Reported Decision: (1999) Aust Torts Reports 81-526
New South Wales
Supreme Court
CITATION: Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 10257/93 HEARING DATE(S): 19/04/99, 20/04/99, 21/04/99, 22/04/99, 23/04/99, 27/04/99, 28/04/99, 29/04/99, 30/04/99, 03/05/99, 06/05/99, 07/05/99, 10/05/99, 11/05/99; 14/05/99. JUDGMENT DATE:
26 August 1999PARTIES :
Joy Williams - Plaintiff
The Minister, Aboriginal Land Rights Act 1983 - 1st Defendant
State of New South Wales - 2nd DefendantJUDGMENT OF: Abadee J at 1
COUNSEL : Mr N. Hutley SC; Ms C. Adamson - Plaintiff
Mr C. Barry QC; Mr D. Cowan - 1st and 2nd DefendantsSOLICITORS: Kingsford Legal Aid Centre - Plaintiff
State Crown Solicitor - DefendantsCATCHWORDS: NEGLIGENCE - Duty of care to whom - Aborigines Welfare Board - Common Law duty of care to protect promote and maintain child placed in its control by mother - Whether a duty of care owed to plaintiff - Novel case - Test for recognition of duty - Whether such should be recognised - No duty of care - No breach of duty - No causation;; STATUTE - Aborigines Protection Act 1909-1943 - Whether giving rise to a private right of action - Private right of action not created; EQUITY - Fiduciary relationship - Whether fiduciary relationship between child ("ward") and the Aborigines Welfare Board under the Aborigines Protection Act - Nature of relationship scope and content of duty assuming a fiduciary relationship - Whether duty of care to prevent personal injury - Whether breach of fiduciary duty - Causation - Laches, prejudice and delay as "bars" to equitable relief if entitlement established; DