Johnson v Department of Community Services and 2 Ors
[1999] NSWSC 641
•29 June 1999
CITATION: Johnson v Department of Community Services & 2 Ors [1999] NSWSC 641 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20729/97 HEARING DATE(S): 22 March 1999 JUDGMENT DATE:
29 June 1999PARTIES :
Christopher Johnson
(Plaintiff)Department of Community Services
(First Defendant)Minister for Community Services
State of New South Wales
(Second Defendant)
(Third Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr Tobin QC with Mr P Gray
Mr JA McCarthy QC with Mr Druitt
(Plaintiff)
(Defendants)SOLICITORS: Mr Panagoda of
Dr David Brown of
Carroll & O'Dea, Sydney
(Plaintiff)
Crown Solicitors Office
(Defendants)CATCHWORDS: Extension of time -ss 58(2), 60G & 60I Limitation Act; Aboriginal child made a Ward of the State ACTS CITED: Limitation Act 1969
Child Welfare Act 1939
Children (Care and Protection) Act
Guardianship of Infants Act 1940 (SA)CASES CITED: Williams v Aboriginal Land Rights Act 1982 & Anor (1994-95) NSWLR 497
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997)
Commonwealth of Australia v McLean (1996) 41 NSWLR 393
Do Carmo v Ford Excavations Pty Limited (1983) 153 CLR at 234
Harris v Commercial Minerals Limited (1995-96) 186 CLR 1
Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 155 CLR 129
Crayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ, unreported 22 August 1995)
Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (all unreported, NSWSC Badgery-Parker J 1 May 1997); Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998); Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998); Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995); Maloney v Commissioner of Railways (1978) 19 ALR 147 at 148; 52 ALJR 292 at 292-3; Youngman v Lawson 1 (1981) NSWLR 439; Wedd v Wedd (1948) SASR 104;
Sovar v Henry Lane Pty Limited (1966-67) 116 CLR 397
Stubbs v NRMA Insurance Limited (1997) 42 NSWLR 550 at 555
BHP Steel (AIS) Limited v Cinquegrana (NSWCA, unreported 3 September 1997)DECISION: See para 84
55
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
TUESDAY, 29 JUNE 1999
20729/97 - CHRISTOPHER JOHNSON v
JUDGMENT (Extension of time - ss 58(2), 60G & 60I
DEPARTMENT OF COMMUNITY SERVICES
& 2 ORS
Limitation Act - Aboriginal child made a
Ward of the State)
1 MASTER: The plaintiff by notice of motion filed 22 May 1998 seeks an extension of time within which to commence proceedings pursuant to ss 58(2), 60G and 60I of the Limitation Act 1969 (as amended) (the Act). The plaintiff relied on his affidavit sworn 23 July 1998 and the affidavits of Helen Mary Anne Balford sworn 22 July 1998, Maithri Panagoda sworn 23 July 1998, 17 March 1999 and John Henry Gilbert Sheldon sworn 28 July 1998. The defendants relied on the affidavits of Peter Robinson sworn 12 August 1998, David Ian Brown sworn 9 September 1998 and 22 March 1999, Peter Erwin Quinn sworn 26 October 1998 and David Wells sworn 13 August 1998. The plaintiff, Andrew Salmon and Peter Robinson gave evidence and were cross examined.
2 The plaintiff pleaded breaches of fiduciary duty, statutory duty and negligence by the defendant from the time when it took steps to have him made a ward of the State until he reached 20 years of age. The plaintiff requires an extension of time to commence proceedings in relation to the claims for breaches of statutory duty and negligence. However, the plaintiff has a separate entitlement to prosecute his claim for breach of fiduciary duty and does not require an extension of time to commence those proceedings.
3 In Williams v Minister, Aboriginal Land Rights Act 1982 & Anor (1994-95) 35 NSWLR 497, the Court of Appeal considered whether s 60G and s 60I of the Act applies to a claim for breach of fiduciary duty. The facts in Williams are that Ms Williams, a woman of Aboriginal descent, born in 1942, was placed at birth in a home for Aboriginal children by the Aborigines Welfare Board. A few years later she was moved by the Board to a home for “white” children because she was fair-skinned. She claimed that it was not until 1991 that she came to realise her borderline personality disorder was the result of her childhood experiences. She therefore sought an order for an extension of time under the Act in order to proceed against the relevant authorities for negligence, breach of duty and wrongful detention. The motion to extend the limitation period was dismissed at first instance and the plaintiff appealed this decision. In Williams Kirby P at p 509 stated:
“But it is a mistake of law to assume that an equitable claim, based on an equitable cause of action, not for damages but for equitable compensation, is to be dealt with under s 60G of the Limitation Act. It is not. It raises separate and different questions. Nor can the application of the Act “by analogy” lead to the automatic application of s 60G to such a claim. Analogous application of the statute does not necessarily mean exact application of its terms. The considerations that may be relevant to a defence of laches will be different from (or not exactly the same as) the considerations relevant to the application of the Act.”
4 The trial in Williams recently took place and judgment is reserved.
5 I observed the plaintiff giving evidence and during cross examination. He was quietly spoken. I was unable to form an opinion of the veracity of plaintiff’s evidence from his demeanour. It is to be remembered that many of the events about which the plaintiff gave evidence occurred when he was a child and thus seen through a child’s eyes. For the purposes of this application I find the following facts. In doing so, I have taken the plaintiff’s case at its highest. Should the matter go to trial some of these facts will be disputed.6 The plaintiff relies on s 58(2), 60G and 60I of the Act in relation to the claim of breaches of statutory duty and negligence. The parties agreed that this is the applicable law. The approach to be adopted in dealing with applications for the extension of limitation periods, is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997) and Commonwealth of Australia v McLean (1996) 41 NSWLR 393. The onus rests with the applicant.
(1) The plaintiff was born on 2 August 1968 at Wilcannia of Aboriginal parents. He is now 31 years of age.
(2) On 5 March 1973 when the plaintiff was about 4 years of age he was committed under ss 82 and 83 of the Child Welfare Act 1939 (the Act ) to the care of the Minister for Youth and Community Services by order of the Children’s Court at Wilcannia. The records show that at this time the plaintiff’s natural father, Frank Johnson was in gaol at Broken Hill and his natural mother Rene Johnson was in gaol in Wilcannia. Mrs Johnson had been charged with drunkenness and Mr Johnson with vagrancy and unseemly words. The plaintiff was apparently left in the care of his 14 year old sister and living in a tin humpy. At times there was no food provided for him. He was removed from the care and custody of his parents and family from that time until his wardship was determined. The plaintiff’s siblings are Patricia Fay born 7 March 1959, Delphine Joyce born 22 November 1960, Trevor Kenneth 28 July 1962, Vicky Ann 5 September 1964, Kerry Jane born 2 August 1968 and Thomas Glen 20 November 1971.
(3) From 5 March 1973 to January 1974 the plaintiff was placed in successive institutions under the control of one or more of the defendants, namely 8 March 1973 until 27 March 1973 - Bidura; 27 March 1973 until 7 September 1973 - Corelli and 7 September 1973 until 7 January 1974 - McCredie Cottage.
(4) On about 7 January 1974 the plaintiff was placed as a foster child with white foster parents Mr Clement Salmon and Mrs Delorie Salmon and their children at Panania. He remained with the Salmon family for 7 years and 7 months (until 26 August 1981) and this period of fostering took place during the plaintiff’s formative years between 4 and 14 years of age. The children of Mr and Mrs Salmon are Jeffrey, Julie, Kathy, Lisa and Andrew. During this time insofar as the way in which the plaintiff was clothed, fed, provided with medical and hospital attention, attended sports clubs and played with friends he was treated equally with the Salmon’s natural children. The plaintiff was a very good athlete. However, while the other boys attended De La Salle College he attended St Lukes at Revesby. An application was made on behalf of the plaintiff to attend De la Salle but it was not successful. During 1981 the plaintiff’s progress in 6th class at Revesby South primary school was poor.
