Trevorrow v State of South Australia - [2004] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
TREVORROW v STATE OF SOUTH AUSTRALIA
Judgment of The Honourable Justice Gray
12 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - PARTICULARS
Appeal against decision of a master declining to strike out paragraphs of a statement of claim - allegation against the defendant of illegal conduct, misfeasance in public office, breach of fiduciary duty, breach of duty of care and denial of procedural fairness - plaintiff taken from his parents as a baby without knowledge or consent - defendant complained statement of claim should be struck out - further particulars provided - rehearing proceeded with amended pleadings - appeal of defendant dismissed.

TREVORROW v STATE OF SOUTH AUSTRALIA
[2004] SASC 355
Magistrates Appeal

GRAY J This is an appeal from a decision of a master declining to strike out paragraphs of a statement of claim.
The Plaintiff’s Claim
To understand the issues on appeal it is necessary to recount the general circumstances of the plaintiff’s claim.
The plaintiff, an indigenous person, was born in 1956. When aged about 13 months and whilst living with his parents he became ill. His parents determined that he was in need of medical treatment. They arranged for a neighbour to take the plaintiff to the Adelaide Children’s Hospital. The plaintiff was treated at hospital. It is alleged that without notice to his parents the Aboriginal Protection Board removed him from the hospital and placed him in foster care. Quite some time passed before his parents were informed as to what had happened. He remained in foster care for about 12 years.
The plaintiff asserts that the defendant through its instrumentalities acted illegally, improperly and in breach of duty of care. The plaintiff pleads a number of causes of action - illegal conduct, misfeasance in public office, breach of fiduciary duty, breach of a duty of care and claims of denials of procedural fairness.
The defendant complained to the Master that discrete paragraphs of the statement of claim should be struck out. Generally the Master rejected the application.
During the hearing of this appeal it became apparent that a number of the concerns of the defendant could probably be addressed through the provision of particulars. Counsel for the plaintiff agreed to provide further particulars. That has now occurred.
The defendant ultimately pursued its appeal in limited respects. It seeks to strike out two matters from the statement of claim. A plea concerning an alleged denial of procedural fairness and a plea of a general practice. By this time the statement of claim considered by the Master had been overtaken by amendments and proposed amendments. It was agreed that the appeal should proceed by way of complete rehearing and should address the pleading as amended and as proposed to be further amended.
Denial of Procedural Fairness
The first complaint related to an allegation that there had been a denial of procedural fairness. The relevant pleading in the proposed amended statement of claim is as follows:
138The removal of the plaintiff and its implementation, referred to in paragraphs 16.2 and 16.3 hereof, denied procedural fairness to the plaintiff and his parents in their own right as well as in right of the plaintiff who was then an infant aged 13 months.
138.1The denial of procedural fairness occurred in relation to the making of the following decisions and or the purported exercise of power pursuant to the Aborigines Act 1934-1939 made by the Aborigines Protection Board and/or officers of the Aborigines Department:
138.1.1the decision and or purported exercise of power made on or about 6 January 1958 to not discharge the plaintiff from hospital into the care of his parents;
138.1.2the decision and or purported exercise of power made on or about 6 January 1958 to discharge the plaintiff from hospital into the care of Mrs Davies;
138.1.3the decision(s) and or purported exercise of power made between 6 January 1958 and on or about 12 May 1967 on dates not known to the plaintiff, not to return the plaintiff to his parents’ care, or
alternatively the continuing failure to make a decision between 6 January 1958 until on or about 12 May 1967, to return the plaintiff to his parents' care.
