   229 – 259
The 1952 Policy – its end   260 – 262
The Milliken Tests   263 – 300
Was there an Indiscriminate Policy of Removal?   301 – 321
The Relationship between the Commonwealth and the Missions 322 – 345
The Briginshaw Test   346 – 352
The Rule in Jones v Dunkel        353 – 362

Lorna Nelson Cubillo and The Retta Dixon Home
Lorna Nelson Cubillo and The Retta Dixon Home   363 – 409
The Phillip Creek Native Settlement   410 – 434
Phillip Creek to the Retta Dixon Home   435 – 457
The Four Tennant Creek Women   458 – 500
Who Removed the Children from Phillip Creek   501 – 511
The Retta Dixon Home   512 – 706
The Interview of Lorna Cubillo by Mai Katona   707 – 736

Peter Gunner and St Mary’s Hostel
Peter Gunner and St Mary’s Hostel   737 – 891
           Kevin Constable   892 – 940
           Evidence of Sexual Impropriety   941 – 1075

Causes of Action
Causes of Action  1076 – 1082
           Vicarious Liability  1083 – 1133
           The Institutions as Agents of the Commonwealth  1134 – 1142
           False Imprisonment   1143 – 1174
           Statutory Duty   1175 – 1193
           Duty of Care   1194 – 1269
           Fiduciary Duty   1270 – 1307
           Extension of Time  1308 – 1425
           Laches   1426 – 1434
           Psychiatric Evidence   1435 – 1485
           Damages   1486 – 1532
           Damages – Conclusion   1533 – 1547
           Exemplary Damages   1548 – 1559
           Conclusion         1560 – 1565

Schedule Pages 674 – 677

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:

11 AUGUST 2000

PLACE:

DARWIN

REASONS FOR JUDGMENT
The Stolen Generation

The applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are said to be members of “the Stolen Generation”. That is the term that has been widely used to refer to the former practice of taking part Aboriginal children from their families and placing them in missions or institutions. Mrs Cubillo has claimed that in 1947 she and fifteen other children were forcibly removed by servants or agents of the respondent from the Phillip Creek Native Settlement and thereafter detained in the Retta Dixon Home in Darwin. Mr Gunner has claimed that in 1956 he was forcibly removed by servants or agents of the respondent from Utopia Station and thereafter detained in St Mary’s Hostel in Alice Springs. The applicants have instituted proceedings against the respondent, the Commonwealth of Australia (“the Commonwealth”), alleging that it is the party which bears the legal responsibility for the injuries and damages that they have suffered as a result of their removal and detention. Their claims for compensation have been rejected by the Commonwealth.
The opening statement in the closing submissions of counsel for the applicants laid out the base upon which these proceedings were fought:
“These cases concern great injustice done by the Commonwealth of Australia to two of its citizens. By the actions of the Commonwealth, Lorna Cubillo and Peter Gunner were removed as young children from their families and communities. They were taken hundreds of kilometres from the countries of their birth. They were prevented from returning. They were made to live among strangers, in a strange place, in institutions which bore no resemblance to a home. They lost, by the actions of the Commonwealth, the chance to grow among the warmth of their own people, speaking their people’s languages and learning about their country. They suffered lasting psychiatric injury. They were treated as orphans when they were not orphans. They lost the culture and traditions of their families. Decades later, the Commonwealth of Australia says in this case that it did them no wrong at all.”
Neither the evidence in this trial, nor these reasons for judgment, deny the existence of “the Stolen Generation”. Writings, both contemporary and historical, (not all of which were presented as evidence in this trial) tell tragically of a distressing past. Many would take it for granted that “the Stolen Generation” is a catch phrase that truly describes what happened to many part Aboriginal children for many years. But this trial has focussed primarily on the personal histories of two people: Lorna Cubillo and Peter Gunner. Material was placed before the Court that addressed the policies of the Commonwealth Government since the turn of the twentieth century. Ministerial statements and the writings of senior public servants and others were received into evidence on the same subject. However, whilst in no way diminishing their importance, it remains the fact that they were, for the most part, aids in the understanding of the personal circumstances of the two applicants.
There were excursions into the lives of some other part Aboriginal men and women and I will mention them later in these reasons. But the matter of importance is to stress that the lives of Lorna Cubillo and Peter Gunner must not be treated as symptomatic of the lives of all part Aboriginal children in the 1940s and the 1950s. Indeed the evidence showed that their separate circumstances were quite different. It is said that many hundreds, perhaps thousands, of part Aboriginal people have instituted like proceedings against the Commonwealth and that this number may only be some of those who had been institutionalised as children. However, putting Mrs Cubillo and Mr Gunner to one side, only eight of those came forth as witnesses for the applicants; and four of them conceded in cross-examination that they had been placed in the institution at the request of their parents.
Then there was the case for the Commonwealth: three of its witnesses, who as part Aboriginal children, were placed in institutions, gave evidence saying how pleased they were that they had had the opportunity of a western education. Furthermore, the evidence in this trial was limited to events that occurred in the Northern Territory of Australia; no evidence was placed before the Court concerning “the Stolen Generation” in the States. This brief summary should be sufficient, without more, to explain why the evidence in this trial cannot be used as a base to examine the breadth of the term “the Stolen Generation”. The evidence showed that broad generalisations cannot be made. In particular, the mere fact that a part Aboriginal child was placed in an institution does not, without more, justify that person claiming that he or she is a member of “the Stolen Generation”. In every case it will be necessary to question why was the child institutionalised? Who was responsible? And was it necessary or desirable in the interests of the child? Many of the official writings and other papers that were tendered during the course of the trial will require scrutiny but, in general, it can be said that the official writings during the periods that were relevant to Mrs Cubillo and Mr Gunner, while strongly favouring a policy of assimilation, claimed to do so upon the premise that it was in the best interests of the child. That was a view that was propounded by many people who were called as witnesses for the Commonwealth. They claimed that there was no general policy of forced institutionalisation of part Aboriginal children in their time. They claimed that, unless it was a case of neglect or harm, no child was removed without the consent of his or her mother. But those witnesses were also few in number. Whilst none of them gave me any reason to doubt their honesty, I cannot regard their evidence as being any stronger than their personal experiences.
Mrs Cubillo – an introduction
Mrs Cubillo, as a child, was known as Lorna Nelson and her tribal name was Napanangka. According to her birth certificate, she was born on 8 August 1938 and that is the date of her birth as pleaded in sub par 1(h) of her further amended statement of claim.
Mrs Cubillo said that the earliest memories of her childhood were of Banka Banka Station, a cattle property that was then operated by Mr Ted Ward and his wife Mary. In circumstances that were challenged by the Commonwealth, Mrs Cubillo claimed that at some stage (probably in the early 1940s) a patrol officer, Bill Harney, and his assistant, Barney McGinness, took her away, forcibly, from her grandmother’s care at Banka Banka and placed her with the Aboriginal community in the ration depot at Seven Mile Creek (which was also known as “the Telegraph Station”). Unfortunately, both Mr Harney and Mr McGinness are dead, as is Mrs Cubillo’s grandmother; so also are Mr and Mrs Ward. No one else has been identified as a person who could have given evidence about the circumstances of her removal and no documentary evidence addressed the subject.
Not long after Lorna’s removal to Seven Mile Creek, the Aboriginal community was moved to a new depot at Six Mile Creek. That occurred in late 1942 when Lorna would have been about four years of age. Both depots were north-east of Tennant Creek. To get to Six Mile Creek, one drives north on the Stuart Highway from Tennant Creek for about ten kilometres (or seven miles) to “the Telegraph Station” which is just off the highway – about 100 metres or so to the east. The new depot at Six Mile Creek lay about ten kilometres (or six miles) due east of “the Telegraph Station” on a rough bush track. The Court viewed the location of the depot at Six Mile Creek but little remains to give any idea of what it might have looked like over fifty years ago. When Lorna was living at the two depots, they were managed for a time by Mr William Arnold (“Arnold”) Long and his wife, Dorothy; at another stage, a Mr Jim Davy was the manager; all were missionaries working with an interdenominational body called the Aborigines Inland Mission of Australia (“the Aborigines Inland Mission”). All are now dead, Mrs Long having died as recently as 8 June 1997.
Towards the end of the Second World War, it became apparent that the water supply at the depot at Six Mile Creek was inadequate. As a result, 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 north of Tennant Creek, near the Stuart Highway and about forty miles to the south of Banka Banka Station. Lorna and all the other people who were living at the depot at Six Mile Creek were moved to the new location at Phillip Creek.
Mrs Cubillo was one of sixteen part Aboriginal children who, in 1947, were taken by truck from the Phillip Creek Settlement to the Retta Dixon Home in Darwin. The Settlement and the Home were both then conducted under the auspices of the Aborigines Inland Mission and Mr Ivor Thomas, a missionary, was the Superintendent at the Settlement at that time. Miss Amelia Shankelton, who was the Superintendent of the Retta Dixon Home, had a significant part to play in the removal of the children and Mr Les Penhall, then a cadet patrol officer and an officer of the Northern Territory Administration, who gave evidence in the trial on behalf of the Commonwealth, drove the truck that carried the children to Darwin. Lorna remained an inmate of the Retta Dixon Home until she turned eighteen in 1956.
Mrs Cubillo gave evidence, at times in graphic detail, about the harshness and lack of affection that she and others allegedly suffered at the Retta Dixon Home at the hands of Miss Shankelton and two of her co-missionaries, Ms Dinham and Ms Spohn. Those three women are dead and cannot now defend themselves or their institution. She also made very serious accusations against Mr Des Walter, one of the male missionaries at the Home. He is alive and he gave evidence on behalf of the Commonwealth. He denied the many allegations that were levelled against him by Mrs Cubillo.
Mr Gunner – an introduction
Mr Gunner’s background was not connected in any way with Mrs Cubillo’s. He was born at or near the cattle station known as Utopia Station and, as a small child, came to the notice of a patrol officer, Ted Evans. Later, he came to the notice of another patrol officer, Harry Kitching. Mr Kitching recommended that Peter be removed to an institution if his mother, Topsy Kundrilba would give her consent. The Commonwealth’s case is that her consent was given. Peter was admitted to St Mary’s Hostel in Alice Springs on 24 May 1956. St Mary’s was conducted as a Hostel for part Aboriginal children by the Australian Board of Missions under the auspices of the Anglican Church. Mr Gunner claimed that his removal was forced on him by the Commonwealth against his wishes and those of his mother.
Mr Kitching and Mrs Dora McLeod, who, with her late husband, owned the lease of Utopia Station in the 1950s, gave evidence for the Commonwealth, but their memories were impaired through age and infirmity. Neither could speak with conviction about the circumstances of Peter’s removal from the Station. Two elderly Aboriginal witnesses, Mr Johnny Skinner and Mrs Lena Pula, who were living at Utopia when Peter was taken to St Mary’s, gave evidence on his behalf. Mr Skinner supported the claim that Peter was forcibly removed by patrol officers but Mrs Pula was not present on the day that Peter left Utopia and therefore could not speak about the circumstances of his removal.
Mr Gunner’s complaints about the manner in which he was treated at St Mary’s were numerous. But the most alarming complaint was his allegation that he had been sexually molested by Mr Kevin Constable, one of the missionaries. Four other young boys, now men in their fifties, also gave evidence that, at some stage while they were resident at St Mary’s, they were molested, either by Mr Constable or by another missionary, Mr Malcolm Bald. The four witnesses were Daniel Forrester, Stanley Scrutton, Wally Gardiner and a man whose name was suppressed from publication and to whom I shall refer as GK. Mr Bald died as recently as 25 January 1998, but Mr Constable gave evidence for the Commonwealth. He denied all accusations of impropriety.
The History of the Litigation
Each of these matters was separately commenced by writ and statement of claim in the High Court of Australia. The proceedings in the name of Mrs Cubillo were filed on 30 October 1996 and those in Mr Gunner’s name were filed a day later on 31 October. 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, with the consent of all parties, 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). When the separate trials were called on for hearing, the parties consented to orders that they be heard together. It was also agreed that the evidence in one matter would, so far as it may be applicable, be evidence in the other.
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. The applicants filed further amended statements of claim on 17 May 1999 and the respondent further amended defences on 4 June 1999. Mrs Cubillo and Mr Gunner have claimed that their respective removals and detentions constituted “wrongful imprisonment and deprivation of liberty”. That claim was the first of four alleged causes of action against the Commonwealth. The remaining causes of action were 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, were claimed in each case. There were also claims for aggravated and exemplary damages. In par 44 of Mrs Cubillo’s further amended statement of claim it was 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 appeared in par 65 of Mr Gunner’s further amended statement of claim.
Many allegations that were originally made by the applicants in their pleadings were withdrawn during the course of the trial. That was not one of them. On the first day and the last day of the trial the applicants were pursuing the same goal. They set themselves the task of proving that a sovereign State acted with a “conscious and contumelious disregard for the welfare and the rights” of two small part Aboriginal children by forcibly separating them from their families against the wishes of their families. Their alternative plea was that the Commonwealth acted with a “wanton cruel and reckless indifference” to their welfare and their rights.
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.
In due course, the Commonwealth filed a notice of motion seeking orders of summary dismissal; however, it was accompanied by an affidavit in support of an order 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.”
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. In the events that transpired, Sister Eileen’s evidence was taken in Perth and Mr Kitching’s evidence was taken in Townsville during the week of 3 August 1998. Sister Eileen was the founding Superintendent of St Mary’s Hostel for part Aboriginal children in Alice Springs; Mr Kitching was, as I have already indicated, a patrol officer with the Native Affairs Branch and was closely involved in the arrangements to have Mr Gunner placed in St Mary’s Hostel. 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 1998. Mrs Bott’s late husband, Archdeacon Bott, had been a one time Superintendent of St Mary’s Hostel. 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 October 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. I accepted that medical evidence. Mr Milliken was duly called as a witness for the Commonwealth in the trial but nothing further was heard about Mrs Barrett until very late in the trial when the Court was informed that the Commonwealth did not then “rate her” as important.

