State of South Australia v Lampard-Trevorrow - [2010] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STATE OF SOUTH AUSTRALIA v LAMPARD-TREVORROW
[2010] SASC 56
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice White)
22 March 2010
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
The plaintiff, an Aboriginal child, was fostered without the consent of his parents after having been admitted to hospital in late 1957 - appeal against award of damages by a trial Judge in respect of injuries caused by the fostering - section 10 of the Aborigines Act 1934 (SA) provided that the Aborigines Protection Board (APB) was “the legal guardian of every Aboriginal child…” - whether s 10 gave the APB the power to foster an Aboriginal child without the consent of the child’s parents.
HELD: section 22 of the Acts Interpretation Act 1915 (SA) permits reference to be made to the purpose of an Act from the outset of the process of statutory construction - in any event, the meaning of “legal guardian” is ambiguous - having regard to the purposes of the Act, textual factors, and the principle that legislation is not taken to abrogate fundamental rights in the absence of the manifestation of a clear intention to do so, s 10 did not give the APB the power to foster an Aboriginal child without the consent of the child’s parents.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXISTENCE OF OBLIGATION - RIGHTS AND INTERESTS AFFECTED BY DECISION
Plaintiff's parents not informed of APB’s intention to foster plaintiff, and not given the opportunity to oppose the plaintiff’s fostering - whether, if s 10 conferred the right to foster the plaintiff without his parents’ consent on the APB, the right was validly exercised.
HELD: rules of natural justice regulate the exercise of the power under s 10 – plaintiff’s parents had an interest in the continuing custody of the plaintiff, and in his welfare, sufficient to give rise to a right to be heard prior to the fostering of the plaintiff - plaintiff had an interest in his parents retaining his care and custody sufficient to give rise to a right to be heard, such right to be exercised by his parents on his behalf, notwithstanding the fact that the APB was the plaintiff's legal guardian under s 10 - even if s 10 conferred the right to foster the plaintiff on the APB, as the plaintiff's parents were not accorded natural justice, the power in s 10 was not validly exercised.

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - LIABILITIES OF THE CROWN - IN TORT - FOR ACTS OF SERVANTS OR AGENTS - LIABILITY OF SERVANT OR AGENT - FOR MISFEASANCE IN PUBLIC OFFICE
Whether State liable in misfeasance in respect of the fostering of the plaintiff.
HELD: the decision to foster the plaintiff was made by either the APB or by its Secretary - both the Secretary and the APB were aware that they did not have the power to foster an Aboriginal child without the consent of the child’s parents - foreseeability, rather than proof of actual foresight of a risk of harm sufficient to establish the tort - Crown liable for the tort of the APB or of the Secretary - Judge's finding to that effect upheld.

TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT - FALSE IMPRISONMENT - ESSENTIALS OF CAUSE OF ACTION
Plaintiff fostered to a family when 13 months old - while he was with the foster family, the plaintiff had the same freedom of movement as other children of a like age - whether plaintiff subject to a “total restraint” of the kind necessary to make out a cause of action in false imprisonment.
HELD: neither an awareness of the detention, nor physical capacity to exercise the freedom of movement denied by the restraint in question, is a prerequisite to the establishment of the tort - the plaintiff's restraint during his placement with the foster family was attributable to the family's obligation to care for him and to his continuing immaturity, and is not a restraint of the required kind for the purposes of the tort - trial Judge's finding that State liable to the plaintiff for wrongful detention reversed.

EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS - GENERAL PRINCIPLES
By statute, APB and the plaintiff were in a relationship of guardian and ward - whether APB and plaintiff in a fiduciary relationship - whether APB’s failure to inform the plaintiff that he had been removed without legal authority, or to provide him with access to professional advice about his rights arising out of the removal, constituted a breach of fiduciary duty.
HELD: no fiduciary relationship between APB and Aboriginal children generally - by taking control of the custody of the plaintiff, the APB might have placed itself in a fiduciary relationship - even if the plaintiff and the APB were in a fiduciary relationship, it would not necessarily follow that everything that the APB did was the subject of a fiduciary duty - no breach of a recognised fiduciary duty - no need to invoke fiduciary principles - trial Judge’s finding that State liable to plaintiff for breach of fiduciary duty reversed.

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - GOVERNMENT AND PUBLIC AUTHORITIES
Whether imposition of a common law duty of care on the APB was forbidden by 1934 Act or inconsistent with statutory scheme - whether APB owed plaintiff a duty of care in negligence in arranging his placement with a foster family - if so, whether duty of care breached.
HELD: imposition of a duty of care in tort not forbidden by the 1934 Act or inconsistent with its purposes - at the relevant time, it was reasonably foreseeable that separating a child from its parents would give rise to a risk of harm to the child - APB owed plaintiff a duty of care to avoid causing injury by removing him from the care of his parents - APB did not adequately satisfy itself that the risk of harm from leaving him with his mother exceeded the risk of harm from removing him from her - Judge's finding that APB breached duty of care upheld.

LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - PRINCIPLES UPON WHICH DISCRETION EXERCISED
Whether discretion to extend time within which to commence proceedings enlivened under s 48 of the Limitation of Actions Act 1936 (SA), and if so, whether it should have been exercised in favour of an extension of time.
HELD: discretion to extend time enlivened under either s 48(3)(b)(i) or (ii) - conduct the subject of s 48(3)(b)(ii) need not be the sole cause of the plaintiff’s failure to commence proceedings within time - "conduct" for the purposes of s 48(3)(b)(ii) embraces not only affirmative action, but also, in this case, the State’s failure to disclose relevant information to the plaintiff relating to his placement with the foster family - Judge’s decision to grant an extension of time upheld.
Appeal dismissed.
Aborigines Act 1911 (SA) s 10; Aborigines Act 1934 (SA) s 5, s 7, s 10, s 38, s 39; Aboriginal Affairs Act 1962 (SA); Acts Interpretation Act 1915 (SA) s 22; Crown Proceedings Act 1992 (SA) s 4(1); Limitation of Actions Act 1936 (SA) s 45, s 48; Maintenance Act 1926 (SA); Ordinance 12 of 1844 s 5, referred to.
Annetts v McCann (1990) 170 CLR 596; Breen v Williams (1995-1996) 186 CLR 71; CIC Insurance Ltd v Blacktown Football Club Ltd (1997) 187 CLR 384; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Fox v Percy (2003) 214 CLR 118; J v Lieschke (1986-1987) 162 CLR 447; James v The Commonwealth (1938-1939) 62 CLR 339; Kioa v West (1985) 159 CLR 550; New South Wales v Fahy (2007) 232 CLR 486; Plaintiff S157/2000 v The Commonwealth (2003) 211 CLR 476; Pyrenees Shire Council v Day (1998) 192 CLR 330; Sanders v Snell (1998) 196 CLR 329; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; Finlay v Silcon Industries Pty Ltd (2003) 229 LSJS 14; Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44; Paramasivam v Flynn (1998) 160 ALR 203; Racz v Home Office [1994] 2 AC 45; Tusyn v Tasmania (2004) 13 Tas R 51, applied.
Sullivan v Moody (2001) 207 CLR 562, distinguished.
Bennett v Minister of Community Welfare (1992) 176 CLR 408; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; New South Wales v Lepore (2003) 212 CLR 511; Northern Territory v Mengel (1996) 185 CLR 307; Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512; Symes v Mahon [1922] SASR 447; Trevorrow v South Australia (No 5) (2007) 98 SASR 136; Garrett v Attorney-General [1997] 2 NZLR 332; Go v The Queen (1990) 73 NTR 1; Hewer v Bryant [1970] 1 QB 357; Louis v The Commonwealth (1987) 87 FLR 277; Murray v Ministry of Defence [1988] 1 WLR 692; Myer Stores Ltd v Soo [1991] 2 VR 597; R v Bournewood Community and Mental Health NHS Trust; ex parte L [1999] 1 AC 458; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Williams v The Minister, Aboriginal Land Rights Act 1983 (1999) 25 Fam LR 86; X (Minors) v Bedfordshire County Council [1995] 2 AC 633, discussed.
Clay v Clay (2001) 202 CLR 410; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; Potter v Minahan (1908) 7 CLR 277; Sargood Brothers v The Commonwealth (1910) 11 CLR 258; Warren v Coombes (1978-1979) 142 CLR 531; Burch v SA (1998) 71 SASR 12; Jacobs v OneSteel Manufacturing Pty Ltd and Workcover Corporation of SA (2006) 93 SASR 568; TransAdelaide v Evans (2005) 98 SASR 394; Attorney-General v Prince and Gardner [1998] 1 NZLR 262; Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] 1 QB 716; Cubillo v The Commonwealth (2001) 112 FCR 455; Dunlop v Woollahra Municipal Council [1982] AC 158; Herring v Boyle (1834) 1 Cr M & R 377; Jones v Swansea City Council [1990] 1 WLR 54; Jones v Swansea City Council [1990] 1 WLR 1453, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Legal guardian", "Conduct"

STATE OF SOUTH AUSTRALIA v LAMPARD-TREVORROW
[2010] SASC 56
Full Court: Doyle CJ, Duggan and White JJ
The Court:
Introduction
Facts
Challenges to findings of fact
The missing evidence
The Trevorrow family circumstances
Bruce Trevorrow’s condition on admission to the ACH and his recovery
Absence of consent to the placement of Bruce Trevorrow with Mrs Davies
Adequacy of the enquiry into the Trevorrow family circumstances
Enquiry into Mrs Davies’ suitability, and adequacy of training
Whether Mrs Angas was prejudiced
Checking by the APB on the circumstances at the Davies home
Failure to return Bruce Trevorrow after the 1962 Act was enacted
Indications that soon after placement Bruce Trevorrow was disturbed
Inadequate preparation for Bruce Trevorrow’s return to his mother
Findings of fact – a summary
The APB’s power under s 10
Procedural Fairness
Misfeasance in public office
Wrongful detention
Breach of fiduciary duty
Negligence
Duty of care
Standard of care
Extension of time
The State’s plea of laches
Other matters
Conclusion
Introduction

On Christmas day 1957 Mr and Mrs Evans drove Bruce Trevorrow, then an Aboriginal child aged 13 months, from Meningie, where he lived with his parents, to the Adelaide Children’s Hospital (“ACH”). They probably did this at the request of Joseph Trevorrow, the father of Bruce Trevorrow. Joseph Trevorrow thought that Bruce Trevorrow was suffering stomach pains that called for urgent medical treatment.
There is no record of anyone visiting Bruce Trevorrow while he was in hospital, but nor do the available records have a place to record visits.