138.2The decisions made and or purported exercise of power referred to in paragraph 138.1 hereof, denied procedural fairness to the plaintiff and his parents in their own right as well as in the right of the plaintiff as follows:
138.2.1prior to or when making the decision and or purported exercise of power referred to paragraphs 138.1.1 and 138.1.2 hereof, no attempt was made by the Crown to contact or consult the plaintiff’s parents about the circumstances, state of health or living conditions of the plaintiff:
…
138.2.2no opportunity was provided to the plaintiff’s parents to be heard about the decisions and or purported exercise of power referred to in paragraphs 138.1.1 and 138.1.2 hereof:
…
138.2.3the decisions and or purported exercise of power referred to in paragraphs 138.1.1 and 138.1.2, denied the plaintiff’s parents their right to be heard in relation to any complaint alleging neglect pursuant to s106 of the Maintenance Act 1926-1937;
…
138.2.4the decisions and or purported exercise of power referred to in paragraphs 138.1.1, 138.1.2 and 138.1.3 denied the plaintiff’s parents the ability to challenge the removal referred to in paragraph 16.2 hereof;
…
138.2.5the decisions and or purported exercise of power referred to in paragraphs 138.1.1, 138.1.2 and 138.1.3 hereof were carried out in circumstances where the Crown knew it did not have the power of removal in the circumstances in which it was implemented as referred to in paragraph 16.2 and 16.3 hereof
…
138.2.6the decisions and purported exercise of power referred to in paragraphs 138.1.1, 138.1.2 and 138.1.3 hereof were carried out in circumstances where the plaintiff’s natural parents were deceived as to the circumstances and whereabouts of the plaintiff thereby depriving them of an ability to challenge the continued failure of the plaintiff to be returned to them;
…
138.3As a result of the denial of procedural fairness the plaintiff seeks as relief a declaration.
Counsel for the defendant submitted that it was not permissible to plead that the parents of the plaintiff in their own right had been denied procedural fairness. It was said that they were not parties to the claim and whether or not any duty was owed to them was irrelevant.
Both parents of the plaintiff are now deceased. The allegation that procedural fairness was denied to the parents of the plaintiff in their own right forms part of the background facts against which it is said that procedural fairness was denied to the plaintiff then an infant. It is possible that the allegation may prove to be unnecessary and perhaps irrelevant. However in the unusual circumstances of this claim the pleading facts should not be struck out. The plaintiff’s counsel accepted that there is no claim by the parents as parties and there is no claim by the parents for relief.
Counsel for the defendant also complained that the statement of claim included a claim for damages in respect of the claim that there had been a denial of procedural fairness.
There is an ambiguity about the way in which this claim is pleaded. At one point a general claim for damages is advanced. This claim is broad enough to be read as seeking damages for the alleged denial of procedural fairness. However the prayer for relief claims a declaration that there has been a denial of procedural fairness. Counsel for the plaintiff confirmed that declaratory relief is the only relief being sought. Damages are not claimed for with respect to the claim that there has been a denial of procedural fairness.
Counsel for the defendant also complained that the acts or omissions in respect of which there had been a denial of procedural fairness had not been clearly identified. This is a valid complaint. A perusal of the pleading indicates a lack of particularity in this respect. The defendant is entitled to have identified each decision, act or omission that is said to have involved a denial of procedural fairness.
Counsel for the plaintiff accepted the need for further particularity. This issue is best addressed by the provision of further particulars. The defendant may be satisfied by the terms of the proposed amended statement of claim referred to earlier in these reasons. In the event of adequate particulars being provided the challenge of pleading should not be struck out. This aspect of the appeal will be adjourned pending the question of the adequacy of particulars. If so advised the defendant can further agitate its complaint in the light of the further particulars.
General Practice
The second matter of complaint relates to a pleading of a “general practice” of the defendant. The relevant pleading is in the following terms:
101During the period from about 1949 to 28 February 1963, when the Aboriginal Affairs Act 1962 came into operation, the Crown through its servants, agents and instrumentalities, implemented a practice relating to Aboriginal children who were believed to be neglected. Such practice was manifested by the following:
101.1the Aborigines Protection Board publicises a need for foster parents for Aboriginal children;
101.2the Aborigines Protection Board approached religious organisations or persons, seeking “white” foster parents for Aboriginal children the Board characterised as neglected;
101.3the Aborigines Protection Board did not to [sic] approach Aboriginal communities with an appeal for foster parents;
101.4the Aborigines Protection Board preferred to place these Aboriginal children in white foster homes as first preference, then at State institutions with a significant population of white children as second preference, rather than returning them to an Aboriginal community;
101.5in some cases where the Aborigines Protection Board characterised Aboriginal infants as neglected, it:
101.5.1removed and/or facilitated the removal of those infants from their parents;
101.5.2placed and/or facilitated the placement of those infants with non Aboriginal foster parents;
101.5.3implemented these removals and placements without first obtaining parental consent.