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.
On 1 March 1999, both cases were called on for hearing in Darwin. Mr Rush QC, assisted by Mr Dreyfus QC and Ms Richards appeared for both applicants; Mr Dreyfus had, by then, replaced Mr Keon-Cohen QC who had earlier appeared for the applicants during the week of Monday 3 August 1998. 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.
On 30 April 1999, the Court dismissed the Commonwealth’s application for summary judgment: Cubillo v The Commonwealth (1999) 89 FCR 528 (“the interlocutory judgment”) and the trial resumed in Darwin on 10 August 1999. To accommodate the convenience of witnesses, the Court heard evidence in Darwin and then moved to Tennant Creek, Alice Springs and Melbourne before concluding evidence in Darwin; final submissions, due to the consideration of counsel for which I am most grateful, were heard in Adelaide. The last of the oral submissions were made on 31 March 2000 and the last of the written submissions were received on 10 May 2000.
Witnesses for Mrs Cubillo
Mrs Cubillo’s witnesses can be divided into four groups. First, there was the evidence of four elderly Aboriginal women, Kathleen Napanangka, her sister Eileen Napanangka, Bunny Napurrula and her sister Annie Napurrula. Their evidence was directed, in the main, to the circumstances of the removal of the group of part Aboriginal children (of whom the young Lorna Nelson was one) from the Phillip Creek Native Settlement to the Retta Dixon Home. The last three were living at the Phillip Creek Settlement at the time and each gave evidence of her memories of the day when the children were taken away; the first of them, Kathleen Napanangka, was living with her husband at Banka Banka Station, where he was employed as the head stockman. Secondly, there were the two witnesses, Mr James (“Jimmy”) Anderson and Mr William (“Willy”) Lane, who, like Mrs Cubillo, were children who were removed from Phillip Creek and taken, with her, to the Retta Dixon Home. Thirdly, there was the evidence of Mrs Mai Katona and Mrs Maxine Hill. Neither of them was a Phillip Creek child but they were both inmates of the Retta Dixon Home when Mrs Cubillo was there. The fourth group consisted of expert witnesses. Dr McGrath, an historian, gave evidence about community standards, as they existed in the 1940s and 1950s, in relation to the removal of part Aboriginal children from their mothers. Her evidence was also relevant to Mr Gunner’s claim. The remaining expert witnesses were Ms Petronella Vaarzon-Morel, an anthropologist, Drs Waters and Gibney, psychiatrists, and Mr David Avery, a legal practitioner in the employ of the Central Land Council. Mr Avery’s evidence was also relevant to Mr Gunner’s claim as was the evidence of Dr Waters.
Witnesses for Mr Gunner
I have already introduced Mr Gunner’s first two witnesses, Mr Skinner and Mrs Pula; they told of aspects of his life as a child at Utopia Station. Next there were four witnesses who, as boys, were inmates at St Mary’s Hostel at the same time as Mr Gunner; they told that they, like him, had been sexually molested by a member of the staff at St Mary’s. Mr Gunner also called a former senior officer in the Welfare Branch of the Northern Territory Administration, Mr Reg Worthy. Mr Worthy, who was exceptionally critical of St Mary’s, was born on 5 August 1920; he was seventy-nine years of age when he gave evidence in these proceedings. After obtaining a diploma, following a two year course of studies at the Melbourne Bible Institute, he joined the YMCA as a welfare officer with the second AIF; he was discharged from the Army on medical grounds in 1943 and resumed civilian life with the YMCA, working in Victoria at the Brunswick Youth Centre. He combined his work commitments with further studies at the Melbourne University obtaining first, a Diploma in Social Studies and, later, a Bachelor of Arts. He progressed to the position of a probation and parole officer in Victoria and from there he was appointed, in July 1962, to the position of Administrative officer, General Welfare in the Welfare Branch of the Northern Territory Administration. Mr Worthy remained in that position until December 1965 when he returned to Melbourne to become a social worker with the Commonwealth Department of Social Services. In 1968, Mr Worthy was appointed the director of the newly formed Victorian Department of Aboriginal Affairs; in 1974, when the Commonwealth entered that field, he became a regional director in the Commonwealth Department, retiring as a regional director in 1978. When Mr Worthy arrived in Darwin in 1962, Lorna Nelson had left the Retta Dixon Home but Peter Gunner was still residing at St Mary’s Hostel. Mr HC (“Harry”) Giese was the Director of Welfare and Mr Ted Milliken was the Assistant Director. Mr Les Penhall was the Assistant Director Southern Division stationed at Alice Springs; Mr Billy McCoy was also at Alice Springs as were Sister Eileen Heath and Mrs Rene Ballagh in their capacity as welfare officers.
Mr Gunner’s next witness was Mrs Wonka. She remembered him from her school days at the Hartley Street School at Alice Springs. She had been a student at the same time as Peter. Mr Gunner’s remaining witnesses were Dr Morton, an anthropologist and Dr Phillips, a psychiatrist.
Witnesses for the Commonwealth
The witnesses for the Commonwealth can be divided into three groups. The evidence of the first group concentrated on Mrs Cubillo or the Retta Dixon Home while the evidence of the second group was limited to Mr Gunner or St Mary’s Hostel. The remaining group, comprising mostly former patrol officers and other employees of the Native Affairs Branch or its successor, the Welfare Branch, gave evidence that had relevance and general application to the claims of both applicants.
The calibre of the former officers of the Native Affairs Branch and the Welfare Branch who gave evidence in this trial was exceptionally high. Many of them were highly educated and many subsequently achieved high postings in Government in later life. Their achievements are noted later in these reasons. My reason for mentioning this factor is to identify them as people of intelligence and experience who might be expected to have knowledge and awareness of the policies that existed in relation to Aboriginal and part Aboriginal people and the manner in which those policies were implemented. As the summaries of their evidence will reveal, all of them denied the existence of a general or widespread policy of removal of part Aboriginal children and most of them insisted that no child was removed without the consent of the mother of that child.
Witnesses whose evidence related to Mrs Cubillo or the Retta Dixon Home included the Reverend Egerton Long who was the Director of the Aborigines Inland Mission from November 1953 to December 1972. In that capacity he visited Darwin and the Retta Dixon Home from his base in Sydney from time to time. Sister Jean Johnson and Mrs Chrissy Treloar (nee South) had both, at different times, been carers for the children at the Retta Dixon Home. Mrs Marjorie Harris had been, at one stage, a part Aboriginal missionary at the Retta Dixon Home whilst Mrs Ruby Matthews, another part Aboriginal woman, had been an inmate of the Home. Mrs Mamie Moy (whose former married name was Merlin) had been a welfare officer working in Darwin in the Welfare Branch of the Northern Territory Administration from 1955 to 1962. Her work brought her into contact with the Retta Dixon Home. Long after her association with Darwin ceased, she met and married Mr Frank Moy, who, coincidentally, had been the Director of Native Affairs in Darwin from 1946 to 1953. To avoid confusion, I will refer to her throughout these reasons as Mrs Moy.
The next witness who must be mentioned was Mr Les Penhall. Much of his evidence concerned the work of the patrol officers but he played a significant role, as the driver of the truck, when the part Aboriginal children were taken from the Settlement at Phillip Creek. Finally, there was Mr Des Walter, a former missionary at the Retta Dixon Home and the man who Mrs Cubillo accused of savagely beating her.
I turn now to the second group of witnesses whose evidence was primarily directed towards Peter Gunner and St Mary’s Hostel. First, there was the man of the same name, Peter Gunner, who accepted that he was Mr Gunner’s father. Unfortunately, due to age and infirmity, Mrs McLeod’s memory was very confused and I was not able to rely on her evidence, except for the contents of her diaries. Mr Kitching, like Mrs McLeod, also had a very poor memory of events and his evidence was not as helpful as it might have been. Mrs Kunoth-Monks is a part Aboriginal woman who has had a very successful life both in western terms as well as in Aboriginal affairs. She resided in St Mary’s Hostel before Mr Gunner’s time. She is an example of a former inmate who was placed in the Hostel by her parents so that she might gain a western education. Sister Eileen Heath is the next witness mentioned; she founded St Mary’s Hostel but left it at the end of 1955 to become a welfare officer in the Northern Territory Administration. Peter Gunner went to the Hostel in May 1956. Colin Leslie Steep was born on 7 January 1925; he was seventy-four years of age at the time when he gave his evidence in this trial. He is an Anglican clergyman, presently following his vocation as an assistant minister in a parish in New South Wales. Mr Steep said that he joined the Church Army, an organisation within the Anglican Church in 1946, at which point he would have been aged about twenty-one. He said that he then trained for two years to be an Evangelist, successfully completing his studies and being commissioned as an officer-evangelist in November 1947. He was thereafter generally known as Captain Steep. Mr Steep married in December 1953 and his wife joined him in his parochial duties in the New South Wales outback; previously, he had spent most of his time performing mission work throughout Victoria. His parish duties brought him into reasonably regular contact with part Aboriginal people who were among his parishioners. His duties, then as a lay minister, included meeting with those people in their homes where he would hold religious services.