(5) Mr Salmon was away overseas most of the time with his job as an engineer. The parenting was mostly done by Mrs Salmon. The plaintiff has always referred and still refers to Mrs Salmon as his mother. Mrs Salmon died in 1996. Although he has always remembered his mother disciplining him when he considered that he did not deserve it, he still loved her as she was the only mother that he knew (t 17). The plaintiff remembers in particular when the Salmon family visited their cousins the children would get into trouble and they all would get flogged. However he was flogged the hardest because he would stand there laughing. He recalled once when they were playing “Gilligan’s Island” on boats and they tipped over and another time when they blew up a shed (t 15). They were all punished but he received the worst punishment.
Chastisement
The plaintiff was also chastised with a strap or a piece of wood when Mr and Mrs Salmon perceived that he had done something wrong. He recalled a further incident when he did not get the shopping out of the car fast enough. Mrs Salmon had the groceries in her hand and she elbowed him and side swiped him on the face. He also recalled an incident where Mrs Salmon flogged him with a belt in the backyard. Another time after he was discharged from hospital at Greenacre after having grommets removed from his ears he told Mrs Salmon that did not want to go home. Mrs Salmon flogged him in the backyard when he arrived home.
(6) The plaintiff recalled another incident which occurred probably towards the end of his stay with Mr and Mrs Salmon. It occurred at the time when the plaintiff was helping Mr Salmon with the extension on the back of the house. The plaintiff took a “snack pack” out of the cupboard and put it into his bag to take to football. When he returned home from football the empty “snack pack” was left in his bag. The empty “snack pack” was found by Mr Salmon who punched or “king hit” the plaintiff. There was blood spurting out everywhere. The plaintiff said there may have been other incidents and that he may have been hit once a week but the one he remembers most clearly is the “king hit”. The plaintiff gave evidence that Andrew and Lisa Salmon saw the incident (t 22). The plaintiff said that his memory of this incident is clear but “when you are hit a few times, it is a novelty”. But at the end, you remember the main one, namely the “king hit”.(7) The plaintiff remembers that in a bad week he got belted once or twice by Mr Salmon. He was flogged hard and it would bring tears to his eyes and he had strap marks on his legs, back and head. These marks would last for a day or so until the swelling went down. When the plaintiff became a man Mr Salmon said “I can’t hit you no more, I can only advise you.”
(8) Andrew Salmon who was 4 years younger than the plaintiff shared a bedroom with him at the Salmon household. He gave evidence that he could not recall the plaintiff being “king hit” but he recalled all the siblings including the plaintiff being physically chastised when they were naughty. They were given a smack on the buttocks or hit on the legs with a strap and sent to their room. It was Andrew Salmon’s view that they all copped punishment equally. There is a conflict in the plaintiff’s and Andrew Salmon’s evidence.
Racist comments
(9) Ms Helen Balford lived in the same street as the Salmon family between 1962 and 1981. She had two sons Paul (born in 1962) and Phillip (born in 1963). The Balford and the Salmon families became friends and Mrs Balford became the plaintiff’s godmother. On 20 July 1977 Mrs Balford telephoned the office of the department now known as the Department of Youth and Community Services (DOCS) at Bankstown and made a confidential complaint. She said that she was deeply concerned by the way the Salmon family discriminated against the plaintiff. She said that her son had complained that the foster parents called the plaintiff “a little nigger” and said “You are no better than those blacks in South Africa causing all the trouble”. Mrs Balford expressed the view that this discrimination was having an effect on the plaintiff’s personality. She observed that when the plaintiff first came to the house he was friendly and gregarious and now he was becoming withdrawn, unhappy and not performing to his level of ability at school (Ex A).Mrs Balford considered that Mr Salmon held extremely racist views. She was not cross examined. It is puzzling that the plaintiff has not referred to these types of verbal comments nor his reaction to them in his evidence, except to say when he was asked “Were there other forms of discrimination besides chastisement?” he referred to “some psychological things”. Andrew Salmon gave evidence that there were no racial comments made to the plaintiff but conceded that his father has “his principles”. A report of Joan Bell, social worker at Minali dated 15 October 1981 in the defendant’s files refers to racism. She said that over the years there had been quite some degree of covert racism on the part of the Salmons and it was this attitude to black people which caused the plaintiff not to contact his own people and that the plaintiff’s so called inattention and poor scholastic achievements could have stemmed largely from unhappiness and insecurity. She was critical of the lack of verification in this regard and the “picture given was one of a stereotypical view of black people”. There was also later criticism by a psychologist at Minali of the Department’s failure to follow up the complaint of Mrs Balford (see report of P Champion dated October 1981).
(10) Later Ms Hall a senior social worker who came into contact with the plaintiff when he was charged with murder had a conversation with Mr Salmon in 1991 (see her report 29 January 1991). Mr Salmon told her that “these people (Aboriginals) go walk about in the mind” and that the plaintiff “as an Aboriginal was genetically inferior to his own children.” There is evidence to support the view that Mr Salmon made racist comments about the plaintiff to him.
Contact with natural family
(11) The plaintiff agreed that by the age of 7 years he was aware that he had another family. In February 1975, just over a year after placement in the foster home, a Periodical Report on Ward noted the plaintiff talking about his natural family and that Mrs Salmon was prepared for him to have a meeting with his family. However, it appears that this was not followed up.(12) In June 1976 the Annual Placement Report noted that the situation remained the same as at February 1975, as above. This report recommended meetings be arranged. One such meeting occurred when the plaintiff’s sisters, Patricia, Delphine and Kerry attended a birthday party held for him at the Salmons’ home on 1 August 1976. The plaintiff recalled that his sisters attended his 7th birthday party (it was actually his 8th birthday). A further reported noted that contact was maintained on several other occasions. However, after the plaintiff’s sister Patricia telephoned him and told him that their father had purchased a new home and would apply for the plaintiff to be returned home, the foster parents had second thoughts and became dubious about the plaintiff having any more contact with his sisters.
(13) In June 1977 a report form stated that it was possible for restoration to be made between the plaintiff to his natural family in the foreseeable future. In July 1977 there was a dramatic improvement in the plaintiff’s natural parents’ family situation but by August 1977 this had changed. The department noted marital disharmony and decided that the children should not be restored to the family.
(14) By February 1978 an Annual Ward Report recorded that the plaintiff did not remember his natural parents but noted that his sister Patricia used to visit him quite frequently. Around this time the plaintiff received a letter from his father. The plaintiff remembered receiving this letter and he thinks that he probably signed letters to his natural family written by Mrs Salmon. At the time the department recorded that the plaintiff was happy to receive the letter but seemed confused in view of the length of time since there had been any contact.
(15) Between October 1978 and January 1981 it appears that there was no contact between the plaintiff and his natural family. Reports recommended contact with his family and that “contact between Aboriginals, especially his family, would probably solve some of the problems” the plaintiff was experiencing with lack of educational progress and motivation. In August 1980 the plaintiff’s father made a request to visit the plaintiff and it was considered that having regular sibling contact and meetings between the plaintiff and his family were crucial to enable him to settle back into his own natural family. In January 1981 the plaintiff’s father visited him in Sydney and they spent the day with relatives in Redfern.
(16) The plaintiff described being brought up by a white mother and a white father and believed that the Salmon family was his family. One day the plaintiff came home to see a black man who came up to him and said “I am your father boy.” The father was crying. The plaintiff described feeling confused as he now did not know who he was. After that it was difficult to motivate the plaintiff to write letters to his natural family.
(17) In August 1981 the placement with the foster family broke down and the plaintiff was sent to the Minali Assessment Centre. The Breakdown of Placement Report stated that the foster family parents were realistic, down to earth people, with attitudes that tended to be wrongly interpreted as racist and the foster father had made it known that the plaintiff probably would be far better off in his own natural family environment. However the case conference report of October 1991 recorded the plaintiff had come to Minali as a foster placement breakdown, having been told simply that he was there “for a holiday” and he was quite certain that after a couple of weeks he would return home. After a few weeks an officer of the DOCS persuaded Mrs Salmon to tell the plaintiff he was not returning to their family. The reasons proffered by the foster parents for having the plaintiff removed from their family were not persuasive. According to the report, he was enormously upset but handled it well. While at Minali the plaintiff made and received telephone calls from the Salmon family and spent a weekend with them. He was hopeful of being restored to the family. The plaintiff later felt that he had been rejected by the Salmon family.
