Trevorrow v South Australia (No 5) - [2007] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TREVORROW v STATE OF SOUTH AUSTRALIA (No 5)
[2007] SASC 285
Judgment of The Honourable Justice Gray
1 August 2007
TORTS - MALICIOUS PROCEDURE AND FALSE IMPRISONMENT
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS
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
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING BREACH OF STATUTORY DUTY)
The plaintiff brought an action against the State of South Australia claiming misfeasance of public office, false imprisonment, breach of duty of care and breach of fiduciary and statutory duties. In 1949 and 1954 the State received legal advice that it did not have the authority to remove Aboriginal children absent certain procedures being followed - In 1957 the plaintiff aged 13 months was taken to hospital – In January 1958 the plaintiff was removed from hospital and placed into the care of a foster family by a statutory board and government department – In 1967 the plaintiff was returned to live with his natural mother – Consideration of whether the removal and fostering of the plaintiff by the board and department was without statutory warrant or legal authority and ultra vires - whether the board and department involved in the plaintiff’s removal, fostering and return were emanations and agents of the State – whether the State is liable for the actions of the departmental officers – whether there was misfeasance in public office – whether the plaintiff was falsely imprisoned – whether the State owed the plaintiff a duty of care and if so whether it was breached – whether the State owed the plaintiff fiduciary duties - consideration of remoteness and foreseeability – consideration of declarations, damages, equitable compensation and exemplary damages.
Held: The removal and placement of the plaintiff was without statutory warrant or legal authority and ultra vires – the statutory board and government department involved in the plaintiff’s removal, placement and return to his natural family were emanations and agents of the State – the State is liable for the actions of the board and departmental officers - the State owed a duty of care to the plaintiff at the time of his removal, fostering and subsequent return to his natural family – the State breached its duty of care to the plaintiff – the plaintiff was falsely imprisoned – the plaintiff was subject to misfeasance in public office – the State had a fiduciary duty to inform the plaintiff of the circumstances of his removal and to ensure he received independent legal advice - declarations made and damages including exemplary damages awarded.
The plaintiff made application for an extension of time pursuant to the Limitation of Actions Act – consideration of principles in extending time – consideration of the defence of laches – Held: Extension granted – State’s defence of laches rejected.
Aborigines Act 1934-1939 (SA) s 4, s 5, s 6, s 7, s 8, s 9, s 10, s 17, s 24, s 31, s 32, s 33, s 34, s 38, s 39, s 40, s 42 and s 51; Maintenance Act 1926-1937 (SA) s 5, s 8, s 12, s 15, s 16, s 28, s 30, s 31, s 33, s 37, s 50, s 100, s 101, s 102, s 106, s 110, s 128, s 147, s 149, s 150, s 172, s 175, s 167, s 168, s 189 and s 194; Aboriginal Affairs Act 1962 (SA) s 4, s 5, s 13, s 15 and s 16; Limitation of Actions Act 1936 (SA) s 35, s 36, s 45 and s 48; Crown Proceedings Act 1992 (SA) s 5; Aboriginals Ordinance 1918 (NT); Adoption of Children Act 1925-1934 (SA) s 12; Social Welfare Act 1970 (Vic) s 36; Immigration (Guardianship of Children) Act 1946-1973 (Cth) s 6; Public Service Act 1916 (SA); Evidence Act 1929 (SA) s 45A; Community Welfare Act 1972 (SA) s 5, s 7 and s 10; Children's Protection Act 1936 (SA) s 5; Social Welfare Act 1926-1965 (SA) s 167 and s 168; Ordinance No 12, 1844 .; State Children Act 1895 (SA) S 16 and s 33; Aborigines Act 1911 (SA) s 4, s 5, s 10, s 14, s 17 and s 31; Aborigines (Training of Children) Act 1923 (SA) s 6, s 7 and s 8; Aborigines (Consolidation) Act 1934 (SA); Maintenance Act Amendment Act 1965 (SA); Justices Act 1921 (SA) s 50(1), referred to.
Alphacell Ltd v Woodward [1972] AC 824; Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Attorney General v Prince & Gardner [1998] 1 NZLR 262; B v Attorney-General of New Zealand [2004] 3 NZLR 145; Bank of New South Wales v The Commonwealth of Australia (1948) 76 CLR 1; Barker and Others v Duke Group Ltd (in Liq) (2005) 91 SASR 167; Barrett v Enfield London Borough Council [2001] 2 AC 550; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Breen v Williams (1996) 186 CLR 71; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Brockhill [2001] 2 AC 19; Bropho v Western Australia (1990) 171 CLR 1; Calvaresi & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147; Carnegie v State of Victoria [1989] VSC (unreported, Full Court, 14 September 1989); Chappel v Hart (1998) 195 CLR 232; Cia de Seguros Imperio v Heath (REBX) Ltd and Others [2001] 1 WLR 112; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Clay v Clay (2001) 202 CLR 410; Cotogno v Lamb (No 3) (1986) 5 NSWLR 559; Coulthard v Disco Mix Club Ltd and Anor [2001] 1 WLR 707; Cowell v Corrective Services Commission of NSW (1998) 13 NSWLR 714; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; Daniels Corp v ACCC (2002) 213 CLR 543; Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; Duke Group Ltd (in Liq) v Alamain Investments Ltd & Ors (2003) 232 LSJS 58; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at [470]; Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14; Fitzgerald v Masters (1956) 95 CLR 420; Fitzgerald v Penn (1954) 91 CLR 268; Forbes v Davies and Commonwealth of Australia (1994) Australian Torts Reports 81-279; Fountain v Alexander (1982) 150 CLR 615; Gerula v Flores (1995) 126 DLR (4th) 506; Graham Barclay Oysters P/L v Ryan (2002) 211 CLR 540; Gray v Motor Accident Commission (1998) 196 CLR 1; Groves v The Commonwealth (1982) 150 CLR 113; Hewer v Bryant [1970] 1 QB 357; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 102; Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334; Jaensch v Coffey (1984) 155 CLR 549; JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 WLR 993; Johnson v Perez (1988) 166 CLR 351; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; The King v Wallis and Another; Ex parte Employers Association of Wool Selling Brokers and Others (1949) 78 CLR 529; Knox v Gye (1872) LR 5 HL 656; Kruger v Commonwealth (1997) 190 CLR 1; Lamb v Cotogno (1987) 164 CLR 1; Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Lovett v Le Gall (1975) 10 SASR 479; Luscombe v State of South Australia (1984) 118 LSJS 221; McPhee v Blyth (1992) 166 LSJS 236; Maguire v Makaronis (1997) 188 CLR 449; Marshall v Watson (1972) 124 CLR 640; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Meering v Grahame-White Aviation Company Ltd (1919) 122 LT 44; Metropolitan Bank v Heiron (1880) 5 Ex D 319; Mills v Meeking (1990) 169 CLR 214; Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 117; Murray v Ministry of Defence [1988] 2 All ER 521; Myer Stores Ltd and Ors v Soo [1991] 2 VR 597 at 599; Napolitano v Coyle (1977) 15 SASR 559; Neale v Colquhoun [1944] SASR 119; Neindorf v Junkovic (2005) 222 ALR 631; New South Wales v Moss (2000) 54 NSWLR 536; Newcastle City Council v GIO General Ltd (1997) 72 ALJR 97; Northern Land Council v The Commonwealth of Australia (1987) 75 ALR 210; O'Brien v McKean (1968) 118 CLR 540; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; Pollack v Volpato [1973] 1 NSWLR 653; Pyrenees Shire Council v Day (1998) 192 CLR 330; R v Bonython (1984) 38 SASR 45; R v Calbria (1982) 31 SASR 423; R v D [1984] 1 AC 778; R v Governor of Brockhill Prison; Ex parte Evans [No 2] [2001] 2 AC 19; R v Lavender (2005) 222 CLR 67; R v Nicholson (1984) 12 A Crim R 231; R v Perry (No 4) (1981) 28 SASR 119; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Re Loftus (deceased); Green & Ors v Gaul & Ors [2006] 4 All ER 1110; Rivett Arboricultural & Waste Equipment Hire Pty Ltd v Evans (No 2) [2007] SASC 197; Ross v Chambers (Supreme Court of Northern Territory, Kriewaldt J, 5 April 1956, unreported); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72; Ruddock v Taylor (2005) 222 CLR 612; S v Gloucestershire County Council [2001] Fam 313; Sanders v Snell (1998) 196 CLR 329; SGH Ltd v FCT (2002) 210 CLR 51; Shorey v PT Limited (2003) 77 ALJR 1104 AT [44]-[47]; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; State of New South Wales v Fahy [2007] HCA 20; Sullivan v Moody (2001) 207 CLR 562; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Tame v New South Wales (2002) 211 CLR 317; The Commonwealth v Yarmirr (2001) 208 CLR 1; Tito v Waddell (No 2) [1977] Ch 106, at 139; Trevorrow v State of South Australia (No 2) (2005) 94 SASR 1; Trevorrow v State of South Australia (No 3) (2005) 94 SASR 44; Trevorrow v State of South Australia (No 4) (2005) 94 SASR 64; Trobridge v Hardy (1955) 94 CLR 147; Ulowski v Miller [1968] SASR 277; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Van de Heuvel v Tucker (2003) 85 SASR 512; Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1; W v Essex County Council [2001] 2 AC 592; Waters v Commissioner of Police for the Metropolis [2000] 1 WLR 1607; Wedd v Wedd [1948] SASR 104; Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; Wik Peoples v Queensland (1996) 187 CLR 1 at 90; Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 512; Wilson v Peisley (1975) 7 ALR 571; Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; Youngman v Lawson [1981] 1 NSWLR 439; Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106, considered.