Captain Steep believed that his work among his parishioners gave him the opportunity to form good working relations with the part Aboriginal people who, so he said, “were very keen for their children to be educated”. In November 1955, Captain Steep was offered the opportunity by the head of the Church Army to take up the position of Warden at St Mary’s; the offer included the proposition that his wife assume the role of Matron. Mrs Steep, who also gave evidence for the Commonwealth, had training in mothercraft and kindergarten teaching. When they arrived at St Mary’s in January 1956 she had one little girl and a second was born not long after. Two more girls followed in 1958 and 1959. As Matron, Mrs Steep had a supervisory role over other members of the staff as well as looking after the girls in the dormitories. The Steeps resigned their positions in St Mary’s in 1959.
Captain Steep was succeeded as Warden by Mr Harold Bennier. Mr Bennier is dead, but his wife, Laurel gave evidence on behalf of the Commonwealth. The Benniers were only at St Mary’s Hostel for about eighteen months. They arrived shortly after the Steeps left in November 1959 and resigned in May 1961. Mr William Wilson was a school teacher at the Hartley Street school in Alice Springs in 1957 and 1958. Although he had no recollection of Peter Gunner, Mr Wilson taught at the school at a time when Mr Gunner would have attended as a student.
Mr Leslie Wilson was, at the time of Mr Gunner’s removal from Utopia, the Superintendent of the Bungalow Settlement in Alice Springs. The Bungalow was a Settlement for Aboriginal people who were visiting Alice Springs for a variety of reasons. There was evidence in the trial that Peter was taken to the Bungalow from Utopia before going to St Mary’s. Mr Les Wilson had spent some thirty years with the Native Affairs Branch, first as a stockman at Haasts Bluff and later as a Superintendent of Native Settlements at various places, including Haasts Bluff, Yuendumu, the Bungalow at Alice Springs, and Bagot Reserve at Darwin. As I have already indicated, Mr Kevin Constable gave evidence in which he denied the allegations of sexual impropriety. His wife, who had also worked at St Mary’s, gave evidence too. Next, the Commonwealth called Mr Geoffrey Kelly. Mr Kelly is a private investigator whose firm had been engaged by the Commonwealth to locate potential witnesses for the trial. He and members of his staff, including a Miss Kathy Chase, investigated the applicants’ claims and interviewed witnesses and potential witnesses. Mr Kelly was called to give evidence about the circumstances surrounding his interviews with Mrs Dora McLeod and his involvement in the preparation of an affidavit that she swore for the purposes of these proceedings – as I do not intend to rely on the contents of Mrs McLeod’s affidavit or her oral evidence, I do not find it necessary to examine Mr Kelly’s evidence.
The remaining witnesses fell into the third group to which I have referred. First of all, there were three former patrol officers: Mr Creed Lovegrove, Mr Jeremy Long and Mr Colin MacLeod.
Mr Creed Lovegrove was seventy-two years of age when he gave evidence on behalf of the Commonwealth in this trial. Even though he did not know either Mrs Cubillo or Mr Gunner as children, it was his work as a patrol officer in the 1950s that was of interest and his evidence on that subject was of assistance to the Court. After completing his secondary schooling at a boarding college in Adelaide, Mr Lovegrove returned to the Territory and obtained clerical employment and then work as a chainman on a survey gang with the Northern Territory Administration. Whilst engaging in survey work, he met Mr EC (Ted) Evans, then a patrol officer with the Native Affairs Branch, and a lifelong friendship followed. Mr Evans, who let the young Mr Lovegrove accompany him on short, weekend patrols over a period of twelve to eighteen months, was responsible for Mr Lovegrove ultimately becoming a cadet patrol officer in 1951. Mr Lovegrove’s first patrol was under the tutelage of Mr Evans; they spent about three months in the Victoria River district. Thereafter, he worked alone as a patrol officer or as the officer in charge of an Aboriginal Settlement in and about the Darwin area until he was posted to the Alice Springs Branch in mid 1953. Other patrol officers who were based at Alice Springs while Mr Lovegrove was there included Harry Kitching, Billy McCoy, Brian Greenfield and George Holden. Ted Evans was then the District Superintendent at Alice Springs.
Mr Lovegrove was stationed at Alice Springs for about two years. During that time, most of his patrols were to the west of the Stuart Highway. As a result, he never visited Utopia Station, although he did subsequently visit it in the late 1960s and again in the late 1970s. In 1955, Mr Lovegrove was posted to Elliott as a patrol officer; he took over from Les Penhall. From that base, his duties required him to carry out inspections of the cattle stations on the Barkly Tablelands and in the Borroloola area. While he was stationed at Elliott, Mr Lovegrove, along with other patrol officers in other locations, had to carry out a census of full blood Aboriginals so that a Register of wards could be compiled to comply with the requirements of the new Welfare Ordinance 1953 (NT).
After his posting at Elliott, Mr Lovegrove was appointed, in 1957, Superintendent of the Bagot Native Settlement in Darwin. Whilst at Bagot, he got to know some of the staff at Retta Dixon, including Miss Shankelton, but it is clear from his evidence that his contact was not, in any sense, official or formal. As he described it, the contact was “neighbourly”. By this time, Lorna Nelson had already left the Retta Dixon Home. After Bagot, Mr Lovegrove was appointed, in 1958, Superintendent of the newly established Warrabri Settlement (now called Ali Curung). Mr Lovegrove described Warrabri as “the first big full-blood settlement” to cope with the new policy of assimilation, the policy which he described as “the policy of providing a full education for Aboriginal children and training for older people”. In describing it, Mr Lovegrove talked of “a whole new settlement. [Y]ou know, buildings, water supply, schools, hospital – all that sort of thing”. Mr Lovegrove said that the Settlement was about 100 miles south of Tennant Creek and on the eastern side of the Stuart Highway. It was peopled by members of the Warumungu and the Warlpiri who had previously been located at Phillip Creek. These events, of which he was talking, would have occurred some eleven years after the removal of Lorna Nelson and the other part Aboriginal children from Phillip Creek. According to Mr Lovegrove, he estimated that there would have been about 500 Aborigines at Warrabri and a white population of twenty to thirty people.
After his time as Superintendent at Warrabri, and another year as Superintendent at Bagot, Mr Lovegrove was appointed the Acting District Welfare Officer in Darwin. This was sometime in 1961. Mr Lovegrove was uncertain whether his duties at that time included the Retta Dixon Home. His uncertainty was caused because, as he said, changes were occurring in 1961: the Welfare Branch was being reorganised and professional social workers were being employed. Mr Lovegrove named the welfare officers who worked in Darwin under his supervision at that time. One of them was Mrs Mamie Merlin, who I have earlier identified as Mrs Moy. From 1963 to 1968 Mr Lovegrove was the District Welfare Officer at Alice Springs. Whilst he was there, Sister Eileen and Mrs Ballagh worked as welfare officers under his supervision; he was then promoted to Assistant Director, Southern Division and in 1971 became the Chief Welfare Officer in Darwin. At that level, his duties included responsibility for patrol officers, including their training, and liaising with other administrative departments. From 1973 to 1977 he was Director of Aboriginal Affairs for the Northern Territory and, as such, a member of the Northern Territory Legislative Council and the Administrator’s Council. In 1977 he accepted a secondment to the Northern Territory Government and took up the office of Deputy Director-General of the Department of the Chief Minister, a position that he held until 1982. There then followed appointments as Secretary of the Northern Territory Department of Mines and Energy and Chairman of the Committee for the Constitutional Development of the Northern Territory. Mr Lovegrove was awarded an MBE for his work in the Advancement of Aboriginal Welfare.
In the course of describing the duties of a patrol officer, Mr Lovegrove made the comment that the officers often faced a “hostile environment”. The patrol officers had to inspect the cattle stations; this meant checking that correct wages were paid to the Aboriginal employees, checking that proper facilities were provided for them, checking that the stations were making correct claims for subsidised payments and generally acting in a manner that some pastoralists regarded as intrusive. As Mr Lovegrove said:
“We were often referred to in the pastoral areas as brolgas, which meant native companions.”
He went on to explain that it was meant as a derogatory remark but he added “most patrol officers wore that brand with a great deal of pride actually”. I have taken time to recount this passage in Mr Lovegrove’s evidence because it typifies the man. As he gave his evidence and as I had the chance to listen to him and observe him, I came to realise that I was listening to a man who had dedicated the greater part of his working life to the betterment of the Aboriginal people. I am happy to accept his evidence, without qualification, as his personal experience, understanding and perception on matters of both policy and practice.