101.5.4In other cases the removal was implemented on the basis of a signed consent from one or both of the natural parents requesting “the [Aborigines Protection] Board to undertake the care, custody and maintenance of the child until it attained the age of 18 years”, such consent was of no effect as the natural parents could not validly consent to or otherwise legitimise an action of the Aborigines Protection Board for which the Aborigines Protection Board had no power under the Aborigines Act 1934-1939.
101.5.5without availing itself of any of the procedures for the lawful removal of Aboriginal children from the custody of their parents, namely those procedures set out in paragraphs and hereto.
101.6the Secretary of the Aborigines Protection Board reported these actions to the Aborigines protection Board;
101.7 the Crown:
101.7.1did not return the children referred to in 101.5 above from their parents; and
101.7.2withheld information about the children from their parents.
Counsel for the defendant submitted that the general practice of the defendant by its instrumentalities at the time alleged had no relevance to the plaintiff’s claim. It was said that the pleading alleging a general practice should be struck out. Counsel argued that what was at issue in the case was what had taken place with respect to this particular plaintiff. It was said what may have occurred with respect to other children as a matter of general practice was of no relevance. Counsel urged that the plea be struck out as the allegations were so broad, involved so many children and the events occurred so long ago that the cost of the proper investigation and trial of this aspect of the claim would be considerable.
Counsel for the plaintiff submitted that the general practice of the defendant through its instrumentalities, provided the context in which the defendant’s conduct towards the plaintiff occurred. It was said that the general practice and the facts establishing that practice were material facts to be pleaded as part of the claim.
This pleading has been the subject of extensive particularity. During the initial hearing of the appeal, counsel for the plaintiff informed the court that her client was wholly reliant on documents discovered by the defendant for the formulation of this plea and was also wholly reliant on those documents to prove the allegations of fact that have been made. At the court’s suggestion the plaintiff prepared particulars of each aspect of the plea of general practice and identified the documents that were said to provide the evidence of each allegation. In this way the defendant has been put on notice of what were said to be the material facts and the evidence by which the plaintiff proposed to prove that aspect of its claim. Insofar as further information may exist it rests in further documents held by the defendant that have not to this time been discovered or produced. Counsel for the plaintiff submitted that the plaintiff had done all that he could. He had provided not only the best of particulars but also the evidence by which it was proposed to prove the allegations of a general practice.
Counsel for the plaintiff further submitted that the documents that had been identified through the particulars demonstrated that admissions had been made at the time that the general practice involved illegal conduct by the defendant through its instrumentalities. It was said that the documents evidencing the general practice provided the relevant factual context in which the breaches of fiduciary duty and duty of care took place. These facts were said to be relevant to the claims in respect of illegal conduct and misfeasance in public office. The facts were said to be material to the claim that there had been a denial of procedural fairness.
The plaintiff’s claim raises matters that occurred more than 40 years ago. He asserts that his rights were infringed. It is said that the plaintiff was treated in accordance with a general practice existing at the time. At the broadest level it is said that that general practice involved a deliberate illegal dealing with indigenous children.
The plaintiff’s claim requires an understanding of how he came to be removed from his family and placed in foster care for much of his childhood. These events it, is said, did not occur in a vacuum. They occurred, it is alleged, as a result of the acts of instrumentalities of the defendant in accordance with processes and practices then being followed.
The trial of the plaintiff’s claim could not proceed without an investigation of these matters. A general practice then being followed by the defendant through its instrumentalities are material facts alleged by the plaintiff. The allegations concerning the alleged general practice are appropriate matters to be pleaded.
It follows that the appeal of the defendant in this respect should be dismissed. The defendant remains at liberty to pursue an application for further particulars of the plea concerning the alleged general practice if so advised.
Conclusion
The appeal is dismissed in so far as it seeks orders striking out parts of the statement of claim. The defendant is at liberty to pursue any complaints concerning the adequacy of the particulars that have been provide.