(18) A Year 7 report of Springwood High School noted that the plaintiff had had no natural family contact, and that he rejected his Aboriginality. It suggested that he should be made more aware of his natural family and heritage before leaving residential care, while he had support and recommended possible contact with Aboriginal families. During 1983 the school reported that his English and Maths were poor and there was a lack of interest and co-operation.
(19) Between about 20 October 1981 and about 19 December 1985 the plaintiff was placed in another institution, Weroona in the Blue Mountains. It was the plaintiff’s evidence that members of the Salmon family visited him once at Weroona. Andrew Salmon (the youngest child of Mr and Mrs Salmon) gave evidence that he and members of his family visited the plaintiff several times while the plaintiff was at Minali and Weroona. In December 1982 the plaintiff's father told the department he would like the plaintiff to be returned to his care. However the district officer recommended that there should be no holiday placement in Wilcannia at that time.
(20) In April 1983 letters were sent to the plaintiff from Delphine and Kerry plus one from an aunt. The district officer also discussed with the youth worker at Weroona the possibility of a visit to Weroona by the plaintiff’s youngest brother, Glen and a possible visit by him to Wilcannia in the following school holidays. In May 1983 photographs of the Johnson family were sent to the plaintiff.(21) Between April and December 1983 Helen Soo a social worker had many discussions with the plaintiff about his natural family. Tom Hill an Aboriginal worker, visited Weroona on several occasions and was able to inform the plaintiff of his family. It was obvious that the plaintiff was very confused and had ambivalent feelings about his family. He could not understand why he was fostered in the first place and he alternated between wanting and not wanting contact. At one stage the plaintiff stated he would like to visit his family and to be accompanied by Tom Hill. However when Broken Hill was contacted to make arrangements Mr Page said that the plaintiff should at least reply to his family’s letters and send a photo before meeting them. The plaintiff then decided to wait a while before attempting any contact. The plaintiff stated that he felt he led a “white man’s life” and his family led an entirely different life. The plaintiff had a strong positive relationship with Tom Hill, spending weekends and school holidays with him and his family. It was felt that the plaintiff would gain the support he required from Tom as far as his family was concerned.
(22) In November 1983 the plaintiff changed his name to Christopher Johnson.
(23) In April 1984 the plaintiff’s father approached the Department and arranged that he and the plaintiff’s brother Glen visit the plaintiff at Weroona. That meeting took place. After this meeting the plaintiff began talking a lot about his family back in Wilcannia and he was very keen to spend a weekend followed by a week there at a later date. The plaintiff wrote to his parents. A report concluded that if approached in a sensitive and gradual way, it would be good for the plaintiff to spend some time in Wilcannia and have natural family contact.
(24) In June 1984 both the plaintiff and his parents were keen to meet at Wilcannia. On 23 and 24 September 1984 the plaintiff together with Tom Hill visited the plaintiff’s parents at Wilcannia. This was the plaintiff’s first visit home since being placed in care and he was now 16 years of age.
(25) A report dated October 1984 stated that the plaintiff had maintained a good relationship with his former foster family and according to the report the plaintiff was pleased he had gone to Wilcannia but he could not see himself living there in the future as he did not like the lifestyle and general feeling of nothing to do. Coupled with the fact there was virtually no chance of any meaningful employment in Wilcannia caused the plaintiff to feel that at this stage of his life he had no future there.
Sexual assault
(26) In 1982/1983 at about the time the movie “Mad Max” came out the plaintiff was told by government social workers at Weroona that they were going to give him to a man who would take him out for the weekend. A man whose last name was Kevin came and picked up the plaintiff and took him to Mr Kevin’s mother’s place at Leeton. He was sexually abused by Mr Kevin at Leeton. Mr Kevin lived at Richmond. The plaintiff did not tell his houseparents Mr and Mrs Weir about the assault. The plaintiff told another young fellow at Minali named Bert McDonald who explained it to the Weirs. He was reluctant to mention this incident to a female government person whose name he cannot now recall. He told a female social worker about this around the time of the assault and he was not required to stay with Mr Kevin again. In latter years he mentioned the sexual assault to Ms Hill and Mr Tobin, his barrister. The plaintiff was not sure whether he was at Faulconbridge primary school or Springwood high school when the incident occurred. There are references in the DOCS file as to who the plaintiff stayed with when he was fostered out for a holiday or weekend but there is no reference to Mr Kevin.
15 to 18 years of age
(27) In 1985 the plaintiff gained his school certificate. A school reference dated November 1985 recorded that the plaintiff had worked well and had matured into a friendly co-operative person, a student able to work with the minimum of supervision who reacted well to constructive criticism. His November 1985 school report commended his steady work rate in mathematics, remarkable improvement in wood technics as well as his sporting prowess.(28) In December 1985 when the plaintiff was 17 years of age, Weroona was closed and all the wards and staff left. For a short time after the closure of Weroona the plaintiff was able to stay at the home of an officer of the Department Mr Tom Hill but from April 1986 he left and had to fend for himself. No alternative accommodation was made available or offered to him by the Department. The plaintiff began living on the streets and for several years he drank excessively, was from time to time violent and spent time in gaol.
(29) In summary between the ages of 4 to 18 years, despite the Department recording the importance of the plaintiff maintaining contact with his natural family, the plaintiff met his sisters when he was 8, received a letter from his father when he was 10 years of age and wrote a reply. When he was 11 he met his natural father on one occasion. In 1983 when the plaintiff was 15 years he received two letters, one from his sisters and one from an aunt and some photographs of his natural family. In 1984 when the plaintiff was 16 years old his father and brother visited him in Sydney and he visited his family at Wilcannia.
(30) On 13 November 1986 the plaintiff’s wardship was determined.
Period after wardship was determined to date
(31) It was in the late 1980’s when the plaintiff was living on the streets and getting drunk that he became violent by king hitting and punching people in the head. It was at that time that he came to believe that the chastisement he received from Mr and Mrs Salmon was physical abuse and violence (t 33/4).(32) On 19 December 1989 the plaintiff was arrested and charged with murder. He appeared at Blacktown Local Court on 20 December 1989. He was refused bail and was sent to Parramatta gaol. Mrs Salmon visited him once when he was in gaol.
(33) In 1990 and 1991 while in gaol at Parramatta the plaintiff had contact with Margaret Hall a social worker. He recalled having a conversation with her about his childhood and the problems he had living with the foster family. He told her that he was sexually assaulted by a visitor to the boys’ home and as a result he felt shame and disgust which caused him to drink heavily (t 22). She advised him that he should find out if he could do something about it but she was not the one to deal with it. As he thought he was facing life imprisonment at the time he was not in the frame of mind to pursue the matter any further. In 1990 Dr Lewin reported that the plaintiff has a likely diagnosis of alcohol addiction and would probably fulfil the full criteria for a diagnosis of Post Traumatic Stress Disorder (PTSD).
(34) In December 1991 the plaintiff stood trial and was represented by barrister Terrence Healey. The plaintiff was sentenced to two years imprisonment backdated to the date of his arrest which meant that he was released immediately.
(35) After the plaintiff’s release from gaol and up to mid 1995 he continued to drink fairly heavily. He continued to display violence on occasions. He did not live at any one address for any lengthy period but lived for short periods in Bathurst, Newcastle, Port Macquarie, Taree and Kempsey and several Sydney suburbs. During this period he was living in stolen cars, parks, on the street and squats. He stayed wherever he found accommodation for the night (t 2). He did not have a permanent home.
(36) However, during the period referred to above (from late 1992 to mid 1995) the plaintiff undertook a course at the Visual and Performing Arts Centre and obtained his diploma. Since then he has been able to teach and be involved in drama production.