Mr Lovegrove said that he has had a close association with Aboriginal people virtually since his birth. His father had been a policeman in the Territory and, because of that, Mr Lovegrove and grown up with the Aboriginal trackers; he also gave instances of his friendships, as a young boy, with Aboriginal children. He understood the love and affection that Aboriginal people gave to their children and he knew that, through the kinship system, that love and affection extended to uncles, aunts and grandparents. He also knew of the importance of land to Aboriginal people and he knew of the distress and emotion that had been caused by the removal of part Aboriginal children from their mothers. It was his evidence that he never, as a patrol officer, took a child away; he had only read accounts of children’s removals.
Mr Jeremy Long was born in 1932 and was aged sixty-seven at the time when he gave his evidence. He was educated at the University of Sydney where he obtained a Bachelor of Arts with honours majoring in history. As part of his course, he completed two years of study in anthropology. In January 1955, he commenced work, under Mr Giese, as a graduate clerk in the Welfare Branch of the Northern Territory Administration in Darwin. At that time, Mr Milliken was the Assistant Director of Welfare. Later in 1955, Mr Long became a cadet patrol officer; he was posted to Alice Springs where he initially worked under the supervision of patrol officer George Holden. In 1956, he attended and completed the twelve month course at the Australian School of Pacific Administration, returning to Alice Springs to continue working as a cadet patrol officer. At that time, Sister Eileen and Mrs Ballagh were welfare officers, working out of the Alice Springs office.
Mr Long was promoted to patrol officer and later, in 1958, he was appointed Superintendent of the Haasts Bluff Settlement. After a period in Canberra as a ministerial private secretary, Mr Long returned to Darwin in 1960 where he was engaged in work as a research officer in the Welfare Branch. His particular task was to examine the “social situation of Aboriginal people”. Mr Long continued his research work until 1968 when he was transferred to the Department of the Interior in Canberra. In that intervening period he visited remote Aboriginal communities, studying the demographic situation and making predictions about population growth and the needs of the communities. In 1966, he, together with Mr Ted Evans, received from the Royal Geographical Society in London, the Mrs Patrick Ness Award for investigations among Aboriginals living in remote desert areas of Central Australia. Based on his research, he published articles in journals on aspects of the social and cultural changes among Aboriginal communities, but the main outcome of his research was a book that he published in 1970: Aboriginal Settlements; a survey of institutional communities in Eastern Australia, Canberra, Australian National University Press, 1970. Upon the establishment of the Department of Aboriginal Affairs, Mr Long transferred to it in January 1973 as the First Assistant Secretary, Policy. In 1975 he was promoted within the Department to the position of Deputy Secretary, a position that he held until 1982 when he was appointed a Commissioner for Community Relations with the Human Rights Commission. Mr Long retired from the Commonwealth Public Service in 1987 and, since then, he has worked as a consultant and author.
Mr Colin MacLeod, who is now a magistrate in Victoria, joined the Northern Territory Administration as a cadet patrol officer in late 1955. In the following year he completed the twelve month course for patrol officers at the Australian School of Pacific Administration. In due course he was promoted to patrol officer and ultimately left the Administration in early 1959. It was during his last year as a patrol officer that he commenced his studies in law by correspondence.
Then there were four former officers of either the Native Affairs Branch or the Welfare Branch. They were Mr Ted Milliken, Mr Ray Vincent, Mr Harold (“Martin”) Ford and Mr Fred Gubbins.
Mr Edwin Percival (Ted) Milliken, who was aged eighty-one when he gave his evidence, still carries on practice as a clinical psychologist at Parap in Darwin. Whilst serving in the Navy during the Second World War, he completed his tertiary studies, obtaining from the University of Queensland Bachelor degrees in Commerce and Arts, majoring in psychology. He served out his time in the Navy as a psychologist. Upon his discharge from the armed services, Mr Milliken obtained employment in the Commonwealth Public Service. He was first posted to Brisbane and then to Adelaide. In October 1955, while still in Adelaide, he applied for and obtained the newly created position of Assistant Director of Welfare in the Northern Territory Administration. Mr Giese was then the Director of Native Affairs. Mr Milliken commenced his duties with a three week orientation course at Alice Springs before going to Darwin. Personnel in the Alice Springs office at that time included Arch Richards, the District Welfare Officer, and patrol officers Harry Kitching, George Holden and Billy McCoy. Mr McCoy later replaced Mr Richards as the District Welfare Officer at Alice Springs in early 1956. Jeremy Long and Colin MacLeod were patrol officers in Darwin and Creed Lovegrove was acting as Superintendent of the Bagot Settlement when Mr Milliken arrived in Darwin. According to Mr Milliken, the Welfare Branch recruited Mr Babe Damaso and Mrs Moy as welfare officers for Darwin in 1955 and Sister Eileen and Mrs Ballagh as welfare officers for Alice Springs in 1956. At that time, there were also four District Welfare Officers: one each at Darwin, Katherine, Tennant Creek and Alice Springs.
As the Assistant Director, Mr Milliken was second in line to Mr Giese and took over as the Acting Director when Mr Giese was absent from his office. Mr Milliken stayed in the Administration until 1973 when he left to join the institution which was then known as the Community College and which is now the Northern Territory University; he took up the position of head of the Department of Humanities and Social Sciences and was the senior lecturer in Psychology. He ceased his teaching career in 1984 and has, since then, limited himself to his private practice as a clinical psychologist. When Mr Milliken took up his appointment as the Assistant Director of Welfare in Darwin in 1955, the Welfare Branch was accommodated in a Sydney Williams hut which, as he said had:
“no lights, no electricity, fans or anything, but it did have ventilation because the walls didn’t come down to the floor. And also there was no ceiling, so where the eaves actually went out of the top of the walls, you had – you were able to get air circulating through it.”
Mr Milliken said that ten staff were accommodated in a hut measuring twenty feet by eighty feet. It need hardly be said that such conditions would not be tolerated today but that was indicative of the standards that people in Darwin experienced ten years after the end of the Second World War. In considering the quality of the premises and facilities at the Retta Dixon Home and at St Mary’s during the time that Mrs Cubillo and Mr Gunner were there, it will be necessary to bear in mind that their quality must be evaluated against the standards that were operating at the time. Mr Milliken spoke very highly of Mr Giese; he said of him:
“… I would think that I have not in my life met a more committed or dedicated man to his job.”
Mr Ivan Leonard (Ray) Vincent, a qualified social worker, was eighty-seven years of age when he gave evidence. He had occupied the position of Administrative Officer General Welfare in the Welfare Branch from September 1958 to December 1961. By the time of his arrival, Lorna Nelson had already left the Retta Dixon Home and Peter Gunner had already moved into St Mary’s. Mr Vincent had no recollection of either of them.
Mr Martin Ford, who was the Director of the Department of Aboriginal Affairs at the time of his retirement, was aged seventy-eight when he gave evidence in these proceedings on behalf of the Commonwealth. In June 1940, at the age of nineteen, Mr Ford obtained a position with the Northern Territory Administration in Darwin as an assistant stores clerk in the accounts branch. After four years service in the Army, he returned to that position in 1946. In May 1954, he joined the Native Affairs Branch as the acting chief clerk. In September 1954, with the pending establishment of the Welfare Branch, his title was changed to acting administrative officer; this did not, however, involve a change in any of his duties. His position was made permanent in 1956. He progressed to become the assistant Director of Welfare Services and, thereafter, the Director of Executive Services in the Welfare Division. In 1972, the Welfare Branch was abolished and the Department of Aboriginal Affairs was created. Initially, Mr Ford was an assistant Director, then the acting Director, and finally the Director of the Department.
Mr Frederick Andrew Gubbins and Mr Les Penhall were brothers-in-law; they had married sisters. Unlike Mr Penhall, and through no fault of his own, Mr Gubbins was not able to give assistance to the Court. He had served in the Native Affairs Branch, first, as a patrol officer in Darwin and later in Alice Springs from 1942 to 1948, leaving the Territory at the age of twenty-five to return to Adelaide with his wife and family. During his time in the Branch, apart for a short period in the Army, his duties were initially clerical; later, however, he had some face-to-face contact with Aboriginal people. The main part of the work was survey work, looking for sites, or alternative sites, for Native Settlements. That included looking for an alternative permanent settlement to replace the Phillip Creek Settlement, although none was found during his time.