TREVORROW v STATE OF SOUTH AUSTRALIA (No 5)
[2007] SASC 285
Civil
GRAY J
INTRODUCTION
LEGISLATIVE CONTEXT
The Statutory Scheme
Crown Solicitors’ Advices
Relationship between the APB and the CWPRB
A Change of Approach
Findings
FACTUAL BACKGROUND
Early Life
Christmas 1957
Placement
Thora seeks the return of the plaintiff
Life with the Davies
Plaintiff returns to live with natural family
Institutional Life
Findings
Adult Life
Early adult years
Marriage
Employment History
Trauma and physical injury
The Pentridge Incident
Medical history
Criminal Antecedents
Findings
The Plaintiff’s Parents
Thora
Joseph
Findings
LEGAL BACKGROUND
Legislation
Proclamation
Ordinance No 12
State Children Act 1895
Aborigines Act 1911
The Royal Commission 1912
Aborigines (Half-Caste Children) Bill 1921
Aborigines (Training of Children) Act 1923
Maintenance Act 1926-1937
Children’s Protection Act 1936
Aborigines (Consolidation) Act 1934
Aborigines Act 1934-1939
Aboriginal Affairs Act 1962
Social Welfare Act 1926-1965
Community Welfare Act 1972 (SA)
Applicable Legislative Scheme
Policy and Practice of Removal
Guardianship
A Varying Spectrum of Powers
The Meaning of Guardianship
Statutory Interpretation
Common Law Rights
Purposive Approach
Scope of sections 7 and 10 affected by sections 38-40
Context of sections 7 and 10 of the Aborigines Act 1934-1939
Progenitor Provisions
Broader statutory context

Powers and obligations arising from the APB’s role as “legal guardian”
Conclusion
LIABILITY OF THE STATE – EMANATIONS OF THE STATE
Legal Principles
The APB
The Statutory Framework relevant to the APB
Activities Undertaken
The Legal Relationship between the APB and the Executive Government
Did the State carry on a relevant function through the APB?
Management
The Objects of the APB
Structure
Departmental Officers of the Aborigines Department

Conclusion re APB
The CWPRB
The Statutory Framework
Activities Undertaken
The Legal Relationship between the CWPRB and the Executive Government
Did the State carry a relevant function through the CWPRB?
Management
The Objects of the CWPRB
Structure
Departmental Officers of the CWPRB

Conclusion re CWPRB
Successors of the APB and the CWPRB
Departmental Officers – Employees of the State
THE WITNESSES
An Overview
The Plaintiff’s Witnesses
The Plaintiff
Family Members
Plaintiff’s Medical Experts
Dr Alan Walker
Dr Keith Le Page
Dr Jon Jureidini
Professor Alexander McFarlane
Professor Richard Burns
Dr Andrew Czechowicz
Miranda Van Hooff

The State’s witnesses
Welfare Officers
Lay Witnesses
Carol Malinda
Roger Taylor
Leslie and Evelyn Knowling

Medical Experts
Dr Jeannie Moffatt
Dr Richard Rischbieth
Dr Andrew Tidemann
Professor Robert Goldney
Professor Christopher Tennant

Findings
ATTACHMENT AND SEPARATION
APPLICATION FOR EXTENSIONS OF TIME
Pleadings
Limitation of Actions Act
Application of section 48 to the present proceedings
Conduct (section 48(3)(b)(ii))
New material facts (section 48(3)(b)(i))

Exercise of discretion
Laches
THE PLAINTIFF’S CLAIMS
Misfeasance in Public Office
Wrongful Imprisonment
Fiduciary Duty
Negligence
Duty of Care
The Application of the Salient Features test
The Legislative Scheme
The consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the statute
Foreseeability
Vulnerability
Control
Proximity
Powers and Abilities
Is the test satisfied?

Breach of Duty of Care
Causation
Resolution of Opinions Regarding Causation

REMEDIES
Injuries and Loss
Cultural Identity
Exemplary Damages
CONCLUSION
INTRODUCTION[1]
[1] The purpose of this introduction is to provide an insight into the reasons that follow. Insofar as any of the introductory statements are contentious they are addressed later in the reasons in detail.

On Christmas Day 1957, an Aboriginal infant in need of medical treatment was sent to hospital. The child recovered a short time later. He was then taken from hospital and placed in long term foster care. His parents were unaware of the removal or fostering. Almost 50 years later, this Court is to determine the legal consequences that flow from the removal, his placement with another family, and the circumstances of his return to his own family a decade later.
The general circumstances giving rise to this litigation are that the plaintiff, Bruce Allan Trevorrow, an Aboriginal child, then aged 13 months, was sent by his father Joseph Trevorrow with neighbours from Meningie to the Adelaide Children’s Hospital on Christmas Day 1957. Joseph had informed the neighbours that the plaintiff was suffering from stomach trouble. The neighbours drove the plaintiff to the Children’s Hospital where he was admitted. The hospital notes recorded that the plaintiff had no parents. They also recorded that the plaintiff was neglected and malnourished. According to the hospital records, the plaintiff responded to treatment and by New Year’s Eve it was noted that he was “going well”.
At or about that time it appears that Martha Davies responded to a newspaper advertisement seeking foster care for Aboriginal babies. On 6 January 1958, she attended with her husband at the Children’s Hospital and was shown the plaintiff. They decided to take the plaintiff home. This process was authorised and arranged by an officer of the Aborigines Department on behalf of the Aborigines Protection Board (APB). At that time Martha was yet to be approved or licensed as a foster parent.
The plaintiff and his father never met again. Joseph died some eight years later. The plaintiff was reunited with his mother, Thora Karpany, and siblings almost a decade after he was first placed with Martha. By this time, Thora had remarried and had further children from this relationship. In 1967, the plaintiff, as a 10-year-old, returned to live with Thora. That arrangement continued for less than 14 months. The plaintiff spent the balance of his adolescence in and out of institutions. The plaintiff claimed that the circumstances of his removal from his mother and natural family and his ongoing separation for almost a decade has led to injury, loss and damage. It was the plaintiff’s case that he has led a troubled life marked by a loss of family and community identity, a loss of cultural identity, depression, alcoholism, poor health, poor domestic relations and an erratic employment history.
Counsel for the plaintiff contended that two Crown Solicitors, one in 1949 and the other in 1954, advised that the process later followed in the removal of the plaintiff was not authorised by law and was beyond power. The plaintiff alleges that he was the subject of misfeasance in public office and was falsely imprisoned. It was contended that the defendant, the State of South Australia (the State), through its emanation, the Aborigines Protection Board (APB), was his statutory legal guardian at relevant times. It was also said that the plaintiff’s removal from his parents’ care, his placement in foster care, and his return to his natural family involved breaches of duty. Other causes of action have been advanced and will be discussed later in these reasons.
The State denied that the plaintiff was unlawfully removed from his parents, that the APB was an emanation of the State and thereby his legal guardian, and that there was any duty owed or, if owed, any breach. The State denied any liability arising from any of the pleaded causes of action.
The plaintiff sought orders pursuant to the Limitation of Actions Act1936 (SA) extending time for the bringing of a number of the causes of action. The State opposed such orders. With respect to the claims that did not attract a statutory time limit, pleas of laches were raised. The State submitted that grave prejudice followed from the delay in the institution of these proceedings. The State claimed that a number of important witnesses had died, or were so aged as to be incompetent.
The management of documents in the trial has posed some difficulty. The parties could not agree on a common book of documents. In the event the parties tendered separate and compendious books of documents, each set organised to suit the presentation of that party’s case. The Court’s attempt to have the one consolidated set of documents agreed, even late in the trial, was unsuccessful. Regrettably, a degree of duplication inevitably resulted. The parties are not to be criticised – extraordinary efforts were made to assist the Court with aged, difficult to handle and extensive documentation. A number of documents that appeared to be identical required close examination as from time to time subtle material differences appear.
The documentation of the plaintiff’s early years is extensive. However, in certain respects, records that have and may have existed have been lost.
A number of witnesses gave evidence, including witnesses from the time who were directly involved with the plaintiff as a child. In assessing that evidence, care has to be taken of the toll that the passing of time can have on memory.