(37) In about June 1994 the plaintiff was charged with causing malicious damage. He was fined $60 and given a 2 year good behaviour bond. The plaintiff spoke to Terrence Healey barrister and during the conversation the plaintiff said “I have heard that some Aboriginal people taken away from their families are starting court action.” Mr Healey advised the plaintiff to get as much paper work as he could and advised him that he might have a good case. Mr Healey suggested to the plaintiff that he consult a solicitor in Canberra. The plaintiff did not follow this suggestion as he did not know any solicitors in Canberra. Mr Healey also told the plaintiff to make enquiries with his own people and to get back in touch with him when he had further material. They spoke on the telephone once. The plaintiff lost contact with Mr Healey when he (Mr Healey) went to New Zealand for 2 years between 1994 and 1996. Nor did the plaintiff have the resources to make further enquiries and he cannot remember if he sent Mr Healey any material.
(38) In early 1995 the plaintiff contacted DOCS at Broken Hill. He asked them to supply him with his files but the department did not do so.
(39) In mid 1995 the plaintiff returned to Wilcannia to try and re-establish contact with his natural family and to meet them before they died. He found that his father had died 3 years previously having apparently tried to re-establish contact with him for some years. He found that his mother was “brain dead” and two of his sisters were dying of chronic alcoholism. Two other sisters were unwilling to re-establish any relationship with him. In 1996 his elder brother died of a heart attack.
(40) In late 1995 or possibly early 1996 the plaintiff’s partner Robyn Puckeridge suggested that he should see a solicitor regarding his treatment at the hands of the government and his foster parents. At this time he moved from Wilcannia to Broken Hill. He later became the manager of its Aboriginal hostel and taught drama and video production to a group of students. He has recently made a movie.
(41) On 8 February 1996 the plaintiff attended an open forum organised by Linkup Aboriginal Corporation on the subject of “Let’s Talk About the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Families” at Broken Hill.
(42) In late 1995 and early 1996 the plaintiff consulted John Sheldon a solicitor with Western Aboriginal Legal Aid Services at Broken Hill to seek assistance in obtaining historical information about himself. Mr Sheldon informed the plaintiff that he had sought to obtain the plaintiff’s complete file from the DOCS. During the remainder of 1996 the plaintiff contacted DOCS either by telephone or personally at least once a week trying to obtain his file. On 22 April 1996 Mr Sheldon requested the department to provide him with the file. At some time between April and October 1996 Mr Sheldon and the plaintiff perused parts of the departmental file. In April 1996 Mr Sheldon received Ms Hall’s notes. It was not until January 1997 that the Department provided their files to the Western Aboriginal Legal Service. In January 1997 the plaintiff returned to live in Sydney.
(43) On 3 April 1997 the plaintiff was examined by Dr Robert Gertler. In his report dated 8 April 1997 Dr Gertler stated that in his opinion the plaintiff’s experiences as a foster child during his crucial formative years led to subsequent criminal activity. Dr Gertler said that the nexus was a direct one in the sense that the plaintiff was exposed to violence and became violent in turn. It was indirect in the sense that the plaintiff was rejected by his family of origin and left totally unprepared to cope with an adult world with no role models to rely upon and no secure structure and that “the plaintiff’s anti-social behaviour was designed to provide a legal structure”. It is Dr Gertler’s view that the plaintiff was suffering from chronic depression.
(44) On 12 May 1997 Mr P W Gray and Mr Tobin QC were briefed to consider the materials which Carroll and & O’Dea had gathered including the files from the Department of Youth and Community Services and to draft all necessary pleadings.
(45) On 24 July 1997 the statement of claim was filed.
(46) On 22 May 1998 a notice of motion was filed seeking an extension of time pursuant to s 60G of the Act.
(47) On 22 March 1999 an amended notice of motion was filed seeking an extension of time pursuant to s 58(2) and s 60G.
The Law
7 Section 58 falls within subdivision (1) of Division (3) and ss 60G and 60I fall within subdivision (3) of Division (3) of the Act.
Subdivision (1)
8 Section 58(2) provides for the extension of the limitation period in respect of a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. Section 58(2) provides as follows:
“Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that:-
(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the period of limitation for the cause of action; and
(b) there is evidence to establish the right of action, apart from a defence founded on the expiration of a limitation period,
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date…”9 The power thus granted to the court to extend the limitation period is limited to a power to extend that period only until a date one year after the date upon which the plaintiff became aware of the last of the material facts necessary to be known by him. The defendant agrees that the date of the application to the court is the date of filing the statement of claim namely 24 July 1997. The date upon which the plaintiff in fact became aware of the material facts is thus of vital importance in this case, where the statement of claim in respect of a cause of action was not filed until 24 July 1997. The plaintiff cannot succeed under s 58 unless he can show that he was unaware of all necessary material facts until a date after 24 July 1996.
10 The plaintiff submitted that the last date of the expiration of the limitation period was 6 years after the plaintiff turned 20 years as the Minister owed the plaintiff a duty of care pursuant to s 25 of the Act until he was 20 years of age. The defendant contended that the limitation period expired 6 years after the plaintiff attained the age of 18 years. Section 52(1)(d) of the Act refers to the limitation period being suspended for the period that the plaintiff was under a disability. The plaintiff was under a legal disability until he attained 18 years of age. It is my view that the limitation period expired 6 years after the plaintiff reached his majority, namely 2 August 1992.
11 In practical terms, the plaintiff, to open the way to an exercise of the court’s discretion under this subdivision of the Act, must identify one or more “material facts of a decisive character relating to the cause of action”; prove (by evidence) that that fact or one or more of these facts was unknown to him and not within his means of knowledge as at 2 August, 1992 (the last expiration date of the relevant limitation period); and either show (by evidence) on what date (being a date after 2 August, 1992) that fact (or the last of those facts to become known to him) became known to him (or came within his means of knowledge) or, at the least, show that one such fact was still not known to him as at 24 July 1996.
12 A material fact relating to a cause of action includes the nature and extent of the personal injury so caused - see s 57B(1)(b)(iv). Section 57B(1)(c) states that facts are of decisive character if, but only if, a reasonable man knowing those facts and having taken appropriate advice on those facts would regard those facts as showing that an action on the cause of action would have a reasonable prospect of success and resulting in an award of damages sufficient to justify the bringing of an action.
13 Material facts in paragraph (1) of s 57B(1)(b) is not a reference to a cause of action in negligence but is rather a reference to the facts which constitute the acts or omissions, including those facts which are necessary to show the negligent character of those acts or omissions, upon which such a cause of action might be founded. (Do Carmo v Ford Excavations Pty Limited (1983) 154 CLR at p 234, per Dawson J).
14 The application of s 58(2) involves a three step process. The first step is to inquire whether the facts of which the plaintiff was unaware were material facts: s 57B(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s 57B(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the plaintiff before the specified date: s 58(2).15 The plaintiff submitted that it was not until April 1997 when he read the contents of Dr Gertler’s report he became aware that his experiences as a foster child caused his current psychiatric condition. The defendant submitted that at any time from 1992 (at the latest) the plaintiff was in a position to commence proceedings. According to the defendant, the plaintiff had the wherewithal to, and did in fact, raise these matters further with Mr Healey in 1994 and Mr Sheldon in 1995. According to the defendant, the plaintiff accessed and perused his files in mid to late 1996 and the report of Dr Gertler in 1997 did not tell him anything which he had not known or contemplated for at least 7 years previously and did not cause him to change his attitude or course of conduct. According to the defendant, by no later than 1990 and probably some time before, the plaintiff had formed the view that he had been physically abused, sexually assaulted and otherwise mistreated and he attributed his current problems to this mistreatment and abuse.