The Commonwealth called Dr Neville Green, an educational historian, to give expert evidence about the development and availability of educational facilities for Aboriginal and part Aboriginal children in the Northern Territory. He trained as a teacher obtaining degrees in Arts and Education from the University of Western Australia and a Masters degree in Education from that University in 1987; the substance of his thesis was the impact of government policies on education in an Aboriginal community in the Kimberley between 1912 and 1978. In 1991, his University admitted him to the Doctor of Philosophy for his thesis that traced the pastoral history and the violent encounters in the North West Kimberley that culminated in the Forest River Massacres of 1926. In addition to his academic background Dr Green has also had extensive practical experience as a teacher in Aboriginal schools and as a lecturer in Aboriginal history and education at the Edith Cowan University. The Commonwealth called Dr David Bell; he is a psychiatrist who interviewed both Mrs Cubillo and Mr Gunner at the request of the Commonwealth. The final witness for the Commonwealth was Ms Elizabeth Lajos. She was an instructing solicitor for the Commonwealth. She filed several affidavits containing information about dead and missing people, some of whom might have been potential witnesses in the trial.
Deceased and missing “witnesses”
During the course of the trial, several people were referred to who, if they were still alive, would probably have given evidence in the trial. The more significant of those people were, in the case of Mrs Cubillo, her grandmother Alice and her adoptive mother Maisie. Mr Gunner’s mother, Topsy would have been a very important witness for his case. Turning then to the Commonwealth, they have lost the opportunity of calling numerous former senior public servants as well as some former members of the staff of the Retta Dixon Home. I set out hereunder brief details of the various individuals.
The Administrators of the Northern Territory who had the potential to be important witnesses in this trial, all of whom are dead, were as follows:
·Mr CLA Abbott. He held office from 29 March 1937 to 30 June 1946. Although his term of office expired before Lorna Cubillo and the other children were removed from the Phillip Creek Settlement, he could have given evidence about the existence and the implementation of any policy concerning part Aboriginal children that existed throughout his term of office;
·Mr AR Driver. He held office from 1 July 1946 to 30 June 1951. He, of course, would have been most important because he was in office at the time of the removal of the Phillip Creek children. He could have also picked up from Mr Abbott, explaining whether there had been any changes in policy or any changes in the implementation of policy;
·Mr FJS Wise. He held office from 1 July 1951 to 30 June 1956. His term saw out the last part of Mrs Cubillo’s residence at the Retta Dixon Home and the start of Mr Gunner’s stay at St Mary’s. His recommendations led to Sir Paul Hasluck’s 1952 policy on the removal of part Aboriginal children; and
·Mr JC Archer. He held office from 1 July 1956 to 31 March 1961.
Mr EWP Chinnery arrived in Darwin to take up duty as the Director of Native Affairs on 18 April 1939. At that time, the Native Affairs Branch had not been divorced from the Medical Branch nor had any separate staff been appointed. On 10 May 1939, the Branch became a separate organisation and, with a new staff, it established headquarters in “Sion House” in Darwin. Mr Victor George Herbert Carrington was Acting Director of Native Affairs during Mr Chinnery’s term of office. Commencing on 29 September 1944, Mr Carrington remained as Acting Director until 21 October 1946. During that time, Mr Chinnery acted as Commonwealth Adviser on Native Affairs. Mr Vincent John White was also Acting Director of Native Affairs for some period in 1944. A letter exhibited to the further supplementary affidavit of Ms Lajos dated 27 September 1999 from Mr White as Acting Director to the Administrator was illustrative of that fact. The end of Mr Chinnery’s appointment as Director was gazetted on 28 November 1946 in the Commonwealth of Australia Gazette No 225. Pursuant to s 4 of the Aboriginals Ordinance 1918-1943, Mr Victor Johnson, Minister of State for the Interior, approved the retirement of Mr Chinnery as Director and appointed Mr Francis Herbert Moy in his stead from 14 November 1946.
Mr FH Moy was the Director of Native Affairs at the time of the removal of the part Aboriginal children from the Settlement at Phillip Creek. Notwithstanding the extensive evidence in this trial, the question persists: why were the children removed from Phillip Creek? Mr Moy might have been able to answer that question or, at the very least, might have been able to provide some information about the circumstances surrounding the removal of the children. Yet, curiously, neither the applicants nor the respondent could produce a single document in respect of that removal. The only document before this Court was an article authored by Miss Shankelton about her talking to the mothers prior to the transfer. That article appeared in a newsletter called “AIM” that was published by the Aborigines Inland Mission. Within the period of Mr Moy’s term of office Mr CR Stahl was Acting Director for a short period from 20 December 1951 to 19 February 1952.
An extract from the Commonwealth of Australia Gazette, No 33 dated 28 May 1953 indicates that the Minister of State for Territories, the Hon Paul Hasluck MP, (as he then was) approved the termination of the appointment of Mr Moy as Director of Native Affairs for the Northern Territory from 21 May 1953 and the appointment of his successor Mr Reginald Kevin McCaffery as Acting Director commencing the following day, 22 May 1953. Mr McCaffery had earlier been appointed Acting Director for a short period from 17 October 1949 to 30 January 1950 during the absence of Mr Moy on recreation leave. Mr McCaffery was brought from Alice Springs to Darwin to take over the duties of Mr Moy as Director. He had joined the Commonwealth Public Service in 1948 as the District Superintendent of Native Affairs at Alice Springs, having previously been a member of the Northern Territory Public Service from January 1935. He remained Acting Director of Native Affairs until 25 November 1954 when the Minister of State for Territories approved the termination of his appointment and the new appointment of Mr Harry Giese, effective from 26 November 1954 as Director of Native Affairs. That notice of termination and appointment appeared in the Commonwealth Gazette, No 70 on 18 November 1954.
During the course of Mr Giese’s term as Director of Native Affairs his office was renamed Director of Welfare when the Native Affairs Branch became the Welfare Branch. Consequently, Mr Giese became the Director of Welfare. During Mr Giese’s term as Director, Mr Ted Milliken was Assistant Director Welfare Branch and in Mr Giese’s absence, he was the Acting Director of the Welfare Branch. Mr Harry Giese was the Director at the time of Mr Gunner’s removal and he remained in that position for the duration of the period relevant to these proceedings. Accordingly, the Court could have been assisted by his evidence. A substantial amount of written material that had either been prepared by him or directed to him was tendered in evidence. That material, helpful though it was, was no substitute for Mr Giese’s oral evidence. Mr Giese is still alive but because of his poor state of health he could not give evidence. Messrs. Chinnery, Carrington, White, Moy, Stahl and McCaffery are all dead. Within the context of these proceedings, the evidence has not suggested that either Messrs Carrington, White or Stahl would have been witnesses of critical importance. The same cannot be said of the others. Mr Moy and Mr Giese would have been most important – undoubtedly, the most important witnesses for the Commonwealth; and there was the potential for Mr Chinnery to have assisted the Court by explaining his understanding of matters of policy and its implementation with respect to part Aboriginal children when he handed over his directorship to Mr Moy less than twelve months before the removal of the Phillip Creek children. The documentary evidence revealed that Mr McCaffery was very concerned about various matters at the Retta Dixon Home. His evidence would have probably been very relevant.
The applicants accepted that Mr Giese was potentially a very significant witness; they also accepted that he was too ill to give evidence in November 1999 as the case for the Commonwealth drew to an end. Their complaint was that the Commonwealth could have and should have called him as a witness in August 1988 at about the time that Sister Eileen and Mr Kitching gave their evidence. That, I find, was an odd submission, considering that the applicants opposed the Commonwealth’s application to have the evidence of elderly witnesses taken before the commencement of the trial. Admittedly, the Commonwealth offered no explanation for not calling Mr Giese in 1998 as they had originally planned to do. However, I propose to make my assessment of the situation based upon the events of the trial and the circumstances that existed at the time of the trial. Upon that basis, Mr Giese, a person who had the potential to be a most important witness, was unable to attend Court and give his evidence. It is reasonable to assume that if these proceedings had been brought earlier, the chances of Mr Giese’s availability would have been substantially increased.
Prior to her marriage, Mrs Ballagh was known as Ms Rene Archer. She was a welfare officer employed in the Alice Springs office of the Welfare Branch between 1956 and 1963. In that capacity she made several inspections of St Mary’s Hostel and compiled her reports based on those inspections. They were consistently and harshly critical of the conditions at St Mary’s. She died on 26 July 1985.