Bruce Trevorrow recovered quite quickly. On 6 January 1958 he was discharged into the care of Mr and Mrs Davies. They wanted to adopt or to foster a child. Mrs Angas, a welfare officer working in the Aborigines Department, made arrangements for Bruce Trevorrow to be put into the care of the Davies. In this respect she acted on behalf of the Aborigines Protection Board (“the APB”), a statutory body corporate, constituted by the Aborigines Act 1934 (SA) (“the 1934 Act”).
The trial Judge found that neither Joseph Trevorrow nor Thora Karpany, the natural parents, knew about or consented to the placement of Bruce Trevorrow with the Davies family.
For a number of years Bruce Trevorrow’s parents were not told of his whereabouts, and did not know where he was, even though periodically they were in contact with officers of the Department and with the APB. Joseph Trevorrow did not see Bruce Trevorrow again. Joseph Trevorrow died in early 1966.
In late 1966 the Aboriginal Affairs Board (“the AAB”), which had replaced the APB, or officers of the Department of Aboriginal Affairs began to take steps to put Bruce Trevorrow into contact with his natural family. In 1967 Bruce Trevorrow began to live with his natural mother (who had married Cyril Karpany some years earlier) and his siblings and step siblings.
Bruce Trevorrow had a troubled early life. He showed signs of developmental problems from a young age. He spent part of his adolescence, after he was about 11 years of age, in and out of institutions.
Bruce Trevorrow claimed that his removal from his natural family, and his placement with the Davies family, was unlawful. He claimed that the separation from his natural mother and family, and the manner in which he was reunited with his natural family, all contributed to a loss of cultural identity, depression, alcoholism, poor health, poor relationships and erratic employment history.
The Judge found that Mrs Angas and the APB acted without power when they placed Bruce Trevorrow in the care and custody of Mrs Davies, who was (after the event) approved as a foster parent. The Judge found that Joseph Trevorrow and Thora Karpany did not consent to the placement, at the time or later. The Judge granted an extension of time for the commencement of proceedings by Bruce Trevorrow. The Judge found that Bruce Trevorrow was entitled to damages for misfeasance in public office, for wrongful imprisonment, for breach of a fiduciary duty (although he did not assess the damages for breach of this duty) and for breach of a duty of care owed to Bruce Trevorrow. The Judge awarded substantial damages.
Bruce Trevorrow died after judgment was entered for him. His widow, as executrix of his estate, is the respondent to the appeal.
The State now appeals against the Judge’s decision and findings. The State challenges a number of findings of fact by the Judge. It also challenges the finding that the respective causes of action were made out as against persons and entities for whose conduct the State is legally answerable. The State does not challenge the Judge’s findings on causation, nor does it challenge the assessment of damages.
The trial was a lengthy one. It occupied about 38 days. The crucial events occurred between December 1957 and 1967. Many files and documents that were part of the records kept by various government departments and statutory bodies were no longer available. It is possible that these contained relevant, indeed important, documents. No-one can now tell. On the other hand, a lot of documentary material was still available. The Judge heard from a number of witnesses who had been involved in relevant events, including events between 1957 and 1967. But a number of potential witnesses had died, or were too frail to give evidence.
What emerges from all this is a sad story of a very young child suddenly separated from his parents and family, and the story of the impact of that removal on him. No doubt the officers of the Department and of the APB, and others involved in the relevant events, thought that decisions they made and actions they took were in Bruce Trevorrow’s best interests. They were applying policies that are now seen as misguided, although even then there were some who strongly opposed the removal of Aboriginal children from their natural families. In considering the events affecting and surrounding Bruce Trevorrow, it is necessary to bear in mind the different attitudes of the time, and the impact of the belief that part Aboriginal children in particular would be better off if raised by white families rather than by their natural families.
The task of the Judge, and of this Court on appeal, is to consider evidence of events, some of which occurred more than 50 years ago, and to determine the claims made by Bruce Trevorrow about the legality of his placement with the Davies, and its effects on him. That task is complicated by the loss or absence of documents and evidence that might be relevant.
Facts
The trial Judge has dealt with a mass of documentary evidence and a substantial body of oral evidence, including a substantial body of expert evidence. The trial Judge has made very detailed findings, in a lengthy and thorough judgment. We will, as far as possible, limit our attention to those matters that are still in dispute. It will be necessary to summarise the Judge’s reasons, but when matters are no longer in dispute that summary will be as brief as the circumstances permit. This means that those who wish to check the sources and evidence relied on by the Judge will need to refer to the reasons of the Judge: Trevorrow v South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136.
We will outline the facts as found by the Judge. In due course we will deal with challenges to the Judge’s factual findings. Then we will deal with the issues of law.
Bruce Trevorrow was born on 20 November 1956 in Adelaide. As already mentioned, his parents were Joseph Trevorrow and Thora Karpany. Both were Aboriginals. They were living together at Meningie, about 150 kilometres by road south-east of Adelaide. They were not married.
The Trevorrow family lived in a house built of iron and sacks in a camp outside Meningie. There were three other children: Hilda aged nine, George aged five and Tom aged three: [97].
The Judge accepted evidence from Bruce Trevorrow’s siblings and half siblings, together with certain documentary evidence, about the family circumstances: [98]-[101], [106]-[108]. The Judge found that Joseph Trevorrow was in regular although casual employment. He found that Thora was “a loving mother who cared for her children and the home”: [100]. In particular, he found that Bruce Trevorrow was well cared for, even though he had had a difficult birth and had had to stay in hospital for a time: [827].
The State challenges these findings about the Trevorrow family, and about the care of the children. The State relies on letters and reports in certain files suggesting that Joseph Trevorrow drank to excess; suggesting that he allowed his children to drink alcohol; that conditions in the camp were quite unhealthy; recording that his daughter Rita attempted suicide in February or March of 1957, and suggesting that the children were not properly supervised. On the other hand, the local police sergeant, Sergeant Liebing, prepared a report on 14 August 1957 which made no adverse comment about the care of the children, although it was not a report directed to that topic: [101]. Sergeant Liebing provided a report to the APB about the circumstances in which Bruce Trevorrow came to be admitted to hospital. That report contained no suggestion of neglect or mistreatment: [109]. On 17 March 1958 Mr Weightman, a senior welfare officer with the Aborigines Department, visited the family home. While he noted that the living conditions were not ideal, he said that he “could not recommend that any child be committed due to the unsatisfactory nature of the home”: [122]-[124].

On the afternoon of Christmas day 1957, Joseph Trevorrow went to the Meningie Police Station, and spoke to Sergeant Liebing. He expressed concern about Bruce Trevorrow suffering from stomach pains. The sergeant could not arrange for an ambulance to take Bruce Trevorrow to hospital. In the end, Mr and Mrs Evans (who lived locally and were related to the Trevorrows) took Bruce Trevorrow to the ACH. It seems that they left him there, because there is no record of anyone being in attendance. It is possible that they remained there with him for some time.
The ACH notes record that Bruce Trevorrow was admitted to hospital at 8.30 pm that day: D162. The notes record a “primary” diagnosis of malnutrition, and that the sequel was “infective diarrhoea”. At the bottom of the relevant card or sheet, in the space for consent to the performance of an operative procedure, appear the words “neglected child – without parents”. There is no way of knowing who was the origin of that information. It is unlikely to have been Mr or Mrs Evans, because they knew that Bruce Trevorrow had parents. The “history sheet” records:
Child unwell for ?1/52 … he is one of 3 ¼ cast children. The other two children are neglected. The mother has cleared out and father is boozing. Apparently father is nourishing the children with alcohol (could Almoner please investigate).
There are then some medical observations. On the bottom of this card or sheet, under “family history” also appear the words “neglected child without parents”. A note on an “examination sheet” states:
Obviously neglected 1/4 caste child.
A note dated 2 January 1958 records in part:
Almoner has been investigating home conditions. Will probably have a foster parent.
Bruce Trevorrow recovered quite quickly, and was discharged on 6 January 1958: [112].
The trial Judge was not prepared to accept these records as accurate. He was influenced by his findings about the conditions at the Trevorrow home. On his findings, the basis for a diagnosis that Bruce Trevorrow was neglected was flimsy. The Judge also found that Thora Karpany had not “cleared out”, although she had left Joseph Trevorrow for about a week: [115]. The Judge found that the ACH notes conflicted with Sergeant Liebing’s report of 14 August 1957, which report he apparently accepted as a reliable guide to circumstances in the Trevorrow home. The Judge heard expert medical evidence as to the significance of the findings made on admission, and as to the diagnosis of malnutrition. Relying on that evidence he found at [113] and at [114] that Bruce Trevorrow was suffering from bacterial gastroenteritis, and that that condition would lead to dehydration and rapid weight loss. In other words, the Judge did not accept the opinion that Bruce Trevorrow was neglected or was suffering from malnutrition. He pointed also to the concern that Joseph Trevorrow had shown in wanting Bruce Trevorrow taken to hospital on Christmas day: [115].
The State challenges the Judge’s decision on these matters. It relies upon the entries in the medical records, and the evidence previously referred to suggesting that conditions in the Trevorrow home were unsatisfactory. It challenges the finding that Bruce Trevorrow recovered quite quickly. It challenges the reliance on Sergeant Liebing’s report to reject the findings in the ACH notes.
The Judge records that on 6 January 1958 Martha Davies and Frank Davies went to the ACH: [117]. They had wanted to adopt a child. Bruce Trevorrow was discharged into their care. There appears to have been no “paperwork” relating to this: [117]. There was however a requisition on a departmental form, dated 6 January 1958, requesting provision of clothing for Bruce Lampard. The requisition appears to be signed by Mrs Angas: [D52 doc 6].
Mrs Davies had not previously fostered a child in South Australia. On 5 February 1958 the secretary of the APB wrote to the secretary of the Children’s Welfare Department enclosing an application for Mrs Davies “… to act as foster-mother, who has in her care Bruce Lampard, illegitimate son of Thora Lampard and Joseph Trevorra [sic] Meningie”: [D52 doc 4]. This is apparently an application for a licence from the Children’s Welfare and Public Relief Board (the CWPR Board”) under s 167 of the Maintenance Act 1926 (SA). We assume that that licence was granted, although it does not appear to be in evidence. On 20 February 1958 the Secretary of the APB wrote to Mrs Davies informing her that that day the APB had agreed to pay maintenance at the rate of 30 shillings per week ($3 per week) on behalf of Bruce Trevorrow, as from 6 January 1958: [D52 doc 3].
The Judge found neither Joseph Trevorrow nor Thora Karpany consented to the placement of their son with Mrs Davies, nor was either of them aware that the decision had been made, nor did they know where their son had been placed: [1] and [991].
