Cubillo v Commonwealth (No 2)

In the case of Cubillo v Commonwealth (No 2), the applicants, Mrs Cubillo and Mr Gunner, sought compensation for their removal from their families and institutionalisation during the mid-twentieth century, alleging that these actions were part of a policy to assimilate part-Aboriginal children into the European mainstream. The case was heard by the Supreme Court of the Northern Territory, where the central legal issues revolved around whether the Commonwealth's actions were justified under the statutory powers available at the time and whether there was a breach of common law duties owed to the applicants. Additionally, the court had to determine if there were grounds for awarding exemplary or aggravated damages.

The court examined the historical context and prevailing beliefs during the period in question, acknowledging that there was a prevailing school of thought which supported the assimilation of part-Aboriginal children. The court found that while the motives of those involved may have been well-intentioned, they were misguided by modern standards, particularly in their failure to recognise the importance of Aboriginal culture. The evidence presented did not substantiate a claim that the actions of the Commonwealth officials exceeded their statutory powers or breached any common law duty. The court found no substance in any claim for exemplary or aggravated damages, as there was no evidence to suggest malice or reckless disregard for the applicants' rights.

In conclusion, the court ruled that the application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) was refused, and each claim was dismissed. The question of costs was reserved for further consideration. The decision underscored the legal constraints under which the Commonwealth officials operated, and while the court expressed sympathy for the applicants' suffering, it found that the actions taken were not beyond the statutory powers available at the time.

ORDERS:
1 The application for an extension of time under s 44(b) of the Limitation Act 1981 (NT) is refused and each claim is dismissed.
2 Any question of costs is reserved for further consideration.