The applicants argued that they having been removed to an institution, the Commonwealth was under an obligation to ensure that the institutions in which the applicants were placed, properly cared for their physical and mental well being. In support of this contention the applicants relied on what Sir Paul Hasluck had said when approving the 1952 statement of policy:
“Continued efforts are to be made to ensure that the children removed from their parents do, in fact, receive a full opportunity to learn to live after the European manner, and eventually to earn their living in the European community.”
The applicants submitted that both institutions failed to meet a standard that in any way could be described as reasonable. According to the applicants the failings in each institution were to the following effect:
·the institutions were unsuitable for the proper care of children;
·the physical conditions of the institutions were inadequate;
·the staffing and administration of the institutions were inadequate;
·the children lacked contact with their family and traditions;
·corporal punishment was administered excessively; and
·the children suffered from a lack of love and affection.
These were all emotive issues but there was a justification for complaining about many of them. Some I have already addressed, such as the evidence from Mrs Cubillo, Mrs Katona and Mrs Hill about a lack of love and affection. I am satisfied that they felt that absence. Yet evidence of other witnesses such as Sister Johnson, Mrs Treloar, Mrs Harris and Mrs Matthews tell a different story. I cannot make a finding of legal liability against anyone based upon some of the children reacting adversely to a perceived lack of love and affection. Regrettably, that is a human failing that can be found in families as well as in institutions. Corporal punishment was inflicted in both institutions in a manner that would not be tolerated today. However, putting to one side the conduct of Mr Walter and Mr Constable, I find that the evidence of corporal punishment was insufficient to bring down findings of fault. The conditions at St Mary’s Hostel were very poor throughout most of the time that Peter Gunner was there. The buildings and other improvements in both places were primitive on today’s standards but they should be compared with what existed in the Territory after the war. Cynical though it may be to some, the conditions at Retta Dixon Home were preferable to those at the Phillip Creek Native Settlement and St Mary’s, bad as it was, was better than life in a camp at Utopia. Mrs Kunoth-Monks made that clear, although I am conscious of the fact that she benefited from Sister Eileen’s presence at the Hostel. This aspect of the applicants’ claims suffered in another respect. No evidence was placed before the Court about living conditions in other hostels or institutions in Darwin or Alice Springs. Any willingness to condemn St Mary’s Hostel for the state of its facilities must be tempered by the realisation that there was no other place against which it could be compared save the native camp at Utopia. In European standards, with beds and bedding, covered roofs, ablution blocks, toilets, hot water and other basics, St Mary’s was better than what Peter left behind in Utopia even though St Mary’s facilities were the subject of ongoing criticism by officers of the Welfare Branch. Mr Worthy, during the course of his evidence drew comparisons between the Territory’s Welfare Branch and the Victorian Social Welfare Department, commenting that the Victorian body “had very strict control over both the Church and the Welfare bodies that ran the children’s institutions”. For my part, I do not believe that there would be any value in comparing the situation that existed in Victoria with that in the Northern Territory. Victoria was, at that time, far more advanced economically, politically and socially. A better comparison would have been one that looked at the Retta Dixon Home and St Mary’s on the one hand and other comparable institutions in the Territory, the Kimberley or Northern Queensland. Those areas, at that time, would have been more appropriate sources of comparison. The evidence did not warrant a finding that the conditions at the Retta Dixon Home were inadequate or below standard. However, despite the excuses that can be found for St Mary’s, I still think that it failed.
In my opinion, any damages that would flow in favour of Mrs Cubillo or Mr Gunner would arise, first, from the trauma of being forcibly removed from their families and their communities in circumstances where the children did not want to leave and the children were aware that their families did not want them to leave. If, therefore, those children were taken without lawful justification then, no matter how well-meaning the Director of Native Affairs might have been, if the action was not permissible, he committed a grave wrong that would sound in damages. Furthermore, that wrong would have been compounded many times over by the ongoing unlawful detention of the children. It would however, have been, principally, the act of detention that would have caused the children’s ongoing loss. I do not believe that the conditions of the premises in which they were detained would have played a great part in their loss. Their sense of loss was based on deprivation: they were deprived of their family, their community and their culture. Whether they were detained in reasonable or unreasonable conditions would have been of minimal importance when compared with the act of detention. If it be accepted, as the applicants claimed, that they suffered a loss of great dimensions by being removed and detained, it is, I think, reasonable to assume that no amount of love and affection would have adequately compensated them for their losses. It is in that context that I tend to think that the conditions of the institutions do not play a great part in the calculation of their losses.
The evidence has demonstrated that Mrs Cubillo will not recover from her injuries; those injuries may, from time to time, require treatment or counselling. I accept that Mrs Cubillo presented as a stoic woman, a woman who bears pain and injury internally with little complaint. However, that stoicism and lack of complaint do not reduce the significance of her injury and her pain nor do they reduce the extent of her damages. Those injuries and losses that she has suffered and will continue to suffer flow back to her removal and detention. I do not consider that their quantification will be dependent on the identification of the cause of action that might be found to exist in her favour. I believe that this observation applies with equal force to Mr Gunner.
I have made findings of fact in the case of Mrs Cubillo to the effect that the Director of Native Affairs played a part of significance in her removal from Phillip Creek and her subsequent detention at the Retta Dixon Home. However, I have made a finding of law that it was within the power of the Director to so remove and detain her if “in his opinion, it [was] necessary or desirable in the interests of [Mrs Cubillo] for him to so do”: see subs 6(1) of the Aboriginals Ordinance. I have then made a finding of fact that the evidence does not reveal whether the Director formed any opinion about Mrs Cubillo at all. There was no evidence about the extent of the knowledge of the Native Affairs Branch about the part Aboriginal children at Phillip Creek. To make a finding in favour of Mrs Cubillo, I would have to assume either that the Director made a decision that Lorna would be removed without having applied his mind to the reason for her removal, or that he formed an impermissible opinion as to why she should be removed and detained. Another possibility is that I would have to accept the submission that was advanced by Mrs Cubillo’s counsel to the effect that any opinion that the Director might have formed was so unreasonable that no reasonable person would have formed it.
There was an onus on Mrs Cubillo to prove either that the Director did not form an opinion as required by subs 6(1) or that any opinion that he did form was not one that was in her interest; save for the question of false imprisonment, there was no obligation on the Commonwealth to prove that the Director did form a lawful opinion. Mrs Cubillo did not satisfy that onus. So much time has passed, so many people have died, so many documents are missing that it is not now possible to know what motivated the Director of Native Affairs to participate in the removal and detention of Lorna and the children from Phillip Creek.
The medical diagnoses of Mr Gunner are so similar to that of Mrs Cubillo that I feel that it is sufficient to say that, prima facie, his entitlement to damages is much the same as Mrs Cubillo’s. There are differences of course; he is several years younger and he has commenced a successful return to his tribal community. Although he suffered severely at the hands of Mr Constable, he did not, I feel, suffer to the same extent as Mrs Cubillo. However, the checks and balances are such that I find it difficult to distinguish their end entitlements save in one important area. Any award to which Mrs Cubillo would be entitled would have to reflect, against her interests, her total failure to make any attempt to return to her Aboriginal lifestyle. The opportunity for her to do that has been available to her as it was available to Mr Gunner. He chose to grasp the opportunity; Mrs Cubillo has failed to do so.
In determining the awards of damages, I consider that account must be taken of the fact that neither applicant has, at any time, sought treatment for her or his injuries. The only occasions on which medical advice has been sought were in relation to the provision of medico-legal opinions for the purpose of pursuing their claims against the Commonwealth. The applicants have taken no steps to mitigate their losses by seeking medical assistance; in so far as they might claim that they did not know that they each had a psychiatric condition until informed of that fact in late 1996, their lack of knowledge cannot be blamed on the Commonwealth. As to their conduct consequential upon being told that they had a psychiatric condition, neither led evidence of seeking medical treatment in the interval prior to trial and neither gave evidence that it is likely that she or he would seek such treatment in the future.
Since returning to Utopia in 1991, Mr Gunner has regularly attended the Urapuntja Health Service. His extensive records from the Health Service were tendered in evidence: Ex A31. They contain nothing that points to him having sought medical treatment with respect to the psychiatric injuries that were first diagnosed in 1996 and Mr Gunner did not suggest that he has undertaken any medical treatment in an attempt to ameliorate his injuries.
In coming to my assessment of the likely damages that might have been awarded to the applicants, the question arose whether there should be an off-set for the benefits that may have flowed to each of the applicants as a result of their separation from their tribal backgrounds. It might be thought that both Mrs Cubillo and Mr Gunner have acquired attributes or talents or benefits that they would not – or might not – have acquired but for their removals and detentions. They may not have wanted those talents; indeed many of them, such as mundane and routine matters like language, dress, hygiene and etiquette, were forced on them. But the fact remains that, as members of the larger Australia-wide society, it could be said that they have attributes that they would not otherwise have had. There is nothing usual in that situation; after all many a person might complain that education, or some aspect of it, was forced on him or her in childhood. But few, as adults, would complain about the benefits of the education that they received against their will. Furthermore, the applicants have used those attributes – Mrs Cubillo advanced herself in the workforce to a point where she was able to embark on university studies. Mr Gunner was able to assist his fellow Aboriginal and part Aboriginal people by working in legal aid and, later, by taking on the Chairmanship of his local Aboriginal community. The question then is whether their damages should be reduced by giving some recognition to the fact that each of them, in varying degrees, picked up skills and knowledge that were of value to them in later life – skills and knowledge that would not otherwise have been acquired to the same extent if they had remained members of their tribal groups. Each learnt to speak English, albeit that the price that they paid was to lose their native tongue. Each received schooling: Mrs Cubillo profiting more than Mr Gunner. Each was able to enter the European workforce and earn money: again Mrs Cubillo being the more successful of the two. Should the acquisition of those skills be ignored or should they be taken into account when assessing their damages. As this issue was not addressed by either counsel, I will do no more than say that I have made no deduction for any such collateral benefit. In coming to that decision I had regard to the decision of the High Court in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 where the value to an injured plaintiff of an invalid person was disregarded in the calculation of his damages. That decision was followed by the South Australian Full Court in Lee v Redding (1981) 28 SASR 372: affirmed on appeal Redding v Lee (1983) 151 CLR 117.
A further complicating factor is the need to determine what it is that the applicants have lost. For example, the sisters Napanangka and the sisters Napurrula were presented as Aboriginal women who still follow an Aboriginal lifestyle and participate in Aboriginal culture. I accept that presentation as a substantially accurate presentation of the personal circumstances of those four witnesses. But it is not totally accurate because, as part of an evolutionary process, those women, and no doubt, countless others like them, have taken up and embraced some aspects of western culture. Some of them live in conventional houses in Tennant Creek, Eileen Napanangka teaches Aboriginal culture in a western style school; Lena Pula has travelled the world as a result of her batik artistry. The evidence in this trial did not disclose whether tribal life, in its pure and original form, continues to exist.
The awards of damages to which either of the applicants might have been entitled can only be assessed on a broad axe premise. The applicants merely advanced a global sum. No claims for past or future special damages were made; no claims for past or future care were made. Abadee J thought that a figure of $50,000 would have been an appropriate amount for general damages in Williams v Minister [No 2]. However, that was a case where the child had been placed in care at the request of her mother. My assessments must be based on non-consensual removals. I would have allowed Mrs Cubillo an amount of $110,000 and Mr Gunner the sum of $125,000.
An award of damages, although reflecting the conduct that justified the award, is to be computed in terms of money values at the date of judgment. Although a successful applicant might well expect to receive an entitlement to interest on top of any award, it must be remembered that the circumstances of the two applicants are most unusual. The conduct of which they complained started in 1947 and 1956 respectively. In the case of Mrs Cubillo it ceased in 1956; Mr Gunner’s ceased in early 1963. Hence the greatest part of their pre-trial detriment was suffered before their writs were filed in October 1996. It would be within my power to date the commencement of interest back to the date of the occurrence of the relevant events but I see no reason to burden the Commonwealth because of the applicants’ delays. If interest dated from the occurrence there would be a need to reduce substantially the amount of interest to take into account the fact that the applicants’ detriments would have been suffered progressively. However, where, as here, interest is allowed only from the dates of the issues of the writs, and the greater part of the detriments were sustained prior to that date, there is no sound basis for making that sort of deduction. I would allow Mrs Cubillo a lump sum of $16,800 for interest; that sum has been based on a calculation at the rate of 4 per cent for a period of a little less than four years. For Mr Gunner, the figure for interest, calculated in the same manner would be $19,100.
On this basis I would have calculated Mrs Cubillo’s notional damages at $126,800 and Mr Gunner’s at $144,100.
Exemplary Damages
In written submissions, counsel for the applicants stated:
“It was recognised by senior counsel for the Commonwealth that if the Court were to find false imprisonment then the Court would make a substantial award of damages and that there would be no reason why there would not be an award for exemplary damages in those circumstances.”
That statement did not accurately record what counsel for the Commonwealth had said during the course of his oral submissions. The thrust of counsel’s concession was limited to making allowance for an adverse finding that the Commonwealth had acted pursuant to some arbitrary, uncaring policy. The substance of what counsel for the Commonwealth said was as follows:
“If you were satisfied that there was false imprisonment … pursuant to a policy of the Commonwealth described as they describe it … that would amount to a substantial award of damages … It is an award of damages which would probably include exemplary damages.”
The object of exemplary damages is punishment and deterrence. They should not be awarded where they do not serve that purpose: Halsbury’s Laws of Australia Vol 9 par [135-495] and the authorities referred to therein. There is no jurisdiction to award exemplary damages in equity: Hospital Products Ltd v United States Surgical Corporation at 109. Such an award may only be made at common law, and then, only in the torts of false imprisonment and negligence.
In pursuing their claim for exemplary damages the applicants have submitted that an award would be justified where the conduct of the Commonwealth, or, the conduct for which the Commonwealth was liable, was arrogant or disgraceful or where a person has been treated with a contumelious disregard for that person’s welfare or rights. However, as I have already indicated, I reject any submission that the impugned conduct can be so described.
The expression “contumelious disregard” comes from the judgment of Knox CJ in Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 where his Honour referred to “conscious wrong doing in contumelious disregard of another’s right” as the basis for an award for exemplary damages: at 77. Brennan J explained the purpose of any award for exemplary damages in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984) 155 CLR 448 at 471 saying:
“As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey (128 ER 761) substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage. Gibbs CJ saying:
‘I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’”