The Judge was critical of the procedure that was followed. The Judge found that the decision to place Bruce Trevorrow with Mrs Davies was made by Mrs Angas: [1077]. The Judge found that the material in the ACH notes was unreliable, and an inadequate basis for the decision that was made: [1077]. He found that Mrs Angas was aware of Sergeant Liebing’s report of 14 August 1957, which the Judge took as supporting the view that the Trevorrow home was a suitable one: see above at [20]. The Judge found that no enquiry was made as to the Trevorrow family circumstances, before the decision was made to foster the child. The Judge found that a “rudimentary” enquiry would have revealed that the family home was satisfactory: [1077]. The Judge referred to the report by Mr Weightman of 17 March 1958, which described the home as reasonably clean and tidy. The report included the comment by Mr Weightman that he “could not recommend that any child be committed due to the unsatisfactory nature of the home”: [123].
The Judge found that there was no proper enquiry made into the background and suitability of Mrs Davies, before the fostering took place: [1078]. He found that she had no training for the role of foster mother, in particular, for the role of foster mother of an Aboriginal child: [840]. He accepted that she was a “loving person”, but found that she was not “equipped to handle the problems that developed”: [840].
The minutes of the APB for this period cannot now be found. It is not known whether they have been destroyed or misplaced. The APB must have approved the placement of Bruce Trevorrow with Mrs Davies as a foster child, at least from the time when it agreed to pay maintenance to her. The CWPR Board, as previously noted, must have granted a licence to Mrs Davies to act as a foster mother. There is no indication of what processes it followed before doing so.
The Judge found that in placing children with foster parents the APB did not “specifically consider the circumstances or the merits of those placements”: [480].
The State makes numerous attacks on these findings by the Judge.
It challenges the findings that Joseph Trevorrow and Thora Karpany did not consent to the fostering of Bruce Trevorrow. It submits that the evidence supports a finding that they did consent. In the alternative, the missing records and unavailable evidence mean that the finding by the Judge that there was no consent could not be safely made.
The State challenges the finding that Mrs Angas acted on inadequate material. It challenges the finding that a rudimentary enquiry would have disclosed circumstances not supporting the decision to foster Bruce Trevorrow. It challenges the finding that no due enquiry was made into the Trevorrow family circumstances.
The State challenges the finding that Mrs Davies received no appropriate training. It also challenges the finding that there was no proper enquiry into her circumstances before putting Bruce Trevorrow in her care, and before approving her as a foster mother. It challenges the finding that the APB did not consider the wisdom of particular placements with foster parents.
There was periodic contact between the Department and members of the Trevorrow family before and after the fostering of Bruce Trevorrow. Issues arose before the Judge as to the attitude of Thora Karpany to the fostering of Bruce Trevorrow, and in particular whether she acquiesced in or consented to the fostering after the event, or whether her attitude supported a conclusion that she had consented from the outset. The Judge found that she did enquire after Bruce Trevorrow from time to time, and that neither parent consented to his removal.
One of the files contained the following letter from Thora Karpany to Mrs Angas, dated 25 July 1958 [D52 doc 7]:
Dear Mrs Angas
I am writing to ask if you will let me know how baby Bruce is and how long before I can have him home as I have not forgot I got a baby in there and I would like something defenat [sic] about him this time trust you will let me know as soon as possible.
Yours faithfully [Thora]
Meningie.
The letter is a touching one. It received the following response dated 19 August 1958, which we can only describe as formal [D52 doc 8]:
Dear Madam
With reference to your letter dated 27/5/58 [sic].
Bruce is making good progress but as yet the doctor does not consider him fit to go home.
The letter then referred to another matter.
The Judge found that this letter was misleading, because there was no medical reason why Bruce Trevorrow could not be returned to his natural parents. At the time Bruce Trevorrow was living with the Davies family, and apart from routine consultations with a doctor appeared to be progressing well, according to the Judge: [127]-[128].
In May 1959 Mrs Vizzard made contact with the APB. It appears that she had been helping Joseph Trevorrow care for his children George (then seven years) and Thomas (then five years). She could no longer do so. By letter of 15 May 1959 to Joseph Trevorrow the Secretary of the APB suggested that the two boys be placed in a home at Semaphore, a north-western suburb of Adelaide: [P79D doc 429] .
On the same day the Secretary of the APB wrote to the officer in charge of the Meningie Police Station, asking him if he “would try to persuade Trevorrow that this [putting the two boys under the care of the APB] would be in his children’s best interests”: [P79D doc 428]. In response, Constable Goldie wrote the following letter on 18 May 1959 to the Secretary of the APB [P79D doc 430]:
Dear Sir,
In reply to your letter dated 15^th May, 1959, I have to report that I have been in contact with Joseph Trevorrow Snr., regarding the matter of allowing the two children Frank George Trevorrow and Thomas Edward Trevorrow to be placed in the home conducted by Mr. W.J. Sutton at Semaphore.
I have explained to Mr. Trevorrow the contents of the letter which you sent and pointed out to him that the boys would receive a good education and would be very happy at the home, also that the aborigines Protection Board would fully maintain the boys while they were at the home.
Mr. Trevorrow, however, states that he would not like to let the boys go at present as they are happy and want for nothing. But, if at any time he feels that they are not receiving the care that they should have he will send them to the home.
At present the boys are being cared for by their mother, Mrs. Thora Karpany and she states that she will look after them for as long as she possibly can. The boys have been in her care for the past six weeks.
I have seen the two boys in question and they appear to be quite happy, fit and well.
If it is desired, I shall approach Joseph Trevorrow Snr., again on the subject and try to persuade him to allow the children to be placed in the home.
Mrs. Thora Karpany has asked me to mention another matter to you. She says that she has a child, Bruce Trevorrow, aged two years, in the care of the Aborigines Protection Board. Mrs. Karpany states that the child has been in the care of the Board for the past eighteen months and although she has tried on numerous occasions to see the child she has not been allowed to do so. I wonder if you could possibly look into this matter please and inform Mrs. Karpany whether she would be allowed to see the child or not.
Yours faithfully
R. Goldie. Const. No 1107 R/ng.O.
This letter provoked the following reply from the Secretary of the APB, on 27 May 1959 [P79D doc 435]:
Dear Sir,
I acknowledge receipt of your letter dated 18^th May, 1959 for which I thank you.
With reference to Bruce Trevorrow, aged 2 years, I wish to advise that Mrs. Thora Karpany, formerly Lampard, has for many years lived improperly with Joseph Trevorrow, Sr. She has proved to be a most unsuitable mother for any of her children, and in the case of the above mentioned child who was removed from her care due to the fact that he had been left by his mother in a critical condition.
It is most unlikely that I would be able to agree to this child being returned to the mother as her home is not in any way satisfactory for the benefit of the childs’ health.
As far as I am aware Mrs. Karpany has never requested that she actually see Bruce, but has demanded that the child be returned to her care.
It would be possible for Mrs. Karpany to see Bruce in the presence of a Welfare Officer if suitable arrangements were made in advance. It would also be necessary for her to fully understand that the child will not be returned to her.
The following children are illegitimate and therefore the Children’s Welfare Department supervise their well being:-
Frank George Trevorrow,
Bruce Trevorrow,
Hilde Trevorrow,
Thomas Trevorrow.
If the Welfare Staff of this Department becomes aware that an illegitimate child is being in any way neglected, it is necessary for such matters to be reported to the Children’s Welfare and Public Relief Board.
I thank you for your interest and co-operation in these matters.
Yours faithfully
Secretary,
Aborigines Protection Board.
Initials on the letters from the Secretary of the APB indicate that they were prepared by Mrs Angas.
The Judge found on the basis of this material that Thora Karpany consistently sought the return of her son, over a period of time: [132]. He found that her requests were ignored or rejected: [132]. He described the Secretary’s letter of 27 May 1959 as “disingenuous”, when it said that Thora had never requested that she see Bruce Trevorrow.
Our impression of the letter of 27 May 1959 is that it reflects a lack of sympathy for the position of the natural mother of Bruce Trevorrow. It might be seen as containing an implicit threat that the other Trevorrow children might be removed from the family. If Sergeant Goldie, whose intervention appears to have been well meaning, communicated this to Joseph Trevorrow or Thora Karpany, one can imagine that it would have discouraged them from challenging the actions of the APB.
On the basis of these letters, and other letters, the Judge made a finding that Mrs Angas “… stood resolutely in the way of the plaintiff’s return to Thora or even of Thora having contact with her child”: [139]. The Judge considered that the allegations made in the letter of 27 May 1959 were “materially incorrect”: [141]. The Judge referred to a court report, prepared by Mrs Angas years later in 1977, and relating to Bruce Trevorrow. In it Mrs Angas recorded that Thora had “… consistently approached the Protector requesting the return of her son, however these requests were not heeded until the change in the legislation …”: [135]. This is a reference to the enactment of the Aboriginal Affairs Act 1962 (SA) (“the 1962 Act”).
On the basis of this material, as we have already noted, the Judge found that Thora Karpany had continued to request the return of her child, and never consented to the placement.
He found that the Trevorrow children were being well cared for and that Thora was a suitable mother: [141].
The Judge also found, on the basis of the material referred to above, that Mrs Angas was “prejudiced” against Joseph Trevorrow and Thora Karpany: [142]. He added that she may well have been “well intentioned but unwittingly prejudiced”: [144]. He found that there was no “medical reason” why Bruce Trevorrow could not have been returned to his mother, and that Mrs Angas in the letter of 19 August 1958 referred to the opinion of an unidentified doctor as a “ruse”, to avoid Bruce Trevorrow being returned to his mother: [144].
The State makes a number of challenges to these findings.
It challenges the finding that Mrs Angas was prejudiced, even unconsciously, against Joseph Trevorrow and Thora Karpany, and the finding that her letter of 19 August 1958 was, inadvertently or deliberately, misleading.
Bruce Trevorrow lived with the Davies family until May 1967, when he resumed living with his mother. There are two relevant aspects of this period of his life. First, his life with the Davies family and his development. The Judge ultimately made findings as follows:
[1170]I find that the removal of the plaintiff from his family caused injury and damage. That injury and damage included the distress following removal and later short and long term disabilities, manifested through childhood and adult life.
[1171]The State, at relevant times, either knew or ought to have been aware that the removal of the plaintiff from his natural family was likely to cause the sort of damage that the plaintiff has in fact suffered. The risk of injury and damage was reasonably foreseeable.
As will appear, the Judge found that Bruce Trevorrow’s behaviour as a child was indicative of the injury that he sustained. The second relevant aspect is the circumstances in which Bruce Trevorrow came into contact with his natural family, and returned to live with them. As to that, the Judge made the following findings:
[198]The plaintiff was obviously ill-equipped to handle the return. As foreseen by Dr Moffatt, the plaintiff had great difficulty coping with the return and adjusting to his new life with his natural family. The stress of the return obviously left the plaintiff confused, lost, perplexed and isolated. He was overwhelmed. The State did little to prepare any of the three parties – the plaintiff, Thora or the Davies – for the return of the plaintiff to his natural family.