There is risk, where a court is being asked to determine the legal consequences of events that took place four to five decades ago, that contemporary attitudes of witnesses, experts, legal advisers and of the court will have an effect on the presentation and determination of the issues.
Particular attention needs to be paid to changing community standards. As Brennan CJ observed in Kruger v Commonwealth: [2]
Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention. Therefore, it would be erroneous in point of law to hold that a step taken in purported exercise of a discretionary power was taken unreasonably and therefore without authority if the unreasonableness appears only from a change in community standards that has occurred since the step was taken.
O’Loughlin J drew upon these remarks in Cubillo v Commonwealth (No 2), where he observed: [3]
It is a truism to say that we live in changing times. What was accepted yesterday is rejected today. What would not be tolerated yesterday is accepted today. There are moral and social issues that have in the past divided, and continue today to divide, sections of the community.
Then later: [4]
[N]ot only is it relevant to have regard to the state of knowledge, to technology and to standards of conduct and behaviour at the relevant time, but allowance must also be made for changes in those matters to be implemented and generally accepted. Again, in determining what is reasonable in that regard, matters such as the existence of resources and statutory power to effect change must be taken into account. In some cases, of course, such changing values may come to be reflected in policy but this can only be done to the extent that it is not inconsistent with the existing statutory regime.
[2]    Kruger v Commonwealth (1997) 190 CLR 1 at 36-37 (Brennan CJ); see also at 52 (Dawson J).
[3]    Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [85].
[4]    Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [104].
A court must also consider applicable legislation in the context of its historical setting. In Kruger one of the issues the Court had to decide was the legality of conduct governed by provisions of the Aboriginals Ordinance 1918 (NT). Toohey J observed:[5]
When the Ordinance is analysed and placed in its historical setting, is it reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment of persons answering the description of “Aboriginal or half-caste”? No such basis would survive analysis today. But, for the reasons advanced earlier in this judgment, the Ordinance must be assessed by reference to what was reasonably capable of being seen by the legislature at the time as a rational and relevant means of protecting Aboriginal people against the inroads of European settlement. That is a matter of evidence. ...
[5] Kruger v Commonwealth (1997) 190 CLR 1 at 97 (Toohey J).
The present proceedings, as earlier noted, relate to events that commenced some 50 years ago. However, extensive contemporaneous documentation relevant to the events was tendered in evidence. This documentation, largely departmental, most prepared with apparent care and in accordance with established practices and procedures, allows a relatively clear understanding of the events, attitudes and policies of the time. From time to time witnesses were able to speak to documents and the procedures and practices that led to their creation. In many instances, this has assisted the process of the court being satisfied that documents were reliable records of events that occurred and of attitudes and policies of the time.
Where appropriate, efforts were made by counsel for the parties to ensure that expert witnesses were directed to evaluate the circumstances upon which they gave their opinions having regard to the historical context and the state of knowledge and learning at the relevant time.
The Court received into evidence copies of leading academic texts of the time in the discipline of what would now be termed child psychiatry. These texts addressed problems arising from the separation of child from parent. The Court heard from Dr Keith Le Page, a psychiatrist at the Child Guidance Clinic at times during the 1960s. Dr Le Page was able to give evidence as to the state of medical knowledge at relevant times including awareness of attachment theory and of the consequences of the rupture of mother-child attachment.
Books, articles, conference minutes and other documents explaining the underlying policy of applicable legislation were received into evidence, providing background to assist in an understanding of the legislation consistent with the views of the mid-1950s and 1960s.
It is convenient in these reasons to first address the relationship between the State, its statutory bodies corporate, and relevant government departments. To understand the plaintiff’s claims and the relationship between the parties, it is necessary to undertake an overview of the legislation that governed those relationships. This review will canvass the legislative history both leading to and following the critical events.
Next a broad chronology of events will be outlined. This chronology was subject to little challenge and draws on contemporaneous documents. A more detailed discussion of particular events will be undertaken later in these reasons.
A detailed review of the legislative framework against which the relevant events occurred and the general government policies then in place will be addressed before the making of primary findings. Those findings are best addressed once the legislative regime has been laid out. It will then be convenient to consider each of the causes of action.
It may be helpful to note some points pertaining to the terminology used throughout these reasons. The first relates to the use of the words “taking”, “removal”, “placement” and “fostering”. The departmental documents describe the plaintiff as being “taken” from hospital. When I refer to the plaintiff as being “removed” from his family, I am describing the process whereby the plaintiff was taken from the Children’s Hospital and without his parents’ knowledge or consent being given to Martha. I sometimes also describe the plaintiff as being “placed” with the Davies family. All of these and like expressions describe the plaintiff being removed from hospital and given to Martha, instead of being returned to his natural parents. There is indirect evidence that the plaintiff was formally “fostered”. Martha was eventually licensed as a foster parent. The arrangement was that Martha would have the long-term control and custody of the plaintiff to the exclusion of his natural family.
Some further points regarding terminology include the use of Christian names in the course of these reasons. It has been convenient to refer to the members of the Trevorrow and Davies families by their Christian names in order to avoid confusion that could arise by having to refer to several people sharing a common surname. However, at times throughout these reasons the context calls for use of surnames as well.
When referring to the Aborigines Act 1934-1939 (SA) and Maintenance Act 1926-1937 (SA) I have included the years of the Acts, in order to avoid any confusion that might arise due to the fact that several Acts were enacted over the years with similar titles. With the exception of the Aborigines Department, all State departments and boards have been referred to by initialisms – APB for the Aborigines Protection Board, CWPRB for the Children’s Welfare and Public Relief Board, and CWD for the Children’s Welfare Department.
By way of introduction it is important to have an awareness of the government entities involved in the events the subject of the action and their interrelationship. An issue at trial was whether certain entities were emanations of the State. I have concluded later in these reasons that all relevant entities in particular the APB and the CWPRB, were emanations of the State and that accordingly the State was and remains responsible for their actions and conduct. I consider the terms “emanation”, “instrument” and “agent” to be largely interchangeable, and their use in these reasons varies only according to the context in which they are used.
The APB, a body corporate under the Aborigines Act 1934-1939, had an overseeing or executive responsibility in dealing with a number of indigenous issues. The secretary of the APB was also the permanent head of the Aborigines Department. He was a Crown employee appointed pursuant to and subject to the Public Service Act 1936-1938 (SA). The conduct of the APB’s affairs was primarily carried out by officers of the Aborigines Department at the direction of the permanent head of the Department, and through him, at the direction of the APB. In the early 1960s the Aborigines Act 1934-1939 was repealed, the APB ceased to exist and was replaced by the Aboriginal Affairs Board. The Aborigines Department continued but was renamed the Department of Aboriginal Affairs.
The CWPRB, a body corporate under the Maintenance Act 1926-1937 discharged public welfare duties generally within the State. This board primarily discharged its responsibilities through officers of the CWD.[6] The CWPRB and officers of the CWD had duties in regard to the fostering of children and responsibility from time to time for indigenous matters. As discussed in detail later, there were areas of common statutory responsibility between the APB and CWPRB.
[6] At times through the documentation it is referred to as the Children’s Welfare and Public Relief Department, however as earlier observed throughout this judgment the department is described by the letters CWD.
Another government entity, the Child Guidance Clinic, appears to have operated as part of the Health Department of South Australia and had responsibilities with regard to children generally, including indigenous children. The documents from the time establish that referrals were made to the Child Guidance Clinic from a number of government agencies including the CWD, the Aborigines Department, the Department of Aboriginal Affairs and the Education Department.
A medical officer at the Child Guidance Clinic, Jeannie Moffatt, undertook responsibilities toward the plaintiff. It appears that the initial referral to the Child Guidance Clinic was made in 1966 by Barbara Reiff, an officer of the Department of Aboriginal Affairs. Dr Moffatt continued to have contact with the plaintiff until early 1970.
Relevant to the present proceeding is a consideration of whether the plaintiff’s removal from the Children’s Hospital and placement with Martha were undertaken at the immediate direction of the Aborigines Department with the authority of the APB, or in the alternative, in circumstances ratified and adopted by the APB, or otherwise.
The licensing of Martha as a foster mother was apparently undertaken by the CWD, however, maintenance payments to Martha were authorised and made by the APB. Officers of the Aborigines Department dealt with inquires by the plaintiff’s natural mother with respect to the plaintiff. Later, when the plaintiff presented behavioural problems, he was referred to the Child Guidance Clinic by the Department of Aboriginal Affairs who appeared to have accepted the responsibility for the placement with the Davies. The return of the plaintiff to his mother in 1967 appears to have been undertaken at the direction and under the control of the Department of Aboriginal Affairs in consultation with the Child Guidance Clinic. In 1968, following a court order, the plaintiff was placed in the care of the Minister of Social Welfare and accordingly became a State child.
LEGISLATIVE CONTEXT
Before coming to discuss the events giving rise to this action, as earlier observed, it is necessary to put those events into the context of the statutory scheme addressing Aboriginal children at the time. Aspects of this scheme will be discussed in detail later in these reasons.
The Statutory Scheme
The statutory scheme in place at the time of the plaintiff’s removal from his natural family entrusted two bodies with roles to play in ensuring that Aboriginal children in need were properly cared for – the APB and the CWPRB.
Pursuant to section 7 of Aborigines Act 1934-1939, the APB had the following duties:
(a)to apportion, distribute, and apply, as seems most fit, the moneys at the disposal of the board:
(b)in its discretion, to apply part of the moneys at its disposal in the purchase of stock and implements to be loaned to aborigines to whom land has been allotted under section 18, and may supply the same accordingly either without payment or on such terms as are approved by the board, and no person shall, except with the approval of the board, acquire any title to any goods or chattels so loaned as aforesaid:
(c)to distribute blankets, clothing, provisions, and other relief or assistance to the aborigines:
(d)to provide, as far as practicable, for the supply of food, medical attendance, medicines, and shelter for the sick, aged, and infirm aborigines:
(e)to provide, when possible, for the custody, maintenance and education of the children of aborigines:
(f)to manage and regulate the use of all reserves for aborigines:
(g)to exercise a general supervision and care over all matters affecting the welfare of the aborigines, and to protect them against injustice, imposition, and fraud.
The APB was the legal guardian of Aboriginal children. Section 10 provided:
(1)The board shall be the legal guardian of every aboriginal child, notwithstanding that any such child has a parent or other relative living, until such child attains the age of twenty-one years, except whilst such child is a State child within the meaning of the Maintenance Act, 1926.
and further provided:
(2)Every protector shall, within his district, be the local guardian of every such child within his district.
(3) Such local guardian shall have and exercise the powers and duties prescribed.
Section 17(1) of the Aborigines Act 1934-1939 provided that the APB could place an Aboriginal person within a reserve or Aboriginal institution:
The board may cause any aborigine to be kept within the boundaries of any reserve or aboriginal institution, or to be removed to and kept within the boundaries of any reserve or aboriginal institution, or to be removed from one reserve or aboriginal institution to another reserve or aboriginal institution, and to be kept therein.
It should be immediately observed that this subsection had no part to play in the removal or placement of the plaintiff.
Under the legislative scheme in place, the CWPRB, pursuant to the Maintenance Act 1926-1937, bore the statutory responsibility for caring for children in need, whether Aboriginal or otherwise.
The legislative scheme envisaged that the two boards would work together. Importantly, section 38 of the Aborigines Act 1934-1939 provided that the APB and the CWPRB were authorised to work in concert to effect the removal of an Aboriginal child according to law:
The [APB] may, with the approval of the [CWPRB] constituted under the Maintenance Act, 1926, commit any aboriginal child to any institution within the meaning of the Maintenance Act, 1926, under the control of the [CWPRB], to be there detained or otherwise dealt with under the said Act until such child attains the age of eighteen years.
As will become evident, the section 38 process was a cause of ongoing tension between the boards.
Evidence before the Court demonstrated that the State, its emanations the APB and the CWPRB, relevant Ministers and officers of the Aborigines Department and the CWD, were all of the understanding that the State was powerless to remove Aboriginal children from their parents absent compliance with relevant provisions – sections 17 and 38 of the Aborigines Act 1934-1939, and section 102 of the Maintenance Act 1926-1937 or with the consent of the child’s parents.
Section 102 of the Maintenance Act 1926-1937 provided that where a court was satisfied that the child was destitute or neglected, it could:
(a)order such child to be forthwith sent to an institution, to be there detained or otherwise dealt with under this Act until such child attains the age of eighteen years; or
(b)by an order in writing place such child in the custody and under the control of the [CWPRB] until such child attains the age of eighteen years.
Crown Solicitors’ Advices
On 25 July 1949, the Crown Solicitor, A. J. Hannan, provided a formal written minute of advice to the Attorney-General on the extent of the power of the APB to remove children under the Aborigines Act 1934-1939. Mr Hannan advised that the APB was the legal guardian of Aboriginal children pursuant to section 10 of the Aborigines Act 1934-1939, and had the power under section 38 of the Aborigines Act 1934-1939 to commit Aboriginal children to institutions under the control of the CWPRB. Mr Hannan advised that the APB, pursuant to section 17, had the power “in certain circumstances” to cause any Aboriginal person including children to be kept within a reserve or Aboriginal institution, and in the case of a child, without the consent of the child’s parents. In relation to the powers of the APB in section 7 of the Aborigines Act 1934-1939, Mr Hannan advised:
These powers, however, are of a general nature and of themselves are not, in my opinion, specific enough to authorise the removal of aboriginal children from their parents.
Notations appear on the minute that evidence the following events. On 25 July 1949, the Attorney-General forwarded Mr Hannan’s advice to the Minister of Works, who was also the chairman of the APB. On 28 July 1949, Mr Hannan’s advice was forwarded to the secretary of the APB. In turn, on 3 August 1949, the secretary of the APB forwarded the advice to the members of the APB, with the following note:
To the [APB]
The Crown Solicitor has advised that the [APB] has no authority to remove aboriginal children from their parents except by concerted action with the [CWPRB], as provided in section 38 of the Aborigines Act, 1934-39.
Accordingly, it is clear that by August 1949, the Attorney-General, the Minister of Works, the chairman and secretary of the APB and the APB itself were all aware of the Crown Solicitor’s advice, that, beyond the procedures prescribed in section 38 of the Aborigines Act 1934-1939, the APB did not have the power to remove Aboriginal children from their parents. As earlier observed, the secretary of the APB was also the head of the Aborigines Department. As a result, the Department was aware of the advice of the Crown Solicitor.
Evidence before the Court revealed that the CWPRB was unwilling at relevant times to accept and perform its statutory role in providing for neglected or destitute Aboriginal children.
In November 1953, the chairman of the CWPRB advised the Honourable Chief Secretary that a court had placed an Aboriginal child under the custody and control of the CWPRB and that this was a problem for the CWPRB. The perception of the chairman of the CWPRB was that various authorities had tried to avoid problem Aboriginal children by placing them under the guardianship of the CWPRB. The CWPRB had resisted because it considered it would be undesirable to place “difficult, native children” into its institutions because the institutions were not considered suitable. The chairman of the CWPRB observed that the mixing of white and “native” children was not always successful and that staff at the institutions might be upset through having to handle “native” children. The CWPRB considered the APB should be responsible for such children. The chairman requested the Chief Secretary to refer the matter to the APB for appropriate action.[7]
[7] Memorandum of the Chairman, CWPRB to the Honourable Chief Secretary dated 19-Nov-53 regarding JB. Earlier the Secretary of the CWPRB had written to the Clerk of Court, Berri about this child, questioning the validity of the Mandate and observed “There are many difficulties in the way of placing a coloured child in an institution with white children”.

In or about May 1954 the secretary of the APB noted that it was well known that the CWD would not accept Aboriginal children except in extreme cases.[8] As a result when an Aboriginal child was reported as neglected, uncontrolled or orphaned the secretary of the APB stated that he had been “forced to beg religious organisations to accept these children into their Homes”.[9]
[8] The secretary noted that according to senior officers of the CWD when Aboriginal children were admitted to its institutions they became disorderly, difficult to control and caused serious trouble with other wards of the State.
[9] The secretary also noted the children often could not be accepted into these Homes because they were overcrowded and short staffed. He contrasted these Homes with the Institutions controlled by the CWD noting the contrast was “so great that comparison could not be made. It would appear that with neglected and ill behaved white children expense does not count and most of the Institutions have a very large staff providing for complete supervision of the children both day and night.”
In June 1954, the CWPRB sought advice from the officer in charge of its Prosecution Branch regarding its duty to Aboriginal children living under unsatisfactory circumstances. The board was advised that it was justified in taking the attitude that the welfare of Aboriginal children was a matter for the APB at least in the first instance and not for the CWPRB.
This tension between the two boards prompted the Attorney-General to again seek the advice of the Crown Solicitor. In a minute to the Attorney-General dated 13 August 1954 and entitled, “Aboriginal Children – Children’s Welfare and Public Relief Board and Aborigines Protection Board”, the then Crown Solicitor, R. R. St. C. Chamberlain confirmed the 1949 advice provided by Mr Hannan. Mr Chamberlain gave the following advice:
Sections 5 and 7 of the Aborigines Act, 1934-39, provide that the [APB] is charged with the duty of controlling and promoting the welfare of aborigines, particularly in the matters mentioned in section 7 of that Act, and section 10 provides that the [APB] shall be the legal guardian of every aboriginal child until he attains 21 years of age, except whilst such child is a State child within the meaning of the Maintenance Act.
Primarily, therefore, the [APB] should provide for the control, welfare, maintenance and education of aboriginal children.
Destitute, neglected or uncontrolled children
An aboriginal child should not become destitute or neglected, because the [APB] is its legal guardian and charged with the duty of providing for its welfare, and if the Board’s attention is drawn to a particular case of apparent destitution or neglect, no doubt the Board would take steps to relieve the situation.
If, however, the [APB] cannot, or does not take action, or if, despite that Board’s efforts, an aboriginal child became destitute, neglected or uncontrolled, I see no legal reason why action should not be taken under section 102 of the Maintenance Act, 1926-1952. The Aborigines Act does not contain similar powers.
Illegitimate children under 7 years of age
The [APB] has a general duty under its Act “to provide, when possible, for the custody, maintenance and education of the children of aborigines”; see section 7(e). It has no express power to enter the homes of aboriginal children, such as the [CWPRB] has, pursuant to section 16(1) IV[10] and section 189[11] of the Maintenance Act, 1926-1952. The [APB’s] powers with regard to the custody and control of aboriginal children are limited to removing children to an aboriginal reserve or institution under section 17(1) and to the removal of certain children, with the consent of the [CWPRB] to an institution within the meaning of the Maintenance Act pursuant to section 38 of the Aborigines Act.
There is nothing in the Aborigines Act to prevent the [CWPRB] exercising its powers under section 16(1) IV and section 189 of the Maintenance Act with regard to aboriginal illegitimate children under seven years of age except where such children may have been removed to an aboriginal reserve or institution.
Children under seven years of age, living with other than near relatives. Section 188, Maintenance Act.
In these cases the [CWPRB] may exercise its powers under section 188 of the Maintenance Act subject only to the exercise by the [APB] of its powers under Sections 17(1) and 38 of the Aborigines Act.
[emphasis added]
[10] Section 16(1) IV of the Maintenance Act 1926-1937 provided that the CWPRB had the following, inter alia, general power and function:
The supervision of all illegitimate children under the age of seven years, and the homes of such children.
[11] Section 189 of the Maintenance Act 1926-1937 provides:
(1)The home or place of residence, and every part thereof, of any illegitimate child (not being an illegitimate child in respect of whom an order of adoption has been made pursuant to the Adoption of Children Act, 1925) under the age of seven years shall at all times be open to entry and inspection by any member or officer of the board: Provided that where the board is satisfied that an illegitimate child is being properly cared for in its home or residence, such home or residence shall not be open to entry and inspection under this section.
(2)Any person who refuses to allow such entry or inspection to be made, or hinders or resists any such member or officer in the making of, or attempting to make, such entry or inspection, or who refuses or neglects to produce such child to any such member or officer for inspection by him, upon such production being demanded by such member or officer, shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding twenty pounds.
(3) This section shall not apply to any school or hospital.
On 24 August 1954, the CWD forwarded to the APB a copy of the opinion of the Crown Solicitor, Mr Chamberlain, dated 13 August 1954, and reiterated that the CWPRB “is not anxious, for several reasons, to have aboriginal children in our Departmental Institutions housing neglected and destitute children”[12].
[12] Letter of the Chairman CWPRB, Mr McNally to the Secretary, APB dated 24 Aug 54 indicating that as the CWPRB had been doubtful about the range of the functions of each Board an opinion had been sought from the Crown Solicitor.
The effect of this attitude was reflected in the minutes of the APB dated 15 December 1954 when the case of an apparently neglected Aboriginal child was drawn to the attention of the APB by the CWD but neither took action, and the child was returned to her mother. The minutes of the APB record:
The Secretary reported that information had been received from the Northfield Infectious Diseases Hospital that a part-aboriginal child…, had been admitted to hospital smothered with impetigo sores and apparently neglected. The Medical Officer considered it was wrong for the child to be returned to her parents. A communication had been received from the [CWD] suggesting that the case apparently would be one with which this Department would be interested and able to make the necessary arrangements for the care of the child. It was noted that no aboriginal child can be considered to be neglected or destitute as the [APB] is the legal guardian of any such child, and should a child be found in the condition above-mentioned it would be necessary for the [APB] to take steps to correct the position. As Colebrooke Home and Umeewarra Mission are already overcrowded there is no other Home in which the child could be accommodated. It was agreed that no action could be taken and that the child should be returned to her mother at Point McLeay.
In January 1955, the deputy chairman of the APB considered that it was the duty of the APB to see that Aboriginal children were provided for, and not necessarily to provide for them, and that it was the duty of the CWD to take charge of neglected or orphaned part-Aboriginal children.
Relationship between the APB and the CWPRB
In about January 1956, the secretary of the APB and the chairman of the CWPRB met to discuss neglected and delinquent Aboriginal children. As a result, the secretary of the APB prepared a report for the consideration of the CWPRB, explaining that the legislation clearly intended that where, despite the best efforts of the APB, Aboriginal children were destitute, neglected or uncontrolled those children were the responsibility of the CWPRB. The CWPRB was pressed to accept as State children all destitute, neglected and uncontrolled Aboriginal children, as provided in existing legislation. The recommendation to the CWPRB was that the provisions of section 38 of the Aborigines Act 1934-1939 were to be invoked in the case of neglected, destitute or uncontrolled “full blooded aboriginal children” and the provisions of the Maintenance Act 1926-1937 were to be invoked in the case of “part aboriginal” children.
It is clear from minutes of the secretary of the APB, that it was his understanding that the APB did not have the power to remove destitute or neglected children from their parents. On 3 February 1956, in a minute from the secretary of the APB to the chairman of the CWD, the secretary advised:
The Aborigines’ Act 1934/39 charges the [APB] with the duty of controlling and promoting the welfare of aborigines and provides that “each member of the [APB] shall be the legal guardian of every aboriginal child…..until the child attains the age of 21 years, except where such child is a State child within the meaning of the Maintenance Act”. Provision is made for the [APB] to expend monies placed at its disposal for the custody, maintenance and education of the children of aborigines but does not provide for their removal to an institution or any place where they could be maintained or educated. The Crown Solicitor has ruled that, although the [APB] are the legal guardian of aboriginal children the fact of their being so does not permit them to remove the children from their parents whether neglected or not.
[emphasis added].
The secretary of the APB further stated in the minute of 3 February 1956 that despite the advice of the Crown Solicitor with respect to section 17, the secretary did not consider that the APB had the power to remove Aboriginal children and place them within the boundaries of an Aboriginal reserve:
Section 17(1) of the Act does, however, provide that aborigines may be removed and kept within the boundaries of an aboriginal reserve or institution, and the Crown Solicitor is of the opinion that children could be removed from their parents under this Section, but obviously this was not the intention of the legislation.