16 I shall briefly summarise the plaintiff’s state of knowledge up to 2 August 1992, the time when the limitation period expired. I accept that the plaintiff did not raise the issue of physical abuse with Mrs Salmon during her lifetime nor did he raise it with representatives from the Department while he was under its control because he was brought up in a family where these things were not mentioned. As a child he perceived the floggings he received as being discipline (t 17.30). The plaintiff says that he now appreciates he grew up in an environment of recurrent physical abuse and an atmosphere of insecurity and violence (t 22B.5). He gave evidence that by the late 1980’s but prior to going to gaol he believed that he was physically abused (t 33.35). Also at that time he believed that the chastisement by the Salmons was physical abuse and violence.
17 Later in cross examination the plaintiff said that he regarded that from an early stage, namely when he was at primary school, the chastisement he received by the Salmons was physical violence because this is when he started fighting (t 34.25). However by that statement, I infer that the plaintiff answered that question with the benefit of hindsight. I do not think that a primary school student would have understood that his involvement in fighting at school was caused by his foster parents’ alleged physical violence. However I accept that in the late 1980’s the plaintiff regarded the chastisement he received from the Salmons as physical abuse and violence.
18 From at least 1990 the plaintiff has been literate, numerate and able to handle government forms. On 27 March 1990 the plaintiff told Dr Lewin that he believed he was rejected by his biological parents when he was aged one year and that he does not know why he was “put away” and was “pissed off” about that. He also believed that his adoptive parents had rejected him.
19 In 1991 the plaintiff’s legal representatives were preparing to defend him on the murder charge. The plaintiff spoke to his counsel, Mr Healey about his early childhood experiences including the years when he lived as a foster child with the Salmons. He told Mr Healey about being removed from his family in Wilcannia and being transferred to live with the Salmon family in Sydney (t 22B). In 1991 the plaintiff told Ms Hall, a social worker that he was scapegoated with many of the foster family’s problems and was treated as inferior to the rest of the foster family. He told her that he had been sexually assaulted by a visitor to the boys’ home and feels that the resulting feelings of shame and disgust caused him to drink heavily. Ms Hall advised him to do something about it but she was not the one to deal with it. I accept that in 1991 the plaintiff had difficulties with excessive alcohol consumption, may have met the criteria for PTSD and was facing a murder trial so that he was not in a position to pursue legal proceedings in relation to the sexual assault. However, I have come to the conclusion that in 1990 the plaintiff knew that he had suffered a personal injury namely the sexual assault. However in 1991 the plaintiff did not know that he may have had a claim in relation to the treatment he received while he was a ward of the State.
After the limitation period expired but prior to 1995, the plaintiff had been told by Maggie Hall and had understood that something on his department file showed that Mr Salmon had treated him badly. He relayed this information to Mr Sheldon in 1995 (t 34). After the plaintiff’s release from gaol and up to mid 1995 he continued to drink fairly heavily. He continued to display violence on occasions. He did not live at any one address for any lengthy period but lived for short periods in Bathurst, Newcastle, Port Macquarie, Taree and Kempsey and several Sydney suburbs. During this period he was living in stolen cars, parks, on the street and squats. He stayed wherever he found accommodation for the night (t 2). He did not have a permanent home.
21 Notwithstanding these difficulties during this same period the plaintiff was able to complete a diploma at the Visual and Performing Arts Centre.
22 On 3 April 1997 the plaintiff was examined by Dr Robert Gertler. In his report dated 8 April 1997 Dr Gertler stated that in his opinion the plaintiff’s experiences as a foster child during his crucial formative years led to subsequent criminal activity. Dr Gertler said that the nexus was a direct one in the sense that the plaintiff was exposed to violence and became violent in turn. It was indirect in the sense that the plaintiff was rejected by his family of origin and left totally unprepared to cope with an adult world with no role models to rely upon and no secure structure and that the plaintiff’s anti-social behaviour was designed to provide a legal structure. It is Dr Gertler’s view that the plaintiff is suffering from chronic depression.23 The plaintiff has given little evidence as to what he understood after he read the contents of Dr Gertler’s report. In the plaintiff’s affidavit he deposed that he was examined by Dr Gertler on 3 April 1997 and the doctor provided two reports dated 8 April 1997 and 22 April 1997 to his solicitor (Aff para 28). The plaintiff does not state that he actually read the report nor what he understood from reading it. However during cross examination the plaintiff said that he did not realise what the Salmons were doing to him was not normal chastisement but violence until after he read Dr Gertler’s report (t 35.5). This statement has to be considered in the light of the other evidence he gave on this topic. I turn to the statements that the plaintiff made in cross examination relating to the chastisement and violence he experienced while being a member of the Salmon Family. As previously stated, in cross examination, the plaintiff said that by the late 1980’s but prior to going to gaol he believed that the chastisement by the Salmons was physical abuse and violence yet he also said that he did not realise that what the Salmons were doing to him was not normal chastisement but violence until after he read Dr Gertler’s report. It is difficult to reconcile these two statements.
24 I have carefully analysed and reflected on the plaintiff’s evidence. Further in cross examination the plaintiff said that in his mind it became physical violence when he inflicted violence on other people (t 32.50). He also stated that he was not really sure when he first came to the realisation that the chastisement by the Salmons was physical abuse and violence (t 34.15) but he did not think that the realisation came when he was smashing someone’s head in (t 34.25). I have reluctantly come to the view that by the late 1980’s but prior to 1992 the plaintiff knew that the chastisement by the Salmons constituted physical abuse and violence. The plaintiff did not give any evidence to the effect that he did not know that the cause of his depression was the treatment he received as a foster child. Nor does he give any evidence to the effect that after reading Dr Gertler’s report he understood that his experiences as a foster child who was exposed to violence caused him to be violent in turn.
25 I have also come to the conclusion that in 1991 the plaintiff was aware that he had been sexually assaulted while at Weroona. In 1991 the plaintiff knew that the sexual assault resulted in feelings of shame and disgust and caused him to drink heavily. While the plaintiff was living on the streets in various country towns and several Sydney suburbs from 1992 to 1995 he was able to complete a diploma. He was in a position to seek legal advice by late 1995 or 1996 when he saw the solicitor John Sheldon. The plaintiff has not given evidence as to when he became aware that he had a cause of action that has a reasonable prospect of success. The plaintiff has not discharged his onus of proof. The plaintiff has not established on the balance of probabilities that his experiences as a foster child caused his current psychiatric condition. He has not established that he was unaware of a material fact of a decisive character within the time period stipulated in s 58(2). The plaintiff’s application for an extension of the limitation period pursuant to s 58(2) fails.
26 I turn to ss 60G and 60I of the Act. The procedure provided by this group of provisions falls into subdivision (3), is available for causes of action that accrue after 1 September 1990; but “also (by the operation of Schedule 5) for causes of action that accrued before that date” (s 60F).
27 Schedule 5 provides by clause 4(1) that:
“Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990…”;28 The statement of claim was filed on 24 July 1997 which is outside the time stipulated in clause 4(4)(b). The application can only succeed if that date is shown to be “within the period of three years referred to in s 60I”.
and clause 4(4) empowers the court to make an order under s 60G in respect of such a cause of action:
“…if an application for such order is made within:
(a) the period of three years referred to in s 60I; or
(b) the period of three years commencing 1 September 1990.”
29 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, “for such a period as it determines”.
30 The relevant provisions of s 60I are as follows:
“(1) A court may not make an order under s 60G or 60H unless it is satisfied that:31 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury suffered; or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii).”
32 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 2 August, 1992, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 24 July 1994); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b).
(1) As at 2 August, 1992 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii).
(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 24 July 1994.
33 Counsel indicated that the plaintiff relied on s 60I(1)(a)(i)(ii) and (iii) and as with s 58(2) the plaintiff submitted that it was not until April 1997 when he became aware of the contents of Dr Gertler’s report that he became aware that his experiences as a foster child caused his current psychiatric condition. As with s 58(2) the defendant made the same submission that by 1990 at the latest the plaintiff had formed the view that he had been physically abused, sexually assaulted and otherwise mistreated and he attributed his current problems to this mistreatment and abuse.34 For the reasons given in relation of s 58(2) of this judgment, in 1991 the plaintiff knew that he had been sexually assaulted and that it resulted in feelings of shame and disgust and caused him to drink heavily. By the late 1980’s and prior to going to gaol the plaintiff knew that he had suffered a personal injury. By 1992 the plaintiff also knew that the chastisement by the Salmons was physical abuse and violence. He knew that he had suffered physical injury which included strap marks from being hit with a strap. He does not give any evidence as to when he knew that he suffered a psychiatric injury namely depression. The plaintiff’s knowledge that he suffered a personal injury was acquired prior to 24 July 1994. Accordingly the plaintiff’s claim under s 60I(1)(a)(i) fails.