…
[1172]I find that the return of the plaintiff to his mother and natural family, in the circumstances in which it occurred, exacerbated the damage that had already occurred and was already apparent by that time.
[1173]The State, at relevant times, knew or ought to have known that returning the plaintiff to his natural family in the way in which it was done was likely to cause the plaintiff further damage. The risk of this occurring was reasonably foreseeable.
[1174]On the plaintiff’s committal to an institution in July 1968, the plaintiff was suffering from serious disabilities. The injury, loss and damage that he was suffering at this time had been substantially caused by his removal. This removal was a material cause of his later mental illness. The inability of his foster parents to meet his emotional needs and the circumstances of his return were also material contributing causes to what followed in the plaintiff’s adolescence and adult life.
[1175]The plaintiff entered adult life with an impaired ability to cope with the problems of indigenous life. He lacked the personal resources developed by his siblings.
[1176]The plaintiff has suffered psychiatric and psychological illness. It has been accepted that this may be fairly described as a major depressive disorder. From time to time the illness has been grave. His problems and inability to cope may be contrasted with the resilience demonstrated by his siblings.
The Judge found that the first time anyone from the APB or AAB or from the Children’s Welfare Department checked on Bruce Trevorrow’s progress was in February 1964, about six years after his placement with Mrs Davies: [146]. The first visit was by an officer of the then Department of Aboriginal Affairs.

The Judge found that neither the APB, nor the CWPR Board, made adequate checks on Bruce Trevorrow and the circumstances in the Davies family: [1059]-[1060]. The finding appears to relate, mainly at least, to the time of the first visit.
The 1962 Act came into operation on 28 February 1963. It repealed the 1934 Act. It abolished the APB, and replaced it with an Aboriginal Affairs Board, which had fewer powers than did the APB. The Aborigines Department became the Department of Aboriginal Affairs. Aboriginals, and Aboriginal children, were placed under the same legal regime as were other residents of South Australia. As the Judge notes, the legislation reflected a shift in policy from assimilation to integration: [396].
A significant aspect of this legislative change is that if the 1934 Act deprived Thora Karpany of the legal guardianship of Bruce Trevorrow, as the State contends, that guardianship reverted to Thora Karpany with the enactment of the 1962 Act. There is no evidence suggesting that, upon the 1962 Act coming into force, officers of the State took steps to inform Thora of the change, or to return Bruce Trevorrow to her custody. It was only when Thora raised the matter with the Department in 1966 that things began to happen.
The Judge noted and rejected a submission by the State that Thora was adequately informed of the change through newspapers of the time: [172]. We agree with the Judge on that point.
We return to the narrative.
The Judge found that in his early years Bruce Trevorrow lived happily with the Davies family: [147]. But in December 1959 he was taken to the ACH because he was pulling out his hair. This was diagnosed as trichotilliomania, and as evidence of an early depressive condition: [149]. He developed a speech defect, and in late 1963 arrangements were made for him to have speech therapy at the ACH. By January 1965 the speech defect was almost controlled: [150].
From 1964 officers of the Department of Aboriginal Affairs regularly visited the Davies home to assess Bruce Trevorrow. Reports were to the effect that the family conditions were satisfactory. But in 1964 Bruce Trevorrow’s behaviour deteriorated. Mrs Davies was unwell at the time. The Judge found that in about 1965 it was likely that Bruce Trevorrow became aware that he was not a natural member of the Davies family: [159]. Because of concerns about Bruce Trevorrow’s behaviour, officers of the Department referred Mrs Davies to the Child Guidance Clinic in September 1965: [161]. There he came under the care of Dr Moffatt, who thereafter had regular contact with him. She kept detailed notes, and gave evidence at the hearing. No criticism could be made of the care that was taken to deal with Bruce Trevorrow’s welfare from this time on, subject to the handling of the return to his natural family. Bruce Trevorrow’s behaviour varied during this time, sometimes improving, sometimes regressing. It was clear to all concerned that he had problems. Ultimately the Judge found at [1191]:
[1191]I am satisfied that the plaintiff has suffered from depression since early childhood. He will continue in the future to suffer from depression. As earlier observed, the symptoms associated with his depression have fluctuated and there have been periods of his life when he has been able to work, have social contact, participate in family activities and to a material degree enjoy life. On the other hand there have been significant periods of his life when his state of depression has led to symptoms that have caused him considerable distress. A review of the hospital records from the late 1960s to the present time disclose depression as an ongoing diagnosis. His depressive state is a mental illness and is compensable. This illness has led him to abuse alcohol which in turn has exacerbated his depressive symptoms. His depression has made it more difficult to resist alcohol abuse from time to time.
The Judge accepted evidence given before him by Dr Le Page, a psychiatrist who was in practice at the time when Bruce Trevorrow was being treated at the Child Guidance Clinic. The Judge found at [1148]-[1149]:
[1148]It was Dr Le Page’s view that by the age of nine, the plaintiff was suffering an identity crisis, separation anxiety, depression and was exhibiting aggressive behaviour. As a child in the Davies home, he developed ongoing symptoms of insecurity. Martha and Frank had been unable to provide that security. At the age of ten, the plaintiff was returned to his natural mother. Dr Le Page discussed the plaintiff’s return to Thora and expressed the following view:
[The plaintiff] became restless, agitated and his speech impediment intensified. This demonstrates fear of leaving known security (the deficient) for an unknown situation. This transfer led to anti-social behaviour and stealing which caused him to become a ward of the state until 18.
[1149]It was Dr Le Page’s opinion that by the time that the plaintiff was placed in an institution, when aged about 11 years, he was suffering depression, rejection, emotional isolation, alienation and anger. Institutional life did not assist him to overcome these problems. Dr Le Page discussed the effects of institutional care on the plaintiff and observed:
During this period most of his previous problems intensified, particularly anger, depression, rejection and emotional isolation and alienation.
He did not belong to any person or place. He had been rejected by the white culture and did not have any attachment to, or affinity for the Aboriginal culture. He was estranged, helpless and hopeless with no purpose in life. He took these findings with him into adult life. He sought contact with the Matron through real or imagined illness whenever possible, still looking for a mother figure.
The plaintiff entered adult life without the resources to cope satisfactorily.
A similar opinion was expressed by Professor McFarlane, which evidence the Judge also accepted: [1157]. Similar evidence was given by Dr Jureidini which the Judge also accepted: [1151]-[1154].
The Judge notes that in its final submissions before him, the State accepted that Bruce Trevorrow had suffered a major depressive disorder for many years: [1163].
The Judge found that Mrs Davies was not equipped to handle the problems that developed with Bruce Trevorrow, and that she was an “unsuitable foster mother”: [840] and [1078]. The Judge found that Bruce Trevorrow was “emotionally scarred” by threats that Mrs Davies made to send him away from his foster family. This appears to be linked to her lack of training or preparation: [840]. The State challenges these findings. It also challenges the finding that adequate checks were not made on Bruce Trevorrow’s progress. It challenges the finding about threats to send Bruce Trevorrow away.
We now turn to the circumstances in which Bruce Trevorrow resumed contact with his natural family.
In 1966 Mr Bennett, an officer of the Department with responsibility for Victor Harbour, where Thora was living, spoke to her by telephone. She explained that she wanted to see Bruce Trevorrow, whom she had not seen since he was an infant: [173]. When Mr Bennett asked why she had not asked to see him before, she explained that she had not had “decent housing”, and did not want to try to regain custody while she was living in “substandard accommodation”. That answer appears to hark back to the attitude evidenced by the Secretary’s letter of 27 May 1959 (above).
The Department made arrangements for Bruce Trevorrow to meet his natural mother and siblings on 20 November 1966 (his tenth birthday) at the Department offices in Adelaide: [174]. Thora Karpany asked that Bruce visit her during the school holidays. Arrangements were made for a visit in late January 1967. Bruce Trevorrow was to stay with Thora for a weekend. The Judge notes that Thora told Mr Bennett that she would like to have Bruce Trevorrow live with her permanently, but suggested another holiday before a permanent decision was made: [181]. By now Bruce Trevorrow’s behaviour was deteriorating again, and Mrs Davies told an officer of the Department that she could not cope with him: [182].
It is not necessary to go into the details of the events that then occurred, nor of the parties’ attitudes. The Judge’s summary at [189] adequately paints the picture:
[189]At this time, in or about May 1967, the plaintiff was in a disturbed and anxious state. He lacked the maturity to understand the implication of the events taking place. Thora was confused. She had a mother’s natural desire to be with her child, but she obviously had reservations about what was in the plaintiff’s best interests. Martha too was confused. At times she wanted nothing to do with the plaintiff and other times she wanted him to stay as a member of the Davies family. All parties, the plaintiff, Thora and Martha were ill prepared to cope with the events that followed.
In May 1967 Bruce Trevorrow was taken to Victor Harbour to spend the school holidays with his family. During the course of that visit officers of the Department decided that this would be a permanent return: [190]. It is not clear when Bruce Trevorrow was told that the arrangement was permanent. Not surprisingly there were indications that Bruce Trevorrow had difficulty coping with his new environment: [191]. As to the return of Bruce Trevorrow to his family, the Judge ultimately made the following finding at [1090]:
[1090]The manner of return took place in circumstances that fell below the standard of care required. There was a breach of duty. As earlier observed, the State in my view was guilty of a breach of duty of care in and about the return of the plaintiff to his natural family. Had the return been properly handled, ongoing treatment would have been provided as required throughout his adolescence. It is possible that even if properly handled, the return to his family may have been unsuccessful, and so it was therefore incumbent on the State to monitor the plaintiff’s ongoing mental health throughout his adolescence. The failure to provide more effective treatment to address the plaintiff’s problems permitted them to compound and become further entrenched, making the treatment in adult life all the more difficult.
There were still problems with Bruce Trevorrow’s behaviour, and in June 1968 he came to the attention of the police at Victor Harbour, because of minor offences committed by him: [193]. The Judge said at [198]:
[198]The plaintiff was obviously ill-equipped to handle the return. As foreseen by Dr Moffatt, the plaintiff had great difficulty coping with the return and adjusting to his new life with his natural family. The stress of the return obviously left the plaintiff confused, lost, perplexed and isolated. He was overwhelmed. The State did little to prepare any of the three parties – the plaintiff, Thora or the Davies – for the return of the plaintiff to his natural family.