The expression, “contumelious disregard”, was used by the High Court in Gray v Motor Accident Commission (1998) 196 CLR 1 (per Gleeson CJ, McHugh, Gummow and Hayne JJ) to describe “at least the greater part of the relevant field”: at 7. The appellant, Gray, was seriously injured when he was struck by a car that had been driven at him deliberately by a man called Bransden. Bransden was convicted of causing grievous bodily harm with intent to cause grievous bodily harm to Gray and was sentenced to seven years’ imprisonment. The sentencing judge described the attack as “brutal and cowardly” and one for which there was “no mitigating factor at all”. Gray sued Bransden’s third party insurer claiming damages for personal injuries caused by Bransden’s negligence. The trial judge awarded Gray damages, but he declined to make an award of exemplary damages on the ground that Bransden had already been punished in the Criminal Court. Gray appealed unsuccessfully to the Full Court of the Supreme Court of South Australia and thereafter, by special leave, to the High Court. The High Court allowed the appeal on the ground that the award of general damages was manifestly inadequate but declined to allow anything for exemplary damages; it concluded that the purpose for awarding exemplary damages had been wholly met by the substantial punishment that was imposed in the Criminal Court.
Gleeson CJ, McHugh, Gummow and Hayne JJ said at 7:
“[15] In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it.”
The High Court emphasised the exceptional nature of the remedy and the difficulty of allowing it where mere negligence is the issue at 9-10:
“[20] If, as we have earlier suggested, the remedy is exceptional in the sense that it arises (chiefly, if not exclusively) in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights, at least two further questions arise: are exemplary damages available where the plaintiff’s claim is for damages for negligence rather than some intentional wrong, and is the award of exemplary damages a matter of right or does it depend on the exercise of a discretion informed by some identifiable criteria?
…
[21] Provoked by differing limitation periods for claims for damages for personal injury caused by negligence and other torts, there was a deal of debate in the 1960s about whether trespass to the person could be committed negligently.
[22] We do not think it necessary to revisit that debate. No question arises here of an intentional wrong being committed by inadvertence. For present purposes it is enough to note two things. First, exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind. No doubt other examples can be found.
…
[24] Secondly, the present proceeding, although said to have been framed as an action in negligence, appears to have been conducted at trial as if it were a claim in trespass. The allegation made in the appellant’s statement of claim, and pursued at trial, was that Bransden drove his vehicle ‘deliberately towards [the appellant] without regard for the safety of [the appellant]’ and such evidence of the events as was given at trial was all directed to showing Bransden deliberately inflicted injury on the appellant. Whatever may be the true characterisation of the pleading, the case was conducted as one of conscious wrongdoing by the tortfeasor.” (footnotes omitted)
It is not sufficient for a court merely to disapprove of the conduct: exemplary damages should be awarded only for “the more flagrant instances of conscious wrongdoing”: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 212 per Windeyer J. A court should display restraint and moderation before making such an award: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd at 463 per Gibbs CJ, at 464 per Mason J, and at 465 per Wilson J.
Even if, on appeal, it be found that the Commonwealth is liable to either one or both of the applicants for damages for any cause of action, I do not consider that either applicant has made out a case for exemplary damages.
Each further amended statement of claim also referred to a claim for aggravated damages. I do not consider that the facts of these two cases would justify such an award. If it were to be found, contrary to the findings that I have made, that a cause of action exists giving rise to an award of damages, the most that could be said against the Commonwealth or the Directors was that there had been failures to act within the strict parameters of the legislation. It could not be said, on the evidence that was adduced in these proceedings, that either removal was motivated by ill-will or by disregard for the welfare or the interests of the child.
Counsel for Mrs Cubillo claimed that the Commonwealth’s conduct in removing her from Phillip Creek was inhumane but that submission failed to recognise that Mrs Cubillo and the Commonwealth were unable to lead any evidence that would explain the purpose or the motive or the intention of the Director in removing her. Although in an assessment for damage for false imprisonment, due regard must be had to the sufferings of the victim, the purpose of the award is punishment of the defendant for its conduct. It is, then, always necessary to make findings of fact about that conduct. Mrs Cubillo was, in effect, asking the Court to impute improper motives to the Commonwealth. That I am not prepared to do. Mr Gunner’s position is no different; I am not prepared to impute improper motives to the Commonwealth.
The applicants have abandoned any allegation that the policy of the Commonwealth was not authorised by the Ordinances. It cannot therefore be said that the Commonwealth was, by the formulation of its policy, engaged in a conscious wrongdoing, in contumelious disregard of the applicants’ rights; since the policy was in accordance with the law, there was no wrongdoing in its formulation – or, as the Commonwealth submitted, the applicants had no right to be left free of interference. The applicants only argued that it was the implementation of that policy that led to the unlawful results. That meant that the applicants not only have to prove that those responsible for the implementation of the policy acted in contumelious disregard of the applicants’ rights, they must also prove, either that the Commonwealth is vicariously liable for that conduct or that the Commonwealth required or permitted those responsible to implement its policy in an impermissible way.
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.
I am satisfied that the applicants in these proceedings have suffered the psychiatric illnesses that they have pleaded in their respective further amended statements of claim. For them to succeed against the Commonwealth, it would be necessary to prove actionable negligence or breach of some other duty; they could only do that by proving the commission of operational acts or omissions that were done negligently by the servants of the Commonwealth in the course of carrying out a policy decision that the Commonwealth had taken in relation to each applicant. The view that I have reached in respect of both Mrs Cubillo and Mr Gunner, is that their damages have flowed from the policy decisions – and those decisions are not actionable because it has not been shown that they were carried out within the ambit of the legislation. It was the removal and detention as distinct from the manner of the removal and the manner of the detention that were the causes of the injuries that each of them suffered. Although it is not an absolute test, a pure policy decision where Parliament has entrusted the decision to a public authority is not something a Court would normally be expected to review: Barrett at 211 per Lord Slynn.
I reject any suggestion that either applicant is looking for a pot of litigation gold. I am satisfied that they have pursued their claims against the Commonwealth because they were advised by their advisers that they had claims that were justifiable. I have criticised many areas of Mrs Cubillo’s evidence and some areas of Mr Gunner’s but I accept the main thrust of their evidence about the hurt they suffered as a result of their removal and detention. However, at the end of the day I remain satisfied that the Commonwealth of Australia is not obliged, as a matter of fact and law to compensate them for their losses.
Each of the claims that have been made by Mrs Cubillo and by Mr Gunner must be dismissed. I will hear the parties on any question of costs.
SCHEDULE
The alleged breaches by the Commonwealth of its fiduciary duties as set out in par 36D of Mrs Cubillo’s further amended statement of claim:
In removing and detaining the Applicant, the Respondent acted in breach of the fiduciary duties owed to the Applicant.
Particulars of Breach of Fiduciary Duty
(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:
(i)destroy the associations and connections of the Applicant with her Aboriginal mother, family and culture;
(ii)assimilate half caste children, including the Applicant, into non-Aboriginal society;
(iii)provide domestic and manual labour for the European community of the Northern Territory; and
(iv)breed out “half caste” Aboriginal people and protect the primacy of the Anglo-Saxon community,
without regard to the Applicant’s particular circumstances.
(c)Failing to ensure that the role and duties of guardian of the Applicant were fulfilled 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)failing to supervise the institutions 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 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 non-aboriginal community of Australia.
(k)Failing to advise the Applicant of her rights in respect of leaving the care, custody and control of the Respondent and returning to her mother;
(l)Failing to advise the Applicant that she should obtain independent advice and to provide such resources as would enable her to obtain that advice.
See also par 57D of Mr Gunner’s further amended statement of claim.