(i) Whether the plaintiff has proved that “he did not know that a personal injury had been suffered ”
35 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). However, s 60I(1)(b) imposes an objective test - “became aware (or ought to have become aware)” of all three matters listed in paragraphs (a)(i)-(iii).
(ii) Whether the plaintiff has proved that he was “unaware of the nature or extent of the personal injury suffered”
36 The nature and extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris pp 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury.
37 On the topic of awareness, the High Court referred to a passage from Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151, where it said that the meaning of the words “first becomes aware of” in a Queensland statute is equally applicable to the term “unaware” in s 60I(1)(a):
“[T]he very words ‘become aware’ strongly indicate that the statute is looking to the purchaser’s actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words ‘becomes aware of the failure’ in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a ‘failure’ to do something which the Act says should be done.”
38 The words “become aware” mean that the plaintiff must have knowledge and awareness of the fact that such a statement was given. As previously stated by 1991 the plaintiff was aware that he had been sexually assaulted while at Weroona. Also by 1991 the plaintiff knew that the experience of being sexually assaulted resulted in feelings of shame and disgust and caused him to drink heavily.
39 Also as previously stated earlier in this judgment it is my view that by the late 1980’s but prior to 1992 the plaintiff knew that the chastisement by the Salmons was physical abuse and violence. Also as previously stated the plaintiff did not give any evidence to establish that he did not know that the cause of him suffering depression was the treatment he received as a foster child. Nor does he give evidence that after reading Dr Gertler’s report he understood that his experiences as a foster child when being exposed to violence caused him to be violent in turn. For the reasons given earlier in this judgment, in relation to the s 58(2) application, the plaintiff did not give evidence to establish on the balance of probabilities after reading Dr Gertler’s report in 1997 that his experiences as a foster child caused his current psychiatric condition. I am not satisfied that the plaintiff was unaware of the nature or extent of his injury within the time period stipulated in s 60I(1)(a)(ii). The claim under s 60I(1)(a)(ii) fails.40 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff’s particulars of negligence. - Drayton Coal Board Pty Limited v Drain (NSWCA Gleeson CJ, unreported 22 August 1995).
(iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant’s act or omission
41 Once again, for the reasons given earlier the plaintiff did not give evidence to establish that after reading Dr Gertler’s report in 1997 he became aware that his experience as a foster child caused his current psychiatric condition.
42 The plaintiff gave evidence in relation to the discipline he received from Mrs Salmon. He said “I see it as the Government had a job to do, to go and check out nothing was happening, but they didn’t.” (t 17.25) However, it is not clear when the plaintiff acquired the knowledge that the Government had a responsibility towards him and allegedly failed in carrying out their responsibility. In his affidavit (para 30) the plaintiff deposed that on 12 May 1997 Mr Gray of Counsel was briefed as junior to Mr Tobin QC to consider materials which Carroll and O’Dea had gathered including the Youth and Community Services files and to draft all necessary pleadings. On 13 June 1997 Counsel provided joint advice to the plaintiff’s solicitor and a draft statement of claim. The plaintiff maintains his claim for privilege over that advice. Nowhere in his affidavit nor in his evidence does the plaintiff disclose what he understood were the acts and omissions upon which he relies to found his cause of action. Nor does he disclose when he became aware of those acts and omissions.
43 In 1991 the plaintiff had been told by Maggie Hall that he should find out if he could do something about the sexual assault but she was not the one to deal with it. As previously stated I accept that the plaintiff was not in a position to seek legal advice about it until late 1995 or early 1996. However as referred to above the plaintiff did not give evidence of what were the acts or omissions which he relied upon nor when he became aware of those acts or omissions. Rather he only says that counsel provided joint advice to his solicitors. The plaintiff has failed to discharge his onus of proof. The plaintiff has not established that he was unaware of the connection between the personal injury and the defendant’s acts or omissions within the time frame stipulated. His claim under s 60I (1)(a)(iii) fails.
44 The plaintiff has not satisfied the provisions of s 58(2) and s 60I(1)(a)(i)-(iii) so his application to extend the limitation period fails. If I am wrong and the plaintiff has passed through either s 58(2) or s 60I(1) gateways I turn to consider whether it is just and reasonable to extend the limitation period.45 Firstly, I turn to consider whether the plaintiff has a real case to advance. The defendant submitted that the plaintiff did not have a cause of action. In relation to s 58(2) and s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff’s cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Ortado v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Lewis v Bailey (unreported, NSWSC Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (unreported, NSWCA, 26 February 1998) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998) and Fitzgerald v Bankstown City Council (unreported, NSWCA, 6 November 1995).
Just and reasonable
46 The defendant referred to a warning by Barwick CJ in Maloney v Commissioner of Railways (1978) 18 ALR 147 at 148; 52 ALJR 292 at 292-3 where he stated:
“It is easy to overlook the all important emphasis upon the word ‘reasonable’ in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done.”
47 The defendant tendered an article entitled “Black Children: White Welfare?” Aboriginal Child Welfare Law and Policy in New South Wales by Richard Chisholm dated April 1995 (Social Welfare Research Centre, University of NSW) (the article) and evidence that supports its case that it treated the plaintiff in accordance with prevailing policies and in accordance with the Child Welfare Act 1939. At Chapter 4 p 98 of the article, the author examines three phases of child welfare reforms and Aboriginal policy. The first phase was constituted by the regime of the Aborigines Protection Board and later the Aborigines Welfare Board, covering the period 1883-1969. In this period, Aboriginal child welfare was seen as part of the white man’s response to the “Aboriginal problem”, a response which consisted of establishing a special authority considered that the “welfare” of Aboriginal people would be promoted by measures designed to make them like white people, so they could take their place in the “wider” society. By the 1960’s, however, the view came to prevail that this objective was not likely to be advanced by the continuation of a separate authority to have powers over Aboriginal people and that such an authority in fact constituted a threat to their civil liberties. The abolition of the Aborigines Welfare Board in 1969 marks the end of the first phase.
48 The second phase occurred between 1969 and 1980. It is during this phase and a few years into the third phase that the plaintiff was a ward of the State. During this period, separate laws or provisions for Aboriginal people were seen generally as unjustified, and perhaps discriminatory. In this second phase, Aborigines were to be treated like everyone else. There were to be no special detriments, and no special privileges, associated with being Aboriginal. The ordinary systems of health care, legal services, child welfare and so on would apply to all alike, regardless of race. Aboriginal people had the same rights as everyone else, in particular the right to freedom from discrimination. It was proper to criticise the legal system or the health system for any less favourable treatment of Aboriginal people, but the notion of equal participation in these and other social services by individuals was seen as marking the limits of the rights of Aboriginal people.
49 In the late 1970’s, however, new and very different ideas had gained ground, leading to what is here regarded as the third phase. “Self determination” became more prominent than equality as a touchstone of justice for Aboriginal people. The emergence of support for Aboriginal initiatives, especially in the areas of legal services, health and housing, represented a new sense that justice to Aboriginal people includes some recognition of the rights of Aborigines to continued existence and development as a people. It was not enough, as had been previously assumed, to ensure that Aboriginal individuals were free from discrimination. The granting of rights to individuals alone was seen as another strategy for implementing the policy of assimilation, since what was protected was the individual Aboriginal’s right to participate in the non-Aboriginal society. The individualistic notion of freedom from discrimination was consistent with a community which, having largely destroyed Aboriginal society, gave Aboriginal people no choice but to live according to the rules and traditions of the alien European community. A new view of equality emerged, in which Aboriginal people had a right to a place in a viable and authentic Aboriginal community. Since vast damage had been done to Aboriginal society by the European conquest, justice for Aboriginal people required that steps be taken to assist them in consolidating and developing their culture, traditions, and identity.