Bruce Trevorrow was admitted to Windana Boys Home in July 1968, at the age of 11 years. By the end of that year it was clear that he was ill: [208]. He spent time in and out of various institutions, and at one stage was admitted to a mental hospital as an in patient: [214]. Problems with his behaviour continued, and it is clear that Thora had difficulty coping with him. The Judge summarised the position when Bruce Trevorrow was aged 18, as follows:
[260]Thus, the picture gained by the end of 1974, is of a youth, now aged 18 years, chronically insecure, psychologically damaged and for much of his childhood having required treatment with anti-depressants and tranquillizers as well as other medication. He was ill equipped to cope with adult life.
He also said:
[1132]Dr Moffatt’s evidence, primarily through her comprehensive and contemporaneous records, demonstrated that the plaintiff was, at the time, mentally ill. He was poorly equipped to be placed into his mother’s home, effectively on minimal notice. He was not equipped to handle the change from the comfortable life of the Davies. The plaintiff did not fit into his new environment. I am satisfied on the evidence that he was unwell and quite unable to cope with the rigours of his new home.
The State challenges a number of these findings.
It challenges the finding that there was no checking by officers of the APB or AAB on the circumstances at the Davies home, and on Bruce Trevorrow’s welfare, until 1964. It challenges the finding at [841] that soon after Bruce Trevorrow’s placement began, “… it was apparent that the plaintiff became disturbed”. This submission appears to be based on a submission that there is no proof that the plaintiff was disturbed within a “short time” of the placement, rather than the denial of the fact that the plaintiff was disturbed. The State challenges the finding that nothing was done to reunite Bruce Trevorrow with his mother when the 1962 Act came into force. This seems to be an argument that there was no obligation to do anything to reunite the plaintiff with his parents, which we find surprising. There is also a submission that the parents did not require the return of their child, and that in any event Thora Karpany’s housing was not suitable for the return of the child. The State challenges the finding that officers of the Department did not adequately prepare Bruce Trevorrow, Thora Karpany or Mrs Davies for Bruce Trevorrow’s return to his mother. The State also challenges the finding at [1090] that officers of the Department failed to monitor Bruce Trevorrow’s mental health during his adolescence.
We can deal with Bruce Trevorrow’s adult life much more briefly, because this is relevant only to the question of the causation of damages and assessment of damages.
We are content to adopt the Judge’s summary which appears in the following parts of his reasons:
[1135]Counsel for the State submitted that the plaintiff chose the path he followed as an adult. It was said that he had not been coerced into following this path. Attention was drawn to his criminal convictions and to injuries and illnesses that were apparently not associated with his depressive condition. A number of the plaintiff’s illnesses would appear to be unrelated to his psychiatric difficulties. However, it might be expected that his ability to cope with those illnesses and injuries was impaired by his depression and its sequelae.
…
[1139]In conclusion, the application of the commonsense test of causation leads to the result that the breaches of duty by the State have caused damage and loss to the plaintiff. He developed an anxiety state and depression as a child as a consequence of his removal from his natural family and placement into a non-indigenous family. This occurred in circumstances involving the State through the APB and departmental officers acting without lawful authority in circumstances amounting to misfeasance in public office, in circumstances giving rise to an action for false imprisonment and in circumstances involving breaches of duty of care in regard to the manner of removal, the making of the fostering arrangements and his return a decade later to his natural family. All causes of action had at their genesis the plaintiff’s removal from his natural family and the severing of the attachment between mother and child. This, from a commonsense point of view, was a material cause of his serious lifelong depression and its sequelae. His depression has led to feelings of inadequacy and worthlessness, difficulties with alcohol and difficulty coping with the everyday exigencies of life.
…
[1175]The plaintiff entered adult life with an impaired ability to cope with the problems of indigenous life. He lacked the personal resources developed by his siblings.
[1176]The plaintiff has suffered psychiatric and psychological illness. It has been accepted that this may be fairly described as a major depressive disorder. From time to time the illness has been grave. His problems and inability to cope may be contrasted with the resilience demonstrated by his siblings.
[1177]The plaintiff has suffered from ongoing depression. He will continue to do so. At times his depression has been disabling, at other times its effects have been less serious. He has needed and has received treatment from time to time. The plaintiff’s depression has manifested itself in misery, isolation and a sense of great unhappiness. In part this has been due to his perception that he does not belong to any community of people. He has no affinity to the Ngarrindjeri indigenous community. He has been unable to become a participating member of his wife’s indigenous community. As a result of his depression, he suffers feelings of a lack of any real worth or purpose.
[1178]I have reached the conclusion that the plaintiff has, thus far, generally had a miserable life. He does not belong. He feels isolated. His depression has led him to abuse alcohol. This abuse has compounded his problems.
[1179]I am satisfied however that the plaintiff’s symptoms have fluctuated and that at times, and for not insignificant periods of his life, he has found life to be of value. For example, the plaintiff considers that his part-time work, as a drug and alcohol counsellor, for Aboriginal youth suffering addiction, is worthwhile. Another example is his relationship with his grandchildren. This contact gives him some satisfaction.
[1180]In reaching the above conclusions, I have had regard to the evidence of the plaintiff and his siblings as well as the other evidence led in the trial. Elsewhere I have discussed the evidence of the plaintiff’s siblings and half-siblings. It is to be recalled that I found this evidence to be given honestly and generally of assistance.
Challenges to findings of fact
The High Court has determined the approach to be taken on an appeal like this when challenges are made to the trial Judge’s findings of fact. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ said:
[25]Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
[26]After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
[27]The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
[28]Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[29]That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
Footnotes omitted

As we understand it the position is as follows. There must be a real review of the evidence by this Court. When the trial Judge’s decision on an issue involves an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the trial Judge resulting from the witness appearing before him or her. In the present case much of the evidence is documentary, and that particular point is not relevant to that evidence. But some of the trial Judge’s findings turn on his assessment of witnesses and on his assessment of the weight of their evidence, especially the expert medical evidence. When dealing with such evidence we must allow for the advantage that the trial judge had. If we are asked to overturn a finding that is based on the Judge’s assessment of the credibility of a witness, the factors referred to in the citation above at [28]-[29] become relevant. If the question is one of inferences to be drawn from facts as found, then if this Court comes to a different conclusion as to the correct inference, it will usually substitute its decision. As to that point, we refer in particular to the citation above from Warren v Coombes (1978-1979) 142 CLR 531.
In its submissions the State criticises the Judge’s approach to the finding of facts. The State complains that certain findings are unsound.
In particular, it argues that having regard to missing evidence (we will use this expression to mean documents that have been destroyed and misplaced, witnesses who have died or have no memory or are unable to give evidence), the Judge should not have made certain findings.
The reasons for this were not made explicit. We think the submission is that there is a sufficient prospect that missing evidence would have thrown a different light on a particular issue to make it unsafe to make the finding that the Judge made on that issue.
In support of that submission, the State referred to observations made by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 in which his Honour said:
So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
These remarks are directed to the reason or rationale for limitation periods, and the manner in which a court is to exercise a discretion to extend a limitation period. But they are nevertheless of general relevance.
In considering the criticisms of the Judge’s findings, we will bear in mind the potential impact of missing evidence. We accept that this is a case in which there is a substantial body of missing evidence. We also consider that the trial Judge was better placed than this Court to assess the impact of the missing evidence. It is difficult for this Court on appeal to be confident that it can reliably identify the gaps in the documentary records and oral evidence that bear on every contested fact. Nevertheless, it is our duty to do the best we can. The acceptance that there is a substantial body of missing evidence cannot, of itself, be an answer to the claim by the plaintiff for findings of fact. It is a factor to be borne in mind. It is to be borne in mind particularly when a proposed finding reflects adversely on persons or bodies that now cannot defend their actions because of missing evidence.
The State in its submissions makes another general criticism of the Judge’s approach. It is that in some cases the Judge preferred oral evidence about events many years past to contemporary documentary records. The best example of this is the Judge’s acceptance of the evidence of Bruce Trevorrow’s siblings as to the circumstances of their childhood, and as to the care given by Joseph Trevorrow and Thora Karpany. In doing so the Judge rejected, to some extent, contemporary documents containing adverse reflections on the parenting by Joseph Trevorrow and Thora Karpany.
In our opinion this submission raises a familiar difficulty for a court. It is not uncommon for a court to be faced with a conflict between oral testimony about events long past, and contemporary written records. There is no reason why, in principle, the documentary records should be preferred to the oral evidence. Everything depends upon the facts of the case. In the present case it needs to be borne in mind that documentary records are not to be assumed to be reliable. They might or might not be reliable. If there is a reason to doubt their reliability, that may be a reason for preferring oral testimony.
The missing evidence
Before we deal with the challenges to the Judge’s findings of fact, it is desirable that we make some assessment of the extent of the missing evidence. The Judge did not make a detailed finding on this topic. Our impression is that at the trial there was not much dispute about the extent of the missing evidence. There was a dispute about its potential utility and significance.
In its written submissions on appeal the State has provided a detailed list of witnesses who have died, or who could not give evidence because of frailty, or because they could not be found. Some witnesses who gave evidence were, unsurprisingly, unsure about events that had occurred many years earlier.
Witnesses of particular significance who were unable to be called were the witnesses directly involved in the placement of Bruce Trevorrow with Mrs Davies – Mrs Angas, Mr Bartlett (the Secretary of the APB at the time and also head of the Aborigines Department), members of the APB at the time, the almoners at the ACH, Mrs Evans, Sergeant Liebing, Joseph Trevorrow and Thora Karpany.
The State also identifies documents that are missing. They are the Tailem Bend Hospital records, the files of the almoners at the ACH, the APB minutes (between July 1957 and July 1960), a file in the Aborigines Department relating to Thora Karpany, and a foster mother file that would have been kept by the CWPR Board relating to Mrs Davies. As to the Tailem Bend Hospital records, the only relevance of them appears to be that before being admitted to the ACH, Bruce Trevorrow was taken to the Tailem Bend Hospital. There is no reason to think that those records are of any significance.
In relation to the missing evidence, the Judge made a number of comments and findings. At [9] he said:
[9]The documentation of the plaintiff’s early years is extensive. However, in certain respects, records that have and may have existed have been lost.
At [890] he provided a convenient summary of the missing evidence:
[890]The State further pleaded that extensions of time would cause prejudice given that many important documents could no longer be located and witnesses who would otherwise have been called are no longer able to give evidence. The State particularised the potential witnesses to include relevant Ministers, members of the APB, medical practitioners, departmental officers and social workers from the relevant period, including Mrs Angas, and members of the plaintiff’s natural family. The State further asserted that certain files from the relevant period had been either lost or destroyed, including a number of correspondence files of the Aborigines Department from 1949-1963, the CWPRB from 1949-1966, the Department of Aboriginal Affairs from 1964-1969 and the Department of Social Welfare from 1967-1972.