I certify that the preceding one thousand five hundred and sixty-five (1565) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.
Associate:
Dated: 11 August 2000

Counsel for the Applicant: Mr TJ Rush QC
With him Mr MA Dreyfus QC and Ms M Richards

Solicitor for the Applicant: Holding Redlich (as agents for Northern Australian Aboriginal Legal Aid Service)

Counsel for the Respondent: Mr DR Meagher QC
With him Ms EJ Hollingworth, Dr MA Perry
and Ms C Beaton-Wells

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 3-4, 6-7 August 1998; 1-4 March 1999; 10-13, 16-19, 23‑24, 26-27, 30-31 August 1999; 1-2, 6-10, 13-15, 21-24, 27-30, September 1999, 1, 4-5, 18-22, 25-28 October 1999; 1-5, 8-12, 15-18, 22-26 November 1999; 21-25 February 2000 and 6-10, 13-17, 20, 22-24, 27-31 March 2000. Last of the written submissions received 10 May 2000

Date of Judgment: 11 August 2000

BETWEEN:	LORNA CUBILLO DG 14 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	11 AUGUST 2000
WHERE MADE:	DARWIN

BETWEEN:	PETER GUNNER DG 21 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	11 AUGUST 2000
WHERE MADE:	DARWIN

JUDGE:	O’LOUGHLIN J
DATE:	11 AUGUST 2000
PLACE:	DARWIN

Counsel for the Applicant:	Mr TJ Rush QC With him Mr MA Dreyfus QC and Ms M Richards
Solicitor for the Applicant:	Holding Redlich (as agents for Northern Australian Aboriginal Legal Aid Service)
Counsel for the Respondent:	Mr DR Meagher QC With him Ms EJ Hollingworth, Dr MA Perry and Ms C Beaton-Wells
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3-4, 6-7 August 1998; 1-4 March 1999; 10-13, 16-19, 23‑24, 26-27, 30-31 August 1999; 1-2, 6-10, 13-15, 21-24, 27-30, September 1999, 1, 4-5, 18-22, 25-28 October 1999; 1-5, 8-12, 15-18, 22-26 November 1999; 21-25 February 2000 and 6-10, 13-17, 20, 22-24, 27-31 March 2000. Last of the written submissions received 10 May 2000
Date of Judgment:	11 August 2000