50 In 1987 the Children (Care and Protection) Act came into force. Section 87 of that Act provides that an Aboriginal child should as far as practicable be placed in the care of a member of the child’s extended family as recognised by the Aboriginal community to which the child belonged.
51 Mr Erin Queen who was employed by what is now known as the DOCS from 1951 to 1991, and was from 1958 to 1969 a district officer who dealt with child protection matters, including those relating to indigenous as well as non-indigenous children swore an affidavit. He has outlined the policies in the department from 1973 to 1983. By 1973 similar policy and practice in child protection applied to indigenous and non-indigenous children but departmental experience at that time was that there were great difficulties in placing indigenous children in longer term foster care and succeeding in the longer term foster care of indigenous children. Consequently there was a strong department emphasis on keeping indigenous children out of care. That ordinarily involved examination of and usually placement with or garnering the support of the children’s extended family. The department would go to considerable lengths to make arrangements for the indigenous children to stay with the extended family. It was the breakdown of the ability of the immediate and extended family to provide for the child which led to indigenous children coming into care.
52 In 1973 the principal influences in child protection were - (a) the Child Welfare Act. Its policies and practices focused on the concept of the neglected child; (b) the abolition of the Aboriginal Welfare Board and the consequences thereof; (c) relevant judgment of superior courts; and (d) departmental policy, which emphasised that the welfare and interest of the child was the paramount consideration.
53 The family situation of an indigenous child had to be extreme to cause the departmental officers to make application under the Act. In this period the department seldom had any indigenous foster families and departmental experience led to the placement of indigenous children in "non-Aboriginal” areas, such as parts of the Sydney region because departmental officers had found that the placement of an indigenous child with a white family at, for example, Kempsey or Wilcannia created racial tensions not in the best interest of the ward.
54 According to Mr Quinn review of the files also disclosed that the placement of the plaintiff with his foster family, the Salmons, although obviously hoped to be a long term placement appeared to suffer a typical breakdown in adolescence and in that respect appears a fairly typical story particularly given that there was no recorded history of physical or sexual abuse. He referred to Mrs Balford’s complaint concerning the foster family and considered that it was not of that nature. There are no other known complaints concerning the plaintiff’s care from the plaintiff or any other source. The breakdown of a placement of a child within a foster family commonly occurred when the foster child was aged 12 or 14 years.
55 According to Mr Quinn the restoration of wards to the natural family was not the main objective of the department in the period 1973 to 1983 unless the natural parent situation had improved within a reasonable time after the child became a ward. In the 1970’s there was significantly less community resources available to support and encourage the improvement of the situation of the ward’s natural family. Prior to 1980 it was difficult for a natural parent to seek other than administrative review of any decision concerning a ward.
56 It is Mr Quinn’s view that departmental records disclose that the plaintiff was dealt with in accordance with the then accepted and applied principles and policies then considered to be in the best interest of the child. The orders and arrangements at that time were in accordance with the departmental policy and the requirements of the Act. The plaintiff’s subsequent fostering and time in departmental care was also in accordance with existing practice and policies. The departmental records do not disclose facts or circumstances indicating that the plaintiff should not have been taken into care nor that there was other than proper care provided to him.
57 Mr Robinson who is currently the Assistant Manager of the Complaints Investigation and Review Commission gave evidence and was cross examined. He had responsibility for the supervision of the plaintiff’s foster parents from August 1978 to September 1981. Mr Robinson formed the view that Mrs Salmon was committed to doing her best for the plaintiff. He found Mr Salmon pragmatic and recalled that Mr Salmon thought the plaintiff would eventually return to his origins. Mr Robinson considered Mr Salmon to have clear but not derogatory views about cultural differences (Aff 6). He has no recollection of the Salmons making derogatory comments to the plaintiff. Mr Robinson conceded in cross examination that if a child was subject to racist and derogatory remarks on the basis of his skin, he would consider it to be a very serious breach of the obligations of the foster parents (t 46.5). As part of his role of supervising families and children who were placed with them he would visit the household at least four times a year. Sometimes these visits were short, some were comprehensive and he would also ensure that he saw the child alone at least once each year. His aim at such times was to endeavour to forge a strong relationship with the child and thereby assist the child and the foster family.
58 Mr Robinson stated that he regarded it as a necessary part of his supervising duties to actually visit the household where the plaintiff was fostered four times per year but conceded that he did not necessarily visit the foster child but rather the foster parents during school hours. His recollection is that he fulfilled his obligation to visit the household four times per year (t 15.30). He may have interviewed the plaintiff in the principal’s office at school for 15 or 30 minutes. Mr Robinson also stated that if the plaintiff had been told when he went to Minali assessment centre that he was going away on a holiday, that it was inappropriate and extremely cruel and would, in the worst situation have a distressing effect on the child and in 1981 this behaviour would not have been tolerated (t 50).
59 The question to be decided at trial is whether the defendants’ conduct accords to the standard of reasonable care demanded by the law and this should be understood in the light of Barwick CJ’s comments in Mahoney. In relation to duty of care that was owed to the plaintiff by the defendant, the plaintiff’s counsel referred to the decision of the Court of Appeal in Youngman v Lawson 1 (1981) NSWLR 439. In that case Street CJ (with whom Reynolds and Glass JJA agreed) stated that the Child Welfare Act contained no definition of “guardian” or “guardianship” (at p 445). Street CJ referred to some provisions of the Child Welfare Act to demonstrate the unsoundness of attempting to deduce from the Child Welfare Act as a whole whether any, and if so what gloss should be put on the word “guardianship” in s 72(j). He concluded that there was no adequate consistency in the draftmanship of the Child Welfare Act to justify any general conclusion. Street CJ in relation to s 72(j) held:
“In the first place guardianship is a relationship which, so long as it subsists, is recognized as conferring rights in the guardian in respect of the custody and upbringing (educational as well as religious) of the child. Those rights may be exercised by the guardian himself or herself actually having physical custody; or they may be exercised by the physical custody being placed with others. Such other placements might be temporary and casual as, for example, allowing a child to stay with friends for a weekend. They may be on a more regular and extended basis as, for example, placing a child in a boarding school. They may be of an even more extended character as, for example, allowing the child to live with grandparents. Such placements do not remove the legal authority of the guardian over the child. Such authority will subsist until displaced by an order of a court or the operation of a statute.”
60 The plaintiff’s counsel submitted that the proper definition of guardianship is that stated by Mayo J in Wedd v Wedd (1948) SASR 104 where His Honour referred to the words “custody” and “guardianship” as contained in the Guardianship of Infants Act 1940 (SA) and stated:
“It may be “guardianship” and “custody”, when used in contrast, are several aspects of the same relationship. The former can very well be employed in a special context to denote duties concerning the child ab extra; that is, a warding off; the defence, protection and guarding of the child, or his property, from danger, harm or loss that may enure from without. Commonly guardianship is used in a wider sense: Neale v Colquhoun [1944] SASR 119 at pp 129-130. Custody essentially concerns control, and the preservation and care of the child’s person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction, and the like.”
61 The plaintiff alleges that the defendants were responsible for the care and upbringing of him from 4 to 18 years of age during the period 5 March 1973 until 2 August 1986 and thereafter for his support and the supervision of his progress as a ex-ward until he reached the age of 20 years.
62 It is alleged that the defendants owed duties to the plaintiff which included (a) to care for him and protect him from harm; (b) to act in his best interest in accordance with his long term needs; (c) to ensure that he was well cared for and that his individual interests were preserved and enhanced, while ever he was living in the various institutions and places; (d) to ensure that he was brought up with an appreciation and understanding of his Aboriginality and that responsible efforts were made to maintain and/or re-establish contact and meetings between the plaintiff and his natural family and to ensure that he had support and supervision during that time and as an ex-ward for two years after he reached the age of 18 years.