At [941] he made a finding relating to the significance of the missing evidence. He said:
[941]Notwithstanding the State’s plea regarding the significant amount of crucial evidence said to be missing due either to the death or ill-health of witnesses or to the destruction of documents, the evidence tendered has painted a detailed picture of the events and circumstances giving rise to these proceedings. A large volume of documentary evidence, detailing, with a reasonable degree of specificity, the major events of the plaintiff’s life, and in particular his childhood, was received into evidence. To a large extent this is the best evidence. The contemporaneous records state relevant facts and, particularly when read together as a body of evidence, permit further inferences to be drawn.
And at [942] he made a significant point relating to the fact that a central issue in the case, the power of the APB to remove Bruce Trevorrow from his parents, hardly turned at all on any missing evidence:
[942]A further factor to be considered is the relevance of any oral or documentary evidence to the primary question of the conduct of the State, through its emanation, being conduct that was beyond power. The facts that surround the determination of this issue are barely in dispute. The basis on which the State acted is proved certainly on the balance of probabilities, if not beyond a reasonable doubt. It is difficult to see how the State could be prejudiced in respect to the causes of action that are based on this allegedly ultra vires conduct which was the subject of legal advice at the time.
Focussing on the exercise of the discretion to extend the limitation period, he said at [945]-[946]:
[945]In this latter respect, the exercise of discretion is more finely balanced, but in my view the prejudice to the State through the unavailability of a number of potential witnesses and the loss of recall of other witnesses who were presented, is materially offset by the comprehensive and voluminous records kept by officers of the Aborigines Department, Department of Aboriginal Affairs and of the Child Guidance Clinic.
[946]It is also to be recalled that welfare officers from the time were presented to give evidence, in addition to Dr Le Page, the child psychiatrist in charge of the Child Guidance Clinic at the time, and Dr Moffatt, the principal medical practitioner of that clinic who had treated the plaintiff. Although Dr Moffatt’s recall of events was restricted to speaking to her notes, those notes were extensive and allowed, when read together with notes of other departmental officers, a comprehensive picture of events as they unfolded.
Although the State in a general way complains that the Judge made findings despite missing evidence, it makes a particular challenge to the finding at [946].
The complaint is that Dr Moffatt’s notes were limited to the period between 18 January 1966 and 25 July 1970, and so do not contain any information regarding Bruce Trevorrow’s early years with the Davies family. The State also submits that Dr Moffatt’s notes and the notes of other departmental officers do not provide a comprehensive picture, but at best “a snapshot in time”. We consider that these are merely matters to be borne in mind when considering particular findings of fact. In our opinion the records that are available in respect of the period after departmental officers began checking regularly on Bruce Trevorrow are reasonably comprehensive.
The Trevorrow family circumstances
It is fair to say that the Judge’s favourable findings about the parenting by Joseph Trevorrow and Thora Karpany (at about the time that Bruce Trevorrow was taken to the ACH) appear to rest on the oral evidence of Hilda (then aged nine), George (then aged five) and Tom (then aged three), and a few documents which are significant mainly because they contain no relevant criticism. The children’s memories are undoubtedly affected by the passage of time. Tom in particular was so young that one would have to wonder how much he could remember. The children might have taken a rosy view of things in retrospect. It would not be surprising if their instinct was to defend their parents.
But we do not accept that their evidence is inherently unreliable, because of their age. We realise that their evidence might be unreliable in some respects, but we do not accept that children of that age (except perhaps Tom) are incapable of remembering their early childhood in a general way.
The State points to documents and file notes from the period November 1956 [P79E doc 150] to early 1958 [P79A doc 206] which paint a different picture. They contain strong criticism of the living conditions of the Aborigines living near Meningie. Whether and to what extent those criticisms include the Trevorrow family is not clear. There are references to Joseph Trevorrow drinking alcohol to excess, and neglecting his children for that reason. A report from Sergeant Liebing of 14 May 1958 [P79D doc 319] is significant, because the Judge appears to have relied on the fact that other documents from him contain no relevant criticisms. This report states that two of the Trevorrow boys were being cared for by Mrs Vizzard, and that the task was too much for her. In that context Sergeant Liebing states:
I am of the strong opinion that neither Joe Trevorrow nor Thora should be allowed to look after these children due to their past conduct.
On the other hand, although it is a year later, the report from Constable Goldie of 18 May 1959 [P79D doc 430], responding to a request from the APB that he encourage Joseph Trevorrow to hand his children over, states that Thora Karpany was caring for the two boys in question and adds:
I have seen the two boys in question and they appear to be quite happy, fit and well.
The fact that Constable Goldie makes no criticism of Joseph Trevorrow, to whom he has clearly spoken, seems to us of some significance.
Thora Karpany left Joseph Trevorrow sometime in 1958, and married Cyril Karpany in May 1958. Files of the APB contain records of requests by Cyril Karpany for assistance because he was unemployed and did not have food for his family.
We do not consider the written records to be conclusive. They are certainly not documents that establish “incontrovertible facts”, or that make the Judge’s findings “glaringly improbable”.
The State points also to evidence from Hilda, George and Tom about their inability to remember particular things that occurred about 1957, and to similar limitations on the recall of Rita (then 17 years old) and Alice (then about 15 years old), both siblings from an earlier relationship. Neither Rita nor Alice were living at home at this time.
There is a significant point that needs to be made. Judicial notice can be taken of the fact that in the 1950s the approach or attitude of bodies like the APB and its officers, reflecting attitudes of the time, was in favour of assimilation of part Aboriginal children into European society. We consider that judicial notice can also be taken of the fact that at that time the relevant authorities put much more weight on the benefit of living conditions and the family environment (assessed through their eyes) than on the benefit of children being raised by their natural parents, and on the benefit of Aboriginal and part Aboriginal children being raised with other Aboriginal families and children, or at least in an environment which recognised their Aboriginality. We say this because we believe that allowance has to be made for the possibility of an element of bias on the part of observers of the circumstances of the Trevorrow family. We are not here using “bias”, in a vituperative sense. We mean a predisposition towards removing part Aboriginal children from their home environment if that did not accord with then established standards in the rest of Australian society. The Judge made findings about this at [430]-[431].
In our opinion it was open to the Judge to act on the evidence given to him and to make the findings that he did. But we do not think that the Judge was rejecting all of the criticisms of the circumstances of the Trevorrow family. It may well be that on occasions Joseph Trevorrow drank too much alcohol. It is quite likely, we think, that the conditions at the Meningie Aboriginal Camp where the Trevorrows were living fell below normal urban standards of the time, nor do we deny that the camp might have warranted a number of the criticisms made of it as an environment in which to bring up children. It is possible that after Thora Karpany married Cyril Karpany money was short, and that the family was struggling.
We consider that the significant issue here is whether the evidence leads to the conclusion that Joseph Trevorrow and Thora Karpany, together or separately, were unfit to have the care of Bruce Trevorrow, or whether the circumstances in which they were living were such that it was not in his best interests that he be returned to their care.
If the APB had in law the power and authority to remove Bruce Trevorrow from the care of his parents, the only question is whether the circumstances in which it acted were such that the power was exercised validly. If it lacked the power to do what it did, then criticisms of the circumstances of the Trevorrow family might become relevant to the question of whether it acted in bad faith, or in circumstances in which harm to Bruce Trevorrow was reasonably foreseeable. Such criticisms might also become relevant when considering whether the removal of Bruce Trevorrow from his family was the cause of the psychological conditions that Bruce Trevorrow later developed, and might become relevant to the assessment of damages, if damages were recoverable.
The point we wish to emphasise is that it is not the function of this Court to sit in judgment on the circumstances of the Trevorrow family, or even on the wisdom and soundness of the policies of the APB of the 1950s, beyond noting, as we do, that there is now a generally accepted view that those policies were misguided. Our function in this respect is to determine whether, having regard to the Judge’s findings (if upheld), there was a basis for the APB to have acted as it did.
We proceed on the basis that it was open to the Judge to find that Joseph Trevorrow and Thora Karpany (when with Joseph Trevorrow and later) were caring and loving parents; that they would do their best to raise the children in their care; that the circumstances in which they were raising their children were not so unsatisfactory that a consideration of the welfare of Bruce Trevorrow called for the removal of him from their care, or for a refusal to return him to their care, if the opportunity arose for the APB to do either thing.
We add, although this to some extent anticipates what comes later in these reasons, that we do not consider that it was open to the Judge to find that Mrs Angas, or the APB, or its officers, acted malevolently or intending to cause harm. There is material in the files that could have given cause for concern about Bruce Trevorrow’s welfare in the family environment. But, in our opinion, it was open to the Judge to find that the true circumstances were as he found them to be, and that adequate enquiry would have revealed this. In the light of what we have said, the question of why Bruce Trevorrow was removed from the care of his natural parents while other children remained there becomes more acute. If Joseph Trevorrow and Thora Karpany could be expected to do their best for their other children, and if the family environment was not such as to call for the removal of any other children from that environment, what was the justification for doing what was done with Bruce Trevorrow?
For these reasons we reject this attack on the Judge’s finding, but as we have indicated, we recognise that the situation of the Trevorrow children was one that, to officers of the APB at the time, might have seemed in some respects unsatisfactory.
Bruce Trevorrow’s condition on admission to the ACH and his recovery

We agree with the Judge that, in the first few years at least, the supervision of the fostering arrangement was inadequate. We agree that during this time indications of possible injury to Bruce Trevorrow emerged.
However, the evidence does not appear to us to establish what the APB could or should have done in those early years, even when the indications of problems began to emerge. It may well be that the harm had already been done. What is not clear is what could then have been done to avert or mitigate the harm to Bruce Trevorrow. The Judge contemplates that he should have been returned to his mother. But that might have caused fresh problems. If that is the real criticism, then the finding that the fostering should not have taken place at all seems to subsume that point.
As time went on it seems to us that proper attention was given to Bruce Trevorrow’s needs. Allowing for the times, once again, all possible care seems to have been taken by the Child Guidance Clinic. Once again, it is not clear to us what more could have been done. Nor is it clear to us what injury was caused at this stage.
We have a similar difficulty in relation to his return to his natural mother. We do not accept the submission for the State that the AAB’s hands or the hands of the Department were tied, because Thora Karpany was entitled to custody, and was demanding custody. The evidence is quite clear that she was hesitant. It is equally clear that Mrs Davies precipitated something of a crisis, by saying that she was no longer willing to foster Bruce Trevorrow. It had become too much for her. We agree that the situation was unsatisfactory. We agree that anyone with common sense could see that the return of Bruce Trevorrow to his mother might well cause further harm to him, and we accept that further harm probably was caused to him.