The secretary continued:
Other matters, such as the [APB] being charged with the duty of providing for the custody, maintenance and education of the children of aborigines are, according to the Crown Solicitor, of a general nature and not specific enough to authorize the removal of aboriginal children from their parents, regardless of the fact that Section 42(1) III provides for regulations to be proclaimed enabling an aboriginal child to be sent to or detained in an aboriginal institution or industrial school.
…
It would appear that the legislation concerned clearly intended destitute, neglected or uncontrolled aboriginal children to be the responsibility of the [CWPRB], otherwise provision would have been made in the Aborigines’ Act for the removal of such children, and the power to transfer the control of such children to the [CWPRB] would otherwise not have been included.
In view of the fact that the Aborigines’ Act does charge the [APB] with the duty of controlling and promoting the welfare of the aborigines and in providing that the [APB] shall be the legal guardian of every aboriginal child, it would appear that primarily the [APB] should provide for the control, welfare, maintenance and education of aboriginal children which in effect it does. Where, however, a child is destitute, neglected or uncontrolled, and any action taken by the [APB] does not, despite the [APB’s] effort, improve the situation, which frequently happens, then it would seem that the [CWPRB] should approve of the transfer of control of the child to [the CWPRB]. Unfortunately, the Crown Solicitor has ruled that an aboriginal child should not become destitute or neglected because of the fact that the [APB] is its legal guardian and charged with the duty of providing for its welfare. Although legally this may be the position, any practical action taken by the [APB] through the officers of this Department rarely improves the situation.
The [APB] have on many occasions discussed the question of destitute, neglected or uncontrolled aboriginal children and finds with their limited authority that it is quite impossible to adequately or satisfactorily care for such neglected children.
On 18 April 1956, the chairman of the CWPRB responded to the minute of the secretary of the APB:
The [CWPRB], after carefully considering your apparent difficulties in adequately controlling and caring for aboriginal children (vide your minute herein of the 3^rd February), is of the opinion that these children should be provided for in the following way.
The part aboriginal, whether exempted or not, who is living a fully independent life, earning and paying rates and taxes, should be accepted into our community life. Neglected or destitute children from this group should be subject to the same court orders as other children and should continue to be placed, when necessary, in our departmental institutions with white children.
All other destitute or neglected aboriginal or part aboriginal children should continue to be the responsibility of the [APB]. In some cases, eg myall aboriginals living a tribal life, etc, it would be unthinkable to remove the children from their parents. In others, it seems hardly right to expect this Department to admit these children into departmental institutions when it has no power or authority in the matter of improving their usual living conditions.
So it is suggested and preferred that the [APB] endeavours to establish institutions for the purpose and seek any legislative authority deemed necessary to adequately control and care for these destitute or neglected aboriginal children.
[emphasis added]
In conformity with the chairman of the CWPRB’s minute of 18 April 1956, on 13 June 1956, the CWPRB notified the APB that the latter’s request to have an Aboriginal child committed to one of the institutions run by the CWPRB was refused.
The secretary of the APB noted that the matter had reached a stage where urgent action was required because the Aborigines Department had limited resources and the CWPRB refused to accept Aboriginal children because they considered those children to be the responsibility of the APB. He recommended that the matter be referred to the Minister.
At a special meeting of the APB on 18 May 1956, the APB agreed the whole matter should be referred to the Minister of Works who may wish to discuss these matters with the Minister in control of the CWPRB and submit the matter to Cabinet.
On 18 May 1956, the secretary of the APB wrote to the Minister of Works to raise the CWPRB’s refusal to accept Aboriginal children into its institutions and to seek urgent assistance given the invidious position that the APB, as the legal guardian of such children, was placed in as a result. The secretary concluded:
It is essential and an urgent matter that either one of the Boards concerned or, to some extent, both of them, accept the responsibility of caring for these unfortunate children. My Board have agreed to forward this matter for the consideration of the Honourable Minister as, to a large extent, it is a question of Government policy. The Honourable Minister may wish to discuss these matters with the Minister in control of the CWPRB and/or submit this matter to Cabinet for an expression of Government policy.
The unsuccessful attempts on the part of the APB to press the CWPRB to accept responsibility for neglected or destitute children continued. At the same special meeting the APB agreed that the provisions of section 38 of the Aborigines Act 1934-1939 should be invoked in relation to a child who had been reported as neglected.[13] However, as earlier observed, the CWPRB refused to approve the committal of the child. Instead the chairman of the CWPRB wrote to the secretary of the APB and advised:
That my Board, after considering the matter, decided not to approve of the committal of this child to a Departmental Institution.
This ruling is in conformity with my Board’s previous decision on the general question of the committal of Aboriginal children to this Department’s institutions. This was advised to you on the 18^th April last …
[13]Minutes of the Special Meeting of the APB on 18 May 56. The Board resolved the child “should be committed to an institution within the meaning of the Maintenance Act 1926 and the approval of the CWPRB be obtained for this purpose”.
On 20 June 1956, the secretary of the APB reported this refusal by the CWPRB to approve the child’s committal and advised that the child had been removed from her parents and “temporary arrangements” were made for her to be admitted to the Methodist Babies Home. The Minister was also advised of these arrangements and provided with a copy of the letter from the CWPRB, but nothing happened.
In its annual report to Parliament for the year ending 30 June 1956, the APB pressed its opinion that the CWPRB should act in the case of neglected Aboriginal children.[14]
[14] Annual Report of APB for year ending 30 June 1956:
“Throughout the State there are many neglected Aboriginal children, and with the present staff and lack of government institutions, it is impossible for these children to be properly cared for. The Board are of the opinion that such children should either be placed in institutions under the control of the CWPRB or that departmental institutions be established under the control of the Board.”
Five months after the APB had raised this issue with the Minister of Works and in the absence of any response, the APB again raised the matter with the Minister. This time it was in connection with a child who had been committed to the care of the CWPRB by the Education Department for being habitually absent from school. The CWPRB had asked the APB to make a contribution to the maintenance of the child.[15]
[15] Minutes of the Meeting of the APB on 17 Oct 56.
“The [CWPRB] further agreed that the Minister be requested to give a direction as to whether the [CWPRB] is justified in paying these expenses on behalf of a neglected child who is under the care of the [CWPRB]. The [CWPRB] have previously submitted a Minute on the matter of neglected children and await the Honourable the Minister’s decision”.
And by further Minute to the Minister of Works dated 18 October 1956 the secretary of the APB raised this matter with the Minister and reiterated “my [APB] have previously submitted a minute on the matter of neglected children and await the Honourable the Minister’s decision”.
On 30 October 1956, the secretary of the APB wrote to the secretary of the CWD, asking that the CWD place a neglected child. The secretary of the CWPRB replied that the child could not be admitted to one of their institutions. Subsequently, the secretary of the APB wrote to the Minister informing of the invidious position with which the APB was confronted in light of the CWPRB’s refusal to perform its statutory role and again requesting governmental action:
The [APB] have previously drawn attention to the fact that there are neglected aboriginal children throughout the State for which the [APB] is responsible, but because of lack of legislation, no action can be taken to correct the position.
The [APB] has no power to remove children from their parents but the Aborigines Act, 1934-39 does provide that the [APB] may, with the approval of the [CWPRB], commit any aboriginal child to any institution within the meaning of the Maintenance Act. Unfortunately, the [CWPRB] will not approve of such transfers being made.
Recently information was received in this office that [blank], born on 6^th September 1955, the illegitimate daughter of [blank] and supposedly [blank] was in the Port Augusta Hospital in an advanced state of malnutrition. A few weeks ago, the Senior Welfare Officer of this Department saw this child during a visit to the mother’s camp and impressed upon the mother the necessity of properly feeding and caring for the child. The mother was also warned that unless the child received more care, it would be placed in a home.
The Port Augusta Hospital Authorities state that the child was received at the Hospital in a shocking state and should not, under any circumstances, be returned to her mother.
Following this information, the [CWPRB] were approached requesting that the child be admitted to one of their institutions. The Secretary of the [CWPRB] has now replied that the child cannot be admitted.
My Board are desirous that its recommendation in regard to the care and control of neglected aboriginal children should be submitted to the Government for a direction as to whether the [APB] or the [CWPRB] should accept the responsibility for these children.
[emphasis added]

This minute from the secretary of the APB discloses that, in the opinion of the APB itself, the APB did not, under the Aborigines Act 1934-1939, possess the power to remove Aboriginal children from their parents, regardless of the circumstances, without the approval of the CWPRB. In the secretary’s view, the APB required such power in order to properly execute its role and duty as the legal guardian of Aboriginal children, but it is clear from the above that in his view, the APB lacked such power.
As a result of this refusal on the part of the CWPRB to co-operate and without having received a response to the earlier minutes, the secretary of the APB wrote again to the Minister, reiterating the request “for a direction as to whether the APB or the CWPRB should accept the responsibility of these children”. In turn, the then Acting Minister of Works referred the matter to Cabinet. The matter was then referred by Cabinet to the Attorney-General.
The Minister of Works wrote to the secretary of the APB on 21 November 1956 and asked that he confer with the CWPRB and with the Parliamentary Draftsman.
In January 1957, the secretary of the APB reported to the Minister of Works that he had conferred with the CWD. In the course of his report he added:
I have conferred with the Parliamentary Draftsman as to whether legislation would be required to enable the [APB] to establish institutions for aboriginal children and beg to advise that the Parliamentary Draftsman is of the opinion:-
(1)While the [APB] probably has the implied power to establish institutions for aborigines or special classes of aborigines, the Act is not clear at this point and if it is desired to establish such institutions, it is desirable to provide expressly for such an establishment by legislation.
(2)As regards compulsory separation of neglected aboriginal children from their parents and their detention in institutions, it would be desirable to make the powers clear.
(3)The [APB] is of the opinion that the Juvenile Court should have power to order the detention of children in aboriginal children’s institutions but this cannot be done without additional legislation.
My Board are most anxious that some early action be taken in order that neglected aboriginal children throughout the State can be adequately cared for.
The secretary of the APB wrote again to the Minister on 1 May 1957:
As you are aware, the [CWPRB] in this State refuse to accept any responsibility for full-blood aborigines and only for part aboriginal children where they are living a fully independent life, earning and paying rates and taxes, and accepted into the community life. The [CWPRB] are of the opinion that all other destitute or neglected aboriginal or part aboriginal children should continue to be the responsibility of the [APB], and they have suggested and prefer that the [APB] endeavours to establish institutions for the purpose, and seek any legislative authority deemed necessary to adequately control and care for these neglected and destitute children.
The secretary also informed the Minister of the legislative scheme in Victoria, and noted that, unlike South Australia, the children’s welfare authority in Victoria accepted responsibility for Aboriginal children.
In the meantime, due to the CWPRB’s consistent and repeated refusal to provide care for neglected, destitute and uncontrolled Aboriginal children, alternative and informal arrangements were made for dealing with these children. Notwithstanding the Crown Solicitors’ advices and the APB’s and the Aborigines Department’s view of their limited legal authority and power, officers of the Aborigines Department arranged for the placement of Aboriginal children in foster homes and religious institutions.[16] The APB approved the payment of maintenance for those children.
[16] Examples include - Advertisement in The Advertiser dated 20 Dec 56; Letter of Mr Lewis, Secretary, Children's Welfare and Public Relief Department dated 14 Jan 57; Advertisement in The Advertiser 25 Jan 57; letter of Welfare officer, Aborigines Department to Mrs H dated 7 Feb 57; Minutes of the Meeting of the APB dated 6 Mar 57; Minutes of the Meeting of the APB dated 3 Apr 57; and Letter of Miss Gillam to Mrs K dated 15 Apr 57.
In June 1957, the Minister of Works noted that the South Australian Premier had suggested the CWD should take care of neglected Aboriginal children.
However, in October 1957, the position remained unchanged. The secretary of the APB advised the Umeewarra Mission, Pt Augusta that “the CWPRB will not charge these children as neglected, nor accept them into their Homes, and as you know the APB has no authority to do so”.
In November 1957, the secretary of the APB advised the Minister of Works that the CWPRB still considered that neglected Aboriginal children should be the responsibility of the APB, except those who were living a fully independent life, and that in practice the CWPRB would not accept neglected Aboriginal children.
A Change of Approach
It is relevant to note at this stage that the foregoing remained the attitude and practice of the CWPRB until October 1960 when the chairman of the CWPRB advised the Chief Secretary of a shift in the board’s attitude. He advised that whilst the CWPRB was not in favour of utilising the procedures under section 38 of the Aborigines Act 1934-1939, it would accept children committed to it by a court. The chairman noted that the CWPRB and officers of the CWD would confer with the APB and its officers, on request, in matters where court action was contemplated. In particular, in his minute the chairman reported:
The [CWPRB] is not in favour of acting administratively with the [APB] to make an aboriginal child a State child, although this is provided for in the Aborigines Act, because there would usually be objection from the child or his relatives, and the [CWPRB] prefers, in such cases, that a Court should decide whether the liberty of the individual should be restricted.
If an aboriginal child is committed to the [CWPRB] by a Court, the Department will receive him and deal with him until the expiration of the mandate. If the charge is under the Education Act, this will be only until the child is of school-leaving age. In other cases it would be until he is 18 years. Since January, 1960, the [CWD] has received into its Institutions 19 aboriginal or part-aboriginal children, in addition to some who have been re-admitted following committals in previous years. Eighteen of these 19 children were neglected and one was uncontrolled.
The [CWPRB] is still of opinion that aboriginal children living a tribal life should be dealt with by the [APB]. In cases where aboriginal children are living on aboriginal reserves or in aboriginal institutions, the [CWPRB] feels that the [APB] should care for and control them, at least until a Court commits them to a [CWD] Institution. Where aboriginal children are not living under primitive conditions or in aboriginal reserves, they may reasonably be dealt with in the same way as white children in similar circumstances. Where aboriginal children have been living as members of the community there is less difficulty in their adjustment to life with white children in [CWD] Institutions. Where, however, aboriginal children have been living primitively, it is to their own disadvantage to be placed precipitately in an all-white environment.
The [CWPRB] therefore respectfully RECOMMENDS that necessary additional legislative authority should be afforded the [APB] to ensure provision for aboriginal children living in a primitive or near primitive life. The [CWPRB] will deal, as it has in the past, with other aboriginal children who are committed to it by the Courts.
The [CWPRB] and its officers will confer, on request, with the [APB] and its officers in those cases where court action may be thought necessary and whether preliminary discussions are considered appropriate. Where aboriginal children are committed to the [CWPRB], it will be to the children’s advantage if the [APB] makes available its facilities as needed.
It is clear from the above discussion regarding the tension between the APB and the CWPRB that the APB itself considered that in the absence of approval from the CWPRB, it lacked the legal authority and power to remove Aboriginal children from their parents. In a letter dated 16 October 1958 to his counterpart in the State of Victoria, the Superintendent of Aborigines Welfare, the secretary of the APB responded to a number of inquiries made by the Victorian Aborigines Welfare Board regarding the practices and policy for the care and protection of Aboriginal people in South Australia. In relation to Aboriginal children, the secretary of the APB wrote:
I cannot prove that there is, but I feel sure that a higher mortality rate is evident amongst aboriginal children than those of other descent. Unfortunately, there is a considerable amount of under-nourishment, malnutrition and many cases of neglect. Aborigines, despite encouragement and assistance, when the time comes they do as they desire. You are no doubt aware that they do not prepare meals as we do, nor will they take proper care of utensils, etc. when feeding babies. In fact, quite frequently they do not seem to worry whether the child is fed or not. Very few aboriginal children are given breakfast before attending school, and of course a lot of their income is wasted in the purchase of cool drinks, lollies, tinned foods, and unfortunately in gambling and the purchase of intoxicants. There is not a high proportion of aboriginal children who are wards of the State, simply because our legislation does not provide that neglected children can be removed from their parents, except by transfer to the [CWPRB] who in any case, will not accept them. At the present time, although I would ask you to treat this as confidential, a Bill is in the course of preparation whereby it is hoped that the Board will have authority to charge children as neglected and commit them to homes and institutions. Again in confidence, for some years without legal authority, the Board have taken charge of many aboriginal children, some are placed in Aboriginal Institutions, which by the way I very much dislike, and others are placed with foster parents, all at the cost of the Board. At the present time I think there are approximately 300 children so placed, and the cost of maintaining these children during this financial year will be over £30,000. As often as possible we arrange for this type of child to be adopted, necessarily of course, with the authority of the parents.
[emphasis added].
On 20 October 1958, the secretary of the APB, in a minute to the members of the board wrote:
You are aware that for some years there has been concern regarding neglected and destitute aboriginal children, who are not being accepted by the [CWPRB].
You are also aware that there is no legal provision for the Board to remove an aboriginal child from its parents whether neglected or not.
This was confirmed in a memorandum dated 11 November 1958 from the secretary of the APB to the staff of the Department, which all staff members initialled to indicate that they had read and noted the document. In the memorandum, the secretary emphasised that staff were not permitted to discuss with or provide information to any outside party regarding the legislation, the powers of the APB or the removal of Aboriginal children. The memorandum stated:
TO ALL STAFF FOR NOTING
In the local press it was recently stated that the Aborigines Advancement League have formed a committee to review the provisions of the Aborigines Act, 1934/39. In the press article special mention was made regarding the Board’s powers in connection with neglected aborigine children.
Please note that no member of the staff is permitted to discuss any matters in connection with legislation as it is at present or any possible amendments to the Aborigines Act.
It is permissible to discuss what is recognised as Board policy, but even then every care should be exercised that any remarks of any officer do not cause embarrassment to the Board or the Department.
In particular, no information is to be made available as to the powers of the Board as provided in the Act, especially as regards the removal of aboriginal children from their parents. All such enquiries are to be directed to the Secretary.
[emphasis added]
The chief welfare officer, John Weightman and welfare officers Marjory Angas and Brian Bennett, were amongst those staff members who received the memorandum. This memorandum evidences the acute sensitivity surrounding the APB’s practice of removing Aboriginal children.
Mr Bennett, a former welfare officer with the Aborigines Department and its successor the Department of Aboriginal Affairs, gave evidence that he understood that only the CWD had the power to remove children. He understood that the practice at the time was to consult with the CWD when there was a concern that a child was neglected and there was a need for intervention. The following exchange took place during cross-examination:
QAs at the middle of 1958, you were aware that there was some sensitivity in the department about whether or not the department had legal power to remove children from their parents. Do you remember that concern.
A     From my memory, the department didn't have the power to do it. The [CWD] did.
QYou were aware that the [APB] did not have legal power to take children from their parents.
AI can't remember what the Act says. I mean, that's a long time ago. I don't know what the Act says prior to when it was changed in 1960 something.
QBut you were certainly aware that the department you worked for did not have legal power to take Aboriginal children from their parents.
A     No, I believed that the [CWD] had that power.
Q     And that's a different department.
A     Yes.
…
QYou believed that your department did not have legal power to take children from their parents.
AI don't know what date and I'd have to look at the Act. I can't recall that. Could I qualify that by saying that I don't believe that I, at any time during my career as a welfare officer, had the power to remove an Aboriginal child from its parents.
QYou thought that you did have power to bring the [CWD’s] attention to a child if you had concern about that child.
A     Certainly.
QYou were aware that there was a process by which the [APB] and the [CWPRB] could agree about how the child was to be dealt with.
AI don't know that there was any collusion. I believe that the [CWD] made up their minds. They were the ones that went to court and took the child to court. I would only go as a witness. I didn’t have any powers.
The APB’s lack of power to remove Aboriginal children from their parents was again recognised by the secretary of the APB in a minute to the Minister of Works dated 20 April 1959, which commenced with the following:
It should be clearly understood that the [APB] have no authority to remove aboriginal children from their parents.
In a letter to Pastor Eckermann dated 19 May 1960, the secretary of the APB again recognised that the APB lacked power to remove Aboriginal children:
For your information only I have to inform you that legally, I have no right to remove a child from its parents. However, in such cases I do so and where deemed necessary we refuse to allow the child to be returned to it’s parents without my consent.
If you so desire you can inform the mother of the child that it has been placed in your Children’s Home at my direction and cannot be released to the mother without my written consent. You should add that I will not likely consent to the child being released until such time as the mother is properly accommodated and able and willing to care for the child in a proper manner.
[emphasis added]
Correspondence reveals that there developed a departmental practice within the Aborigines Department in approaching Aboriginal families with the purpose of encouraging parents to place their children in foster homes. On 15 May 1959, the secretary of the APB sent a letter to the officer in charge at Meningie stating:
Please find enclosed a copy of letter forwarded to [Joseph], suggesting that he place his two boys under the care of the [APB].
It would be appreciated if you would try to persuade [Joseph] that this would be in his children’s best interests.
[emphasis added]
On 27 May 1959, the secretary of the APB wrote another letter to the officer informing him:
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 [CWPRB].
On 15 March 1960 the secretary of the APB further wrote:
I have received a letter from [Joseph] in which he makes application for relief on behalf of his children, Hilda and Tom Lampard, known as Trevorrow.
An Officer from this Department has approached [Joseph] re the placement of his children on a number of occasions and I would suggest that they should be placed in foster homes.
It would be appreciated if you could approach [Joseph] regarding the placement of his children.
The officer in charge responded:
I have to advise that I have this date interviewed [Joseph] in regards to the placement of his children as suggested by this letter. I pointed out various advantages that the children would gain by such a placement but [Joseph] is still very reluctant to give any consent to such a move. He still claims that they are well fed, which they are, and also that Rita Trevorrow is now keeping house full time for all of them.
The above references make clear that at relevant times to these proceedings the APB did not consider that either it, or the Aborigines Department, had the power to remove Aboriginal children from their parents without there being compliance with the earlier mentioned statutory processes.
This discussion about the legislative scheme provides evidence of the governmental background against which the plaintiff’s removal and fostering are to be considered. The plaintiff was dealt with at a time of tension between relevant government entities and in circumstances where all the relevant entities were aware of and concerned about the limited powers of the APB.
Findings
Each of the facts and matters referred to thus far under the heading “Legislative Context” is supported by evidence in the trial. I find that the events recorded occurred, that the observations recorded were made and that the opinions expressed were in fact held. I find each of these facts and matters proved on the balance of probabilities - each was referred to in a document, evidenced by a document or supported by a document. The documents identified were ordinary business record of the time. Oral evidence provided further support. Whether the legal advices given by the successive Crown Solicitors were correct legal advices is an issue to be discussed and resolved later in these reasons.
In particular, I am satisfied that, from as early as 1949, concerns were held by the APB, the CWPRB and government Ministers, including the Attorney-General, about the extent of the legal authority of the APB to deal with neglected Aboriginal children. That concern led to the taking of advice from several Crown Solicitors about the extent of the legal powers of the APB. The matter was considered to be one of great importance and was referred to Cabinet as well as the Ministers responsible for the APB and the CWPRB.
As earlier observed, the legislative scheme and in particular section 38 of the Aborigines Act 1934-1939 envisaged that there would be co-operation between the two boards, and in appropriate cases of neglect for Aboriginal children to be placed into institutions controlled by the CWPRB.
I find that insurmountable difficulties arose because of the ongoing and consistent refusal of the CWPRB to enter into any dialogue as envisaged by section 38. This refusal continued throughout the 1950s and spanned the time of the plaintiff’s removal and fostering.

O’Loughlin J also addressed the affinity between Aboriginal people and their land:[289]
It is well-known and accepted that Aboriginal people have an immensely strong attachment to their land. The unique relationship between Aboriginal people and their land was described by Professor Stanner, in a passage cited by Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 356-357:
“No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word ‘home’, warm and suggestive though it be, does not match the Aboriginal word that may mean ‘camp’, ‘hearth’, ‘country’, ‘everlasting home’, ‘totem place’, ‘life source’, ‘spirit centre’ and much else all in one. Our word ‘land’ is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of ‘earth’ and used the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side’. I have seen an Aboriginal embrace the earth he walked on. To put our words ‘home’ and ‘land’ together into ‘homeland’ is a little better but not much. A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call ‘land’ we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I describe as ‘homelessness’, then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life, every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left.”
[289] Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [1506].
The effects of the plaintiff’s removal from his family, his consequent anxiety and depressive state, and his ongoing depression and alcoholism have had the consequence that he has been unable to rejoin his community or take part in their cultural activities. The plaintiff’s claims were supported by his siblings’ evidence. He has lost the chance to participate in the way that his siblings and in particular his brothers have participated. He is entitled to an award of general damages for these losses.
The plaintiff claimed to have suffered a loss of his Aboriginal culture and identity as a result of the unlawful conduct and breaches of duty of the State. It was said that the plaintiff lost the ties to his indigenous community – the Ngarrindjeri community. It was claimed that he had not been able to form part of, or join, that community. He had not learnt their customs and traditions. The plaintiff claimed that he had not been able to join with his wife’s indigenous community at Bairnsdale in Victoria. He simply did not fit in.
The plaintiff’s siblings and half-siblings spoke generally of the plaintiff and of his inability to participate in their community and culture and of his general indifference. I found the evidence to be reliable and accurate. I am prepared to accept and act on this evidence.
The plaintiff as a result of the State’s conduct has not developed a cultural identity with his people. This is a material and compensable loss. He has been unable to fit in or belong and again this has led to considerable distress. This is a contributing factor to his depressive state and should be brought to account in the assessment of general damages.
All of this has led to great unhappiness and misery. It is not that the communities did not wish him to belong. It was that he was unable to join them. In all probability, this was the result of his separation from his natural family and mother, his isolation from that family for a decade, and his subsequent mental illness. The circumstances of his return to his natural family compounded his problems and as discussed earlier, his ongoing depression and alcoholism have precluded his ability to take part in his Aboriginal heritage and culture.
The values of the Ngarrindjeri community were demonstrated by the plaintiff’s siblings. Their involvement in the community and its heritage and culture were detailed. Both the plaintiff’s brothers now play a leading role in the maintenance of that culture and they and their families are active in the community. As earlier discussed, they have an extensive involvement in Camp Coorong and its education and tourism programs. They are both spokespersons for their communities within Australia and overseas. It is not possible to conclude whether the plaintiff would have followed the same or similar paths had he remained with his natural family throughout. However, counsel for the plaintiff submitted that he has lost that chance.
It is possible following the conclusion of this litigation that the plaintiff may, in some way, be able still to join the Ngarrindjeri community and take part in its traditions and culture. However, I consider this to be only a possibility, having regard to the plaintiff’s poor state of health, his age and his inability to form part of that community despite a number of attempts over many years.
The plaintiff is to be compensated for the suffering brought about through the loss of his Aboriginal identity and culture. In awarding general damages, regard must also be had to the plaintiff’s ongoing distress as to the consequence of the effects of his separation.
Counsel for the plaintiff submitted that the plaintiff’s injuries could be compared to those of quadriplegia. I consider this comparison to be unhelpful. It is simply not possible to make a meaningful comparison.
In assessing damages and having regard to the plaintiff’s poor health, I have concluded that the major component of the assessment relates to prejudgment losses. In the result I have reached the broad conclusion that 90% of the damages to be awarded are referrable to prejudgment losses.
Exemplary Damages
In addition to compensatory damages, the plaintiff seeks exemplary damages.
The purpose behind exemplary damages has been described as penalising a defendant for “conscious wrong doing in contumelious disregard of another’s rights”.[290] In addition to punishing a defendant, exemplary damages can also be awarded to mark the court’s disapproval of the conduct and to deter the defendant and others from similar behaviour.
[290] Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 at 77 (Knox CJ).
In Uren v John Fairfax & Sons Pty Ltd,[291] Owen J observed:
It is not open to doubt that this and other courts in countries where the common law is in force have, time and again, recognized that there are certain types of tortious acts in which a jury may award damages over and above those required to compensate the plaintiff for the injury suffered by him if it forms the opinion, on evidence justifying that conclusion, that the defendant’s conduct in committing the wrong was so reprehensible as to require not only that he should compensate the plaintiff for what he has suffered but should be punished for what he has done in order to discourage him and others from acting in such a fashion.
These observations were relied on by O’Loughlin J in Cubillo v Commonwealth,[292] where his Honour observed:
It is not sufficient for a Court merely to disapprove of the conduct: exemplary damages should be awarded only for “the more flagrant instances of conscious wrongdoing”: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 212 per Windeyer J.
[291] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 158.
[292] Cubillo v Commonwealth (No 2) (2000) 103 FCR 1.
An award of exemplary damages can also be used to assist in redressing a plaintiff’s sense of grievance with respect to the wrongdoing committed against him or her. In Cotogno v Lamb [No 3],[293] McHugh JA observed:
An award of exemplary damages acts as an example to all those in the community who might engage in wrongdoing involving a conscious and contumelious disregard of another person’s rights. Nor should it be thought, as the argument for the defendant appeared to maintain, that exemplary damages constitute an historical anomaly which no longer serve any useful purpose. The sanctions of the criminal law are not always sufficient to protect the weak and the disadvantaged against the oppressive conduct of the powerful and the wealthy. An award of exemplary damages also serves another useful social purpose: it helps to remove the sense of grievance which the plaintiff feels when he has been the victim of insulting behaviour. …
… I think that the average Australian would expect that the victim of conscious wrongdoing committed in contumelious disregard for his rights should receive more than a person who has received comparable injuries without such conduct. So far as it is reasonably practicable to do so, the courts in interpreting and applying the law should apply the standards and respond to the demands of the average, responsible member of the community.
[emphasis added]
These observations are of particular relevance in the present case.
[293] Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 586-587.
In Gray v Motor Accident Commission,[294] Gleeson CJ, McHugh, Gummow and Hayne JJ cautioned against a rigid formula being used in awarding exemplary damages:[295]
Because the kinds of cases in which exemplary damages might be awarded are so varied it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded.
[294] Gray v Motor Accident Commission (1998) 196 CLR 1 at [14].
[295] Gray v Motor Accident Commission (1998) 196 CLR 1 at [14].
It is not possible to fix a range of exemplary damages. In Pollack v Volpato,[296] Hutley JA observed:
There is no tariff or basis for a tariff where a jury is entitled to inflict exemplary damages. Not only is the occasion for the award of such damages rare, but the jury is entitled not only to penalize the defendant for what he did but is entitled to make him an example to others. There can be no fixed scale for such deterrents. … The jury has to translate its righteous indignation at the conduct of the defendant into monetary terms appropriate to the local situation …
…
Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished, it is his proper punishment which provides the basis for the assessment of damages.
[296] Pollack v Volpato [1973] 1 NSWLR 653 at 656-657.
In Lamb v Cotogno,[297] the High Court considered whether exemplary damages had any role to play in circumstances where deterrence would not be achieved. The Court observed:[298]
So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like-minded persons, but it also extends generally to conduct of the same reprehensible kind. Whilst an award of exemplary damages against a compulsorily insured motorist may have a limited deterrent effect upon him or upon other motorists also compulsorily insured, the deterrent effect is undiminished for those minded to engage in conduct of a similar nature which does not involve the use of a motor vehicle. Moreover, whilst the smart or sting will obviously not be the same if the defendant does not have to pay an award of exemplary damages, it does serve to mark the courts’ condemnation of the defendant’s behaviour and its effect is not entirely to be discounted by the existence of compulsory insurance.
[297] Lamb v Cotogno (1987) 164 CLR 1.
[298] Lamb v Cotogno (1987) 164 CLR 1 at 10.
More recently, in Zorom Enterprises Pty Ltd v Zabow,[299] the New South Wales Court of Appeal rejected a challenge to an award of exemplary damages. It had been submitted in that case that because the defendant was in liquidation at the time of the judgment at trial, an award of exemplary damages would not have any deterrent effect and so should not be made. The Court rejected this submission, relying on the principle expounded in Lamb v Cotogno.
[299] Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106.
Prior to making an award of exemplary damages a court should review all evidence relating to aggravation or mitigation of the defendant’s conduct. The defendant’s motivation for the tortious act is a relevant factor to be weighed. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd,[300] Gibbs CJ observed:
Although the limitations which the House of Lords in Rookes v. Barnard placed on the circumstances in which exemplary damages may be awarded are not part of the law in Australia, I nevertheless consider that in that case Lord Devlin was correct in pointing to the risk that exemplary damages might amount to a punishment greater than would be likely to be imposed if the conduct were criminal, and in suggesting that in making an award juries should display restraint.
[300] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 463 (footnotes omitted).
Although exemplary damages may be awarded in negligence cases, those awards are likely to be “unusual and rare”.[301] In Gray v Motor Accident Commission, Gleeson CJ, McHugh, Gummow and Hayne JJ observed:[302]
[E]xemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind.
[301] Gray v Motor Accident Commission (1998) 196 CLR 1 at [14]; SB v State of NSW [2004] VSC 514 at [631].
[302] Gray v Motor Accident Commission (1998) 196 CLR 1 at [22] (footnotes omitted).
It has been said that a claim in negligence will not attract exemplary damages unless it can be shown that the defendant acted in conscious and contumelious disregard of the plaintiff’s rights.[303]
[303] SB v State of NSW [2004] VSC 514 at [633].
In the present case the conduct of the State was conscious, voluntary and deliberate. The instances of alleged contumelious disregard of the plaintiff’s rights identified by the plaintiff included the following: removing the plaintiff without seeking to determine whether he was a “neglected child”, removing him knowing that the APB did not have legal power to do so, and removing him without attempting to invoke the statutory procedures which existed. Further instances included misleading Thora about the plaintiff’s circumstances, failing to disclose at any time until 1997 that the removal had been done without statutory warrant, and failing to tell Thora or the plaintiff at any time that Thora was entitled to have him returned to her.
In assessing whether the conduct of the State calls for an award of exemplary damages, the Court must be satisfied that the conduct calls for manifest disapprobation by the community and that it must attract something more than compensation to ameliorate the plaintiff’s sense of grievance.[304]
[304] Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 at [113].
Despite legal advice to the contrary the State removed the plaintiff from his family, ignoring or by-passing legislative requirements designed to ensure that only children who were truly neglected or destitute would be removed from their parents. Thus the plaintiff was deprived of the right to have his circumstances examined properly, whether by a court or by two independent boards. The plaintiff and his family were deprived of the legislative safeguards designed to provide protection.
The State knew that it did not have the unrestricted power to remove Aboriginal children from their parents. The State removed Aboriginal children from their parents with full knowledge that it lacked unrestricted power to do so, making a conscious decision to disregard such a lack of power.
In the present case, the removal of the plaintiff on 6 January 1958 by the State was in full knowledge of its lack of unrestricted power to remove Aboriginal children was not an isolated occurrence, and was in a context where the State had attempted to suppress information regarding such removals from being known outside of the Aborigines Department.
It is important to also observe that an award of exemplary damages can also be justified on the basis of conduct that occurs after the commission of a tort.[305] The conduct of the State following the removal of the plaintiff on 6 January 1958 included the misleading of Thora about the plaintiff and the consistent refusal to heed Thora’s requests for the return of the plaintiff.
[305] Lamb v Cotogo (1987) 164 CLR 1; and Gerula v Flores (1995) 126 DLR (4^th) 506 (ont CA) (doctor falsified records to cover up errors).
The refusal to return the plaintiff to his mother, considering the APB knew it did not have the power to remove the plaintiff in the way it did, displayed a deliberate disregard for the plaintiff’s rights. In addition, as I have earlier observed, the State failed to provide the plaintiff with information regarding the circumstances and illegality of his removal, until it was requested to do so by the plaintiff’s legal representative in the 1990s, and it failed to ensure that the plaintiff was given access to professional advice as to his legal rights against the State.
Counsel for the plaintiff submitted that as there was no contractual relationship between the plaintiff and the State, then it is open to award exemplary damages on the equitable causes of action as well. Counsel submitted that the present case can be distinguished from Harris v Digital Pulse Pty Ltd[306] on that basis, and that Spigelman CJ’s judgment in that case was confined to the principles that exemplary damages are not available in the context where contractual relationships create fiduciary duties.
[306] Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298.
In Harris v Digital Pulse Pty Ltd, a majority of the New South Wales Court of Appeal held that there was no power in New South Wales to award exemplary damages for breach of fiduciary duty by an employee. Digital Pulse was a small company providing information technology services. Digital Pulse employed Mr Harris, the first defendant, in April 1998 and Mr Eden, the second defendant in October 1999. The employment contract of both defendants included express terms forbidding them from competing with Digital Pulse during their employment. The third defendant was Juice, a company incorporated on 27 January 2000 with Mr Harris and Mr Eden as directors. The claims involved activities by Mr Harris and Mr Eden in the months before they left Digital Pulse in early February 2000. The claims centred on Mr Harris and Mr Eden having diverted work from Digital Pulse to Juice. Digital Pulse claimed damages on a number of grounds, including breach of contracts, breaches of statutory duties under the Corporations Act 2001 (Cth), breaches of Fair Trading Act 1987 (NSW) and the Trade Practices Act 1974 (Cth), and equitable compensation or an account of profits for breach of fiduciary duty. Digital Pulse also sought exemplary damages for breach of fiduciary duty.

The trial Judge, Palmer J, found that the defendants had engaged in conduct that was a breach of contract and a breach of fiduciary duty, allowing Digital Pulse to elect whether it would receive equitable compensation or an account of profits. Palmer J also awarded exemplary damages for a breach of fiduciary duty.
In the Court of Appeal, Heydon JA found that the law of New South Wales does not recognise a power to award exemplary damages for equitable wrongs.[307]Heydon JA reviewed the case law and found that it is consistent with the notion that equity does not punish. Spigelman CJ said that a punitive monetary award was incompatible with the context of a contract, because if a clause requiring a penalty payable for breach was provided as a provision of the contract it would have no legal effect. Mason P, in dissent, endorsed the decision of Palmer J to award exemplary damages in equity.
[307] Harris v Digital Pulse (2003) 56 NSWLR 298 at [470].
On the issue of whether exemplary damages may be awarded with respect to an equitable claim, my inclination is to adopt the reasoning of Mason P in Harris, and in particular the following:[308]
In my opinion, the present position in Australia can be summarised thus. There is no authority which decides that exemplary damages cannot, as a matter of principle, be given by a court of equity for breach of fiduciary duty. Accordingly, to hold that wrongful conduct which would attract an award of exemplary damages in an action in tort cannot attract exemplary damages if the cause of action is equitable creates an anomaly which, in this country, is not justifiable either by precedent or by principle.
Consistency in the law requires that the availability of exemplary damages should be coextensive with its rationale. Where wrongful and reprehensible conduct calls for the manifest disapprobation of the community, where a punishment is called for to deter the wrongdoer and others of like mind from similar conduct and where something more than compensation is felt necessary to ameliorate the plaintiff’s sense of outrage, then it should make no difference in the availability of exemplary damages that the court to which the plaintiff comes is a court of equity rather than a court of common law.
However it is unnecessary to finally resolve this issue. As earlier observed, I do not propose to award damages with respect to the equitable claims. The common law remedies provide the plaintiff with appropriate compensation.
[308] Harris v Digital Pulse (2003) 56 NSWLR 298 at [169]-[170].
CONCLUSION
Having commenced these reasons with an overview, I propose to conclude in the same vein.
The plaintiff, as an infant and as a child, was dealt with by the State without lawful authority in a manner that affected his personal well being and freedom. He was the subject of misfeasance in public office. He was falsely imprisoned. He was the subject of breaches of the common law duty of care owed by the State.
At the time of the relevant events it was reasonably foreseeable that there was a material risk of injury, loss and damage if the plaintiff was taken from his natural family and placed in care. The foreseeability of the risk and the magnitude of the damage that might follow was compounded by the manner of the removal and by the conduct following thereafter. The parents of the plaintiff were unaware of what was occurring. They did not consent. The plaintiff’s mother was provided misinformation about her son. It was a serious matter that contact between the natural family and the plaintiff, and in particular, between the plaintiff and his mother, was obstructed and did not occur for almost a decade. These circumstances left the plaintiff, as a child, suffering from an anxiety state, depression and illnesses associated with depression.
When the decision was taken to return the plaintiff to his natural family, there was a need for particular care and support. Again there was a foreseeable risk of damage if the return was not handled with care. In the event, the return was handled inappropriately, against advice and in breach of duty. Unsurprisingly, the plaintiff could not cope on his return to his natural family and he was left to work through his problems in and out of institutional care for most of his adolescence.
The plaintiff had a very troubled childhood and adolescence. His siblings who remained with the natural family were able to overcome the difficulties they encountered and were able to achieve their potential in life. This was not so for the plaintiff. The plaintiff has struggled throughout life, suffering ongoing and serious depression. His adult life has been scarred by his earlier experiences. In these circumstances I have concluded that the State is liable to compensate the plaintiff.
The Crown Solicitors of the time gave advice that the powers to remove Aboriginal children from their parents were limited. It is significant that at relevant times the State, through its Cabinet, was aware of these advices and the requests for legislative change to provide the authority to remove Aboriginal children from their natural families in an unrestricted manner. Given the serious invasion of private rights associated with such removals it is not surprising that the government was slow to move and in fact, in the event, was not prepared to provide any such broad legal authority. The relevant advices about legal authority were made known to the APB and through its secretary to the Department.
I am satisfied that the conduct of the State, amounting to misfeasance in public office, together with the false imprisonment of the plaintiff, has been a material cause of the plaintiff’s long-term depression. It was this conduct that ruptured the bond between the plaintiff and his mother and natural family. The breaches of duty of care that occurred were also a material cause of his depression and other losses. Those losses include the loss of his Aboriginal identity. Although there may have been other contributing causes, the conduct of the State was a material contributing cause.
In the result, the State is liable to the plaintiff in respect of misfeasance in public office, false imprisonment and breaches of duty of care both in regard to his removal, placement and return. The misfeasance in public office and false imprisonment occurred in circumstances where the State acted deliberately and unlawfully and in circumstances where it was reasonably foreseeable that there was a risk of harm. The same damages are recoverable as a consequence of the common law causes of action for breach of duty.
Where it is clear that a plaintiff has suffered loss the court should do its best to place a dollar value on that loss notwithstanding the paucity or absence of evidence. The court is not permitted to abandon the task through want of evidence, but a discretionary judgment should be formed. As Heydon JA in New South Wales v Moss observed:[309]
Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.
[309] New South Wales v Moss (2000) 54 NSWLR 536 at [87].
I have found this assessment of damages challenging. There is always an inherent difficulty in equating personal injury with a dollar sum. The best that one can do is to adopt an holistic approach.
I propose to made declarations and award exemplary damages. Given this approach, the common law provides, in my view, an effective and just remedy to the plaintiff for the wrongs that he has suffered. In these circumstances there is no need to consider claims for equitable compensation because they overlap the awards that I have indicated that I propose to make.
The making of specific declarations is likely to assist in relieving the ongoing suffering of the plaintiff and provide a measure of remedy and relief. I am prepared to make declarations consistent with my reasons with respect to the treatment of the plaintiff without lawful authority.
I make an award of damages in favour of the plaintiff in respect of his injuries and losses of $450,000.00. I have assessed the damages in the money of today – the day of the verdict.[310] I make an award of exemplary damages with respect to his unlawful removal and detention, that is in respect of misfeasance in public office and false imprisonment of $75,000.00. The plaintiff is entitled to judgment in the sum of $525,000.00.
[310] O’Brien v McKean (1968) 118 CLR 540; Johnson v Perez (1988) 166 CLR 351.
I direct that minutes of order be prepared to reflect the above relief including the proposed declarations. I will hear the parties on the question of interest and costs.