63 It is alleged that the defendants owed the plaintiff fiduciary duty and duties in torts and statutory duties of similar character by virtue of the provisions of ss 9, 10, 22, 23, 24, 25, 50, 53, 54, 82, 144 and 148B of the Child Welfare Act. It is alleged that the defendants breached the duties they owed. These breaches are particularised in para (13) of the statement of claim. It is alleged that as a result the plaintiff suffers from a psychiatric illness namely, chronic depression, acute anxiety and post traumatic stress disorder and as he was exposed to physical ill-treatment and to sexual abuse he became pre-disposed to violence himself and as he was rejected in whole or in part by both his Aboriginal family and his foster family he was left ill-equipped to cope with the adult world, feeling that he did not belong to either white or Aboriginal society. He also claims damages for the trauma and separation from his own family; the loss of opportunity to love and to be loved by his own family; his deprivation of family and cultural heritage; loss of ability to realise his innate scholastic and academic potential and his lack of acceptance of and confidence in his Aboriginality and the loss of his chance to equip himself to his potential of employment. There is no defence on file.
64 In relation to the law as to whether a breach of the statutory duty gives rise to a private right in Sovar v Henry Lane Pty Limited (1966-67) 116 CLR 397 Kitto J at p 405 stated:65 The above quote was cited with approval in Stubbs v NRMA Insurance Limited (1997) 42 NSWLR 550 at 555.
“…The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.”
66 It can be argued that the defendant as guardian owed a duty to the plaintiff to act in his interest and in a way that truly provided a manner apt for a fiduciary for his care. As in Williams Kirby P (as he then was) at p 511C-D stated that it is arguable that a person who suffers as a want of proper care on the part of fiduciary may recover equitable compensation from the want of proper care. As Kirby P pointed out in Williams, in other jurisdictions, compensation for breach of fiduciary duty has been held to include recompense for the injury suffered to the plaintiff’s feelings. It can be argued that the common law duty of care is similar to the fiduciary duty or the statutory duty. In relation to breach of statutory duty, it is my view that it is arguable that the Minister had a duty of care towards the plaintiff when he was 17-20 years of age. It was during that time that the plaintiff lived on the streets and drank excessively (see s 25 of the Act). It may also be argued that the complaint of Mrs Balford concerning the racist comments by the foster family should have been investigated. The same can also be argued in relation to the sexual assault (see s 148B(3) of the Act). It can also be argued that the inspections required by s 50 of the Act and the subsequent report to the Minister were inadequate particularly in these circumstances where other case workers have commented adversely about the care the plaintiff received while fostered with the Salmons. It is my view that there is evidence to demonstrate that the plaintiff has a real case to advance.
67 In Williams Kirby P stated at p 510 that:
“The fact that the claim for equitable compensation for breach of fiduciary duty could not be disposed of but would (peremptory relief apart) be required to proceed to trial, would itself be a consideration relevant to the determination of what it was “just and reasonable” to do in respect of the causes of action in tort. The evidence relevant to the claim for breach of fiduciary duty would be substantially the same as the evidence relevant to the claim for damages for the torts of negligence and wrongful detention. If a court concluded that a claim for breach of fiduciary duty was bound to be tried, it would seem strongly arguable that the alternative causes of action upon which the same plaintiff relied at common law, should be heard at the same time. At the least, that would be a matter relevant to the exercise of the discretion under s 60G(2).”
68 The passage of time and the changing perceptions of right and wrong conduct pose as great a problem for the plaintiff as they do for the defendant. And the reasonableness of permitting the plaintiff to pursue his claim for breach of fiduciary duty which requires no extension of time under the Limitation Act, and the causes of action for breach of statutory duty and negligence depends on evidence largely common to the claim for equitable compensation for breach of fiduciary duty.
69 Kirby P in Williams pointed out the law which has often been an instrument of justice to Aboriginal Australians can also, in proper cases be an instrument of justice in vindication of their legal rights (p 515 C). Williams was decided before Taylor. Consideration must be given as to whether the defendant can obtain a fair trial or whether will suffer significant prejudice.
70 As previously stated, Taylor makes it clear that it is prima facie prejudicial to the defendant to grant an extension of time in respect of a statute barred claim. The plaintiff bears the positive burden of demonstrating that the justice of the case requires an extension - see also Mason P in BHP Steel (AIS) Limited v Cinquegrana (NSWCA, unreported 3 September 1997).
71 In Taylor McHugh J referred to the effects of delay in the now often quoted passage at p 8 which states:72 and at page 11 he continued:
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”
73 Dawson J, in Taylor said at page 2:
“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”
74 McHugh J at p 10 continued:
"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."
75 Toohey and Gummow JJ (in their joint judgment) at p 7 expressed themselves in the following terms.
“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
76 David Wells a legal officer employed by the DOCS said that he had caused searches to be carried out concerning the file of the plaintiff within the Department. Staff members and former staff members have been identified from the files. It was noted that the whereabouts of A F Wilson, P Nowland, G Page, A Weir, K Weir and W Hallins could not presently be ascertained.
77 Subsequently the plaintiff spoke to Wayne Hallins at Penrith and he offered to assist the plaintiff. A F Wilson is Frank Wilson and the plaintiff has located him at Williamstown in South Australia. Mr G Page is in the telephone book and is located in the Dubbo Juvenile Justice section. Mr P Nowland is still working with the DOCS and is the manager at the Tamworth branch and it is conceded that the defendant has since found Mr and Mrs Weir. Mrs Salmon died in 1996. The defendant has located three children of the Salmon family and the defendant’s solicitor has spoken to Mr Salmon in Thailand and has been informed by Mr Salmon that he is prepared to co-operate in the case. All the staff members and former staff members identified by the defendant have now been located by the plaintiff.
78 The defendant produced evidence that an important file (the W file) could not be located. The W file has now been located. The defendant concedes that save for presumptive prejudice the defendant does not suffer actual prejudice in relation to files and the availability of staff to give evidence at a trial, if there is one.
79 I accept that with the passing of time, these witnesses’ memories in relation to the events which occurred up to 25 years ago will have dimmed. Indisputably there will be presumptive prejudice.
80 The main factors that affect the defendant’s ability to obtain a fair trial are firstly that Mrs Salmon, the plaintiff’s primary caregiver between 1974 and 1981 died in 1996 and secondly there are no records which contain any reference to the sexual assault.
81 Although the plaintiff told Bert McDonald of the sexual assault and he in turn relayed this information to Mr and Mrs Weir the plaintiff cannot be specific as to when it occurred. He thinks that it is around the time of the “Mad Max” movie but could not be sure whether he was at Faulconbridge primary school or Springwood high school. Although there are records with whom the plaintiff spent holidays and weekends, the name Kevin does not appear. However, Mr and Mrs Weir are available to give evidence in relation to this incident although with the effluxion of 17 years their memories may have dimmed. It is not known whether Bert McDonald can be located and be available to give evidence. The defendants have records that dispute the plaintiff’s evidence that he was entrusted into the care of Mr Kevin for a weekend.
82 Although Mrs Salmon cannot give her version of events, her husband and her children can give evidence. The racist comments were allegedly made by Mr Salmon. Mrs Salmon was mainly involved in the chastisement of the plaintiff but Mr Salmon also played a role. While Mr Salmon may not have been at home all of the time the children were and their evidence together with that of Mr Salmon can fill in the gaps. I am not satisfied that the defendant will suffer significant prejudice or will be unable to obtain a fair trial.
83 For the reasons given earlier, the plaintiff has not passed through the s 58(2) or s 60I gateways and his action fails. However, if I am wrong and the plaintiff has passed through a gateway then I would have considered that the plaintiff had discharged his onus and I would have been satisfied that it was just and reasonable to extend time. The notice of motion filed 22 May 1998 is dismissed with costs.
84 The orders I make are:
(1) I decline to extend the limitation period within which to commence proceedings.
(2) The notice of motion filed 22 May 1998 is dismissed.
(3) The plaintiff is to pay the defendant’s costs.**********
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