The difficulty is to know what the AAB or the Department should have done. Should he have been placed with another foster parent, with a view to managing the return differently? Should he have been placed in an institution, for the same reason? We think that the answers to these questions are self evident – further harm was likely.
We consider that these further events can be traced back to the original decision to remove Bruce Trevorrow from the custody of his parents, and to place him in foster care. But if, as the Judge found, there was a separate duty to supervise the fostering arrangements, we cannot identify what should have been done in the exercise of reasonable care, that would have altered the outcome. If there was a duty to manage the return to his natural mother with care, we have the like difficulty.
We agree with the Judge that when the 1962 Act came into force the APB, or its successor the AAB, should have considered whether Bruce Trevorrow should be returned to his mother. Whether that duty was a duty of care, as distinct from a public duty flowing from the changed regime, is another matter. If, as the Judge found, there was a relevant duty of care, we agree that that duty was breached, because no consideration appears to have been given to the matter. But we cannot identify a basis for attributing any further or separate injury to that.
For these reasons we uphold the award of damages for breach of a duty of care. A duty was owed and breached, injury was suffered and it was injury productive of loss.
Extension of time
The time for the institution of the action expired on 20 November 1977. This was three years after Bruce Trevorrow turned 18: s 45 of the Limitation of Actions Act 1936 (SA) (“the LAA”). The proceedings were instituted on 1 June 1998, more than 20 years later.
The power to grant an extension of time is conferred by s 48 of the LAA which relevantly provides:
48—General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)     the court has jurisdiction to entertain; or
(b)     the court would, if the action were not out of time, have jurisdiction to entertain.
(3)This section does not—
(a)     apply to criminal proceedings; or
(b)     empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
…
Subsections (3a) and (3b) were added in 2004. It was not argued that they apply to this case.
The application of s 48 of the LAA was considered by the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628. The Court drew a contrast between s 48 of the LAA and the Limitation Act 1963 (UK), referred to by the High Court as the 1963 Act. As to s 48 generally, the High Court said at 635-636:
It is quite clear that the South Australian legislature preferred a simpler model to that contained in the 1963 Act. No doubt the broad purpose of the Act was substantially the same, namely, to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced. Section 48(1) confers, subject to the section, a general and unfettered power upon a court to extend the time prescribed by any Act (including the Limitation of Actions Act 1936 itself) or piece of subordinate legislation for instituting an action, or for doing any act in an action or with a view to instituting an action. The wide general power so conferred is limited by sub-s. (3). That sub-section denies to a court the power to extend the time within which an action may be instituted unless it is satisfied of the existence of the circumstances set out in either par (i) or (ii). The contrast between the matters described in par (i) and the 1963 Act is significant. The former is not limited to material facts which relate to a cause of action and satisfy the exhaustive enumeration in s 7 of the 1963 Act. The subject-matter of par (i) is facts which are material to the plaintiff's case, with no attempt to provide any definition of the categories to which such facts must conform. The reference to the plaintiff's case supplies a broader canvas than the reference in the 1963 Act to the cause of action. Unlike the 1963 Act, there is no requirement that the material facts be of a decisive character, no reference to constructive knowledge, no obligation to have used due diligence in seeking to discover at an earlier time the facts in question and no mention of seeking appropriate advice. The effect of the paragraph was described by Bray CJ in Napolitano in words which we are glad to adopt:
"A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation. All these matters, of course, are relevant to the discretion, and it seems to me that the South Australian Parliament, having made one qualifying condition, which in some cases may not be of great significance, has left all the rest to the discretion of the court."
Footnote omitted
Then, referring to the expression “facts material to the plaintiff’s case” the Court said at 636-637:
There is no warrant for writing into the Act a further qualification that, to attract the operation of s 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff's decision to sue. It is materiality to the plaintiff's case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff's mind would complicate the court's task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to “facts material to the plaintiff's case”.
It was argued for the appellant that this construction of the section opens it up to contrivance and absurdity. On the other hand, to introduce, by a process of construction, controlling criteria to limit its abuse is to compound rather than to alleviate any difficulty. The breadth of the residual discretion vested in the court provides an ample safeguard against abuse and provides that flexibility which will facilitate the achievement of the legislative purpose, namely, a just result in a wide range of circumstances.
The Judge made an order extending time under each of subpara (i) and (ii) of s 48(3)(b) of the LAA. We agree with the Judge’s decision for the following reasons which, in some respects, depart from his reasons.
We begin with s 48(3)(b)(i).
The evidence on this topic is by no means clear. The evidence given by Bruce Trevorrow did not take the matter far. He said (at T293-T294):
QAt some time, to your knowledge, did she get hold of some records from the government about [your removal and placement with the Davies].
AYes.
QAt some time did she tell you what those records showed.
AYes, I think.
QAre you able to tell his Honour when she told you what the records showed about what had happened to you as an infant.
ANot too sure.
QCan you remember what she told you the records showed about how you had been dealt with as an infant.
AYes.
QAs a result of what she told you, did you ask her to bring this action on your behalf.
AYes.
The Judge made findings relating to the manner in which Mr Trevorrow came into contact with solicitors, and to the process of disclosure of government records. He said:
[898]Joanna Richardson, the plaintiff’s solicitor, gave evidence at trial relevant to the plaintiff’s application for extensions of time. She testified that she first had discussions with the plaintiff regarding his background in the 1990s in the period when she was compiling submissions to the federal inquiry into the “stolen generation”. As a result of her discussions with the plaintiff, Ms Richardson made inquiries of the State as to what documentation, if any, it had regarding the plaintiff’s removal from his family.
[899]Ms Richardson stated that she received documents from the State in two bundles. She received the first, a smaller bundle consisting of approximately 30 pages being extracts from governmental records, under cover letter from Margaret Neumann dated 11 November 1994. On or around 14 March 1997, Ms Richardson received a second bundle of documents from the State. This bundle comprised approximately 300 pages. Ms Richardson believed it to be a complete copy of the plaintiff’s departmental files.
[900]On 3 July 1997, Ms Richardson visited the plaintiff at his home in Meningie. On that occasion, she went through every page of the 300 page departmental file with the plaintiff and advised him in relation to the information it contained. During examination-in-chief, Ms Richardson summarised the content of the advice that she gave the plaintiff on that occasion:
The advice was that there was no information on his file to indicate that he had been removed as the result of court proceedings under the provisions of the Maintenance Act and that for that reason it appeared there was a serious question about the lawfulness of the manner in which he was treated when he was removed. ... The advice was that we now had a great deal more information about his removal and his treatment after his removal, much more than we had before. … I advised him that it appeared there was now sufficient grounds to challenge … the State government about the manner in which he had been taken by issue of proceedings.
Ms Richardson gave evidence that this was the first time that she had given advice of this nature to the plaintiff.
As the Judge accepted the evidence of Ms Richardson, and no real challenge was made to it, we proceed on the basis that it is correct. The Judge then found at [918]:
[918]The 300 documents shown to the plaintiff on 3 July 1997 by Ms Richardson were complete copies of departmental files relating to the plaintiff. From a perusal of these documents, the effect of which was explained to him by Ms Richardson, the plaintiff ascertained for the first time the details of the circumstances of his removal from his family and his early placement in foster care. In particular, the plaintiff first learnt that the records did not contain any document or reference to the plaintiff’s parents’ consent to his placement in a foster situation, nor did the documents suggest that his parents’ consent was either sought or obtained by the APB or by officers of the Aborigines Department. The records did not contain any document or reference to any court order for the placement of the plaintiff with Martha, nor did the documents suggest that court orders were either sought or obtained for this placement by the APB or by officers of the Aborigines Department. The records revealed that the APB did not seek details about the plaintiff’s circumstances prior to his placement in a foster home, and only did so afterwards, when on 15 January 1958, the secretary of the APB wrote to the police officer at Meningie asking that the APB be provided with details of how the plaintiff was placed in the Children’s Hospital and where his mother was at that time.
It may be that the findings at [918] go beyond what is justified by the evidence, and are derived from the Statement of Claim rather than the evidence. However, Ms Richardson’s evidence supports the finding that Bruce Trevorrow was told on 3 July 1997 that there was no trace of a court order in what appeared to be his complete file. Ms Richardson’s evidence does not refer, at least expressly, to the question of whether there was no trace of a parental consent in the file, although one would have expected that to be discussed. The relevant evidence is set out by the Judge at [900] (above).
It may well be, as the State argues, that Mr Trevorrow already knew that his parents had not consented to his removal from their care, and to his fostering. That might have been discussed within the family. That left the question of whether there was a court order. In our opinion the fact that a search of what seemed to be the complete file disclosed no court order was a significant and very material fact. Either parental consent or a court order might have meant that what happened was done lawfully. Now he was told that there was no trace of a court order, the possible alternative to parental consent. Equally significantly, he was told this fact after Ms Richardson had perused the full file, which itself is a significant and material matter. Any such advice based on the first 30 pages from the file would necessarily have been quite tentative.
Until his solicitors had the full file they could not tell Mr Trevorrow what Ms Richardson told him in July 1997.
In our opinion that information was a most material fact. It does not matter whether or not he already knew that there had been no parental consent. We are inclined to think that even if he had been told that, confirmation that there was no parental consent in the complete file would also be a material fact. But we do not need to decide that.
For those reasons, which differ slightly from those of the Judge, we agree with the Judge’s conclusion.
The fact that Bruce Trevorrow was uncertain and unclear about what he was told and when is neither surprising nor decisive. The Judge accepted Ms Richardson’s evidence. That provided a basis, indeed a clear basis, for finding that Mr Trevorrow had learned a new material fact – that the complete file contained no court order. There is no reason why proof of the plaintiff’s ascertainment of a material fact must come from the plaintiff’s evidence.
We turn now to s 48(3)(b)(ii).
The first issue that arises is whether Bruce Trevorrow’s failure to institute the action by November 1977 resulted from “conduct of the defendant… and was reasonable in view of… that conduct and any other relevant circumstances”.
In relation to this, we agree with what Doyle CJ said in Finlay v Silcon Industries Pty Ltd [2003] SASC 236; (2003) 229 LSJS 14. At [88] he said:
[88]It is not necessary, in my opinion, for the conduct of the defendants to be the sole explanation for the failure to proceed within time. While it may well be that the plaintiffs could have brought proceedings sooner than they did, the difficulty of the plaintiffs’ circumstances is obvious, and it is not surprising that the institution of proceedings was delayed. It was reasonable to wait while the police investigated the matter, in the hope that they would turn up relevant material, or bring a prosecution that would result in helpful evidence becoming available.
In 1977 Bruce Trevorrow was 21 years old. The Judge made the following findings about his circumstances at that time:
[262]The plaintiff’s late adolescence and early adult years were tumultuous. During this time, he moved around the country, experienced extended periods of unemployment, suffered several major accidents and he drank heavily.
[263]The plaintiff came into contact with the criminal justice system. …
[264]On 15 September 1977, a solicitor acting for the plaintiff in relation to charges of break, enter and theft, sought a report from Dr Richard Burns, a neurologist at Flinders Medical Centre. Dr Burns examined the plaintiff on 22 September 1977. Dr Burns took a history of the plaintiff having suffered occasional amnesic periods in which he could not remember for an hour or two. He gave a history of being told that he had fits but he was unable to describe any previous epilepsy. On examination no focal neurological signs could be found. Dr Burns formed the view that the plaintiff was of dull intelligence which he suspected was multi-factorial. Dr Burns noted that the plaintiff was well nourished but thought that he probably had engaged in excessive alcohol intake. Dr Burns did not consider further neurological investigations to be warranted. This report has to be understood against the background that Dr Burns did not have any history other than that which came from the plaintiff. He does not appear at this time to have been informed about the detail of the plaintiff’s childhood history.
At this time Bruce Trevorrow was not in a position as we see it, to undertake investigations into his background. Without information about the circumstances of his fostering, it would have been impossible to institute the action.

As we have already noted, it was only in the 1990s that Bruce Trevorrow came into contact with Ms Richardson, and that the process to of obtaining departmental records began.
As far as we are aware, there is no suggestion that by 1977 the APB or the AAB had disclosed to Bruce Trevorrow the Crown Solicitor’s advice, or the possibility that the APB had acted without statutory authority: [929]. Without disclosure of the circumstances of his particular case, or without disclosure in a general way of doubts about the legality of the actions of the APB in such cases, the failure to institute the action by 1977 is understandable.
We do not have to decide whether the APB, or later the AAB, was under a legal or fiduciary duty to disclose the relevant documents. We are satisfied that up to November 1977 Bruce Trevorrow had little idea or understanding of how he came to be removed from parental care, and placed in foster care. The conduct of the APB and of the AAB was a significant contributing factor. They did not disclose to Thora Karpany just what had happened. In the early years there would have been no point in making disclosure to Bruce Trevorrow. We regard the AAB under the 1962 Act as the successor of the APB, despite its different powers. Until 1997 neither Thora Karpany nor Bruce Trevorrow were told how he came to be fostered.
We agree with the Judge that the enactment of the 1962 Act meant that the return of Bruce Trevorrow to his mother should have been actively considered by the AAB. In that context, it would be a reasonable expectation on the part of Bruce Trevorrow that the circumstances of his fostering would be explained to him or to his mother. They were not, nor did that process begin until the 1990s.
As at November 1977, the APB had had, and the AAB had, a considerable amount of relevant information. Its conduct in failing to disclose relevant information to Bruce Trevorrow, in our opinion, falls within the reach of the statutory provision. We see no reason why “conduct” should be interpreted as meaning only affirmative action. We appreciate that complete inaction cannot be turned into conduct. But we have explained why, in our opinion, by 1977 the relevant circumstances should have been disclosed to Bruce Trevorrow, and the conduct of the Board in failing to do that enlivens the statutory discretion.
Now we turn to the exercise of the discretion under s 48(1). It is a wide discretion. The approach to the exercise of the discretion was considered at some length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. It is not surprising, bearing in mind the width of the discretion considered there, and the width of the discretion that arises under s 48, that some differences of approach emerged when the members of the High Court summarised their approach to the discretion. Toohey and Gummow JJ said at 547:
The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”
Footnotes omitted
At 548-549 they added:
A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.
Footnote omitted
And at 550 they added:
The real question is whether the delay has made the chances of a fair trial unlikely …
McHugh J said at 553-554, after referring to the rationales for limitation periods:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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.
Footnote omitted
At 555 he added:
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Dawson J agreed with McHugh J. He added at 544:
The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. 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.
Kirby J said at 568:
… [O]nce the preconditions are made out, the positive burden on the applicant would not be one of any great severity. But if, weighing the countervailing evidence, the judge is uncertain or unconvinced that the provision of an extension would be just, it should be refused. …
Footnote omitted
The Judge began his consideration of the exercise of the statutory discretion by noting that the plaintiff must satisfy the Court that the time for instituting the action ought to be extended. He said that the State’s ongoing failure to meet its obligation to provide legal advice to Bruce Trevorrow was particularly important: [933]. In light of that, it would be contrary to the interests of justice to bar the plaintiff from bringing his action: [933]. We doubt whether that duty does exist in the circumstances of this case, for reasons that we have already given. But we agree that if it does exist, it would be a significant factor. He referred to the effect of the passage of time on the case for the State, referring to the fact that there was the missing evidence, and a number of the surviving witnesses were too frail or could not remember the relevant events. He said at [938]:
[938]Any prejudice that the State asserts must necessarily be considered in light of the fact that, on the above findings, its conduct materially contributed to the delay in bringing proceedings at the outset. The State’s failure to advise the plaintiff of relevant matters and to ensure that he obtained independent legal advice at an early date has caused considerable prejudice to the plaintiff. Had the State acted in accordance with its duty, not only could proceedings have been issued earlier but advisers to the plaintiff could have gathered and preserved relevant evidence, both oral and documentary. The argument that the plaintiff ought to be barred from bringing proceedings against the State due to the prejudice it may face, in circumstances where the conduct of the State was at the least a material, if not a major, contributor to the delay, is not an attractive one.
We doubt whether the failure by the State caused prejudice to the plaintiff, at least in relation to the presentation of his case. The Judge said that a lot of the relevant material had been available: [941]. In particular, the issue of the power of the APB to act as it did was a question of law not depending upon missing evidence. But that assumes, with respect, that neither Mrs Angas nor the Secretary of the APB could have given any evidence about the crucial events that would have assisted the State.
In the end, the Judge’s decision to exercise the discretion seems to rest substantially on the failure of the APB and later the AAB to disclose relevant matters to the plaintiff.
We would give more weight to the matter of prejudice to the State. A number of witnesses were missing. A number of documents were missing. A number of witnesses could no longer remember relevant events. Mrs Angas and Mr Bartlett (the Secretary of the APB) were important witnesses. They were no longer available. We cannot rule out at all the possibility that the State suffered in the presentation of its case on a range of issues – assessment of damages, circumstances of removal, supervision of Mrs Davies and so on. It is difficult, we think, to approach the issue of prejudice on the basis that various issues have now been resolved in favour of the plaintiff against the defendant. The point is that, but for the delay, they might not have been so resolved. We cannot dismiss this possibility.
The Judge obviously thought that there had been a fair trial, in all the circumstances. We recognise that the Judge was best placed to make this assessment. But for the reasons we have given, one must be cautious in making that assessment as well.
In our opinion consideration of the exercise of the discretion should proceed on the basis that there was a likelihood that the State was prejudiced by the passage of time.
In his reasons in Brisbane South Regional Health Authority v Taylor, McHugh J referred to some other factors. He referred to the oppressiveness to a defendant in allowing an action to be brought long after the relevant events. He referred to the public interest in people being able to arrange their affairs on the basis that claims would no longer be made. He made the point that it may be unfair that the shareholders of today should be liable for a wrong of the distant past. We acknowledge those factors, but consider that in a case against the State they are not of the same weight as in a case against a private party.
We also acknowledge that one might reasonably expect that, at least after the 1962 Act was enacted, the AAB would have taken steps to return Bruce Trevorrow to his mother, and as part of that to explain what had happened when he was removed from her custody. In that respect, the difference between us and the Judge is not great.
Pausing there, in our opinion this is a case of prejudice to the defendant. There is a real risk that the trial was not fair to the State, or to those individuals whose conduct was criticised when they are no longer able to defend themselves. On the other hand, the role played by the APB and AAB in contributing to the lengthy delay is significant.
If that was all, we would be inclined to conclude that the extension of time should not be granted. But there are some further factors. These were not relied upon by the Judge. They were raised by the Court with the parties, after the conclusion of oral submissions. The Court subsequently heard further submissions on these points.
The further matters are these.
The action is based on decisions made by a statutory authority (the APB and then the AAB). The State is liable for the wrongs of these bodies. The APB and the AAB were expected to act for the welfare of Aborigines and Aboriginal children in particular. The plaintiff was one such person. On the findings of fact, the APB, and to a lesser extent the AAB, failed to discharge their duty, a duty owed in particular circumstances to Bruce Trevorrow. He was quite unable to protect himself. As a result of his injuries, he remained unable to protect himself. His mother was at a severe disadvantage in dealing with the APB and AAB.
So when the State pleads the LAA, and relies on prejudice, we consider that this aspect of the interests of justice can be taken into account.
Moreover, the treatment in the past of Aboriginal children like Bruce Trevorrow has been a matter of national concern and controversy. It has given rise to a number of enquiries and reports, and in particular the report: “Bringing Them Home: Report of the National Inquiry into the separation of Aboriginal and Torres Strait Islander Children From Their Families” (1997) chaired by Sir Ronald Wilson. We consider that we can take judicial notice of this. In his reasons at [423] the Judge referred to the publication by the Executive Government of South Australia entitled “A Brief History of the Laws, Policies and Practices in South Australia which led to the Removal of Many Aboriginal children”. This was published in 1997. Until there was a change of policy in this respect, the prospect of an Aboriginal child challenging his or her treatment by the APB or the AAB seems remote indeed. There is an element of injustice in the Court concluding that, nevertheless, the action should not proceed.
Apart from that, in our opinion there is a definite public interest in persons like Bruce Trevorrow being able to have their claims decided by a court. The widespread concern about the policies of the past, and about the manner in which they were administered, support the circumstances being exposed to public scrutiny, and the Court having the ability to consider what was done, whether it was done validly and properly, and with what consequences. That public interest, in this context, is an interest of justice.
In our opinion this tilts the scales in favour of the discretion being exercised to grant an extension of time. The Court has power to act “as the justice of the case may require”. The prejudice to the State is a very important matter. But in the end, for the reasons given, we consider that the injustice to the State is outweighed by the interests of justice to which we have referred.
For those reasons, we uphold the Judge’s decision to grant an extension of time.
The State’s plea of laches
We see no need to deal with this plea. It can be relevant only to the claim for breach of fiduciary duty. On our approach, no such breach arises.
Other matters
As we have said several times, there is no challenge to the assessment of damages. The Notice of Appeal includes as a ground that the Judge failed to give sufficient weight to evidence of causes of the plaintiff’s injuries other than the alleged breaches of duty. There is also a ground that the Judge failed to provide adequate reasons for his assessment of damages. As the assessment of damages is not challenged, it seems to us that these issues are hypothetical, and we should not deal with them.
Conclusion
We dismiss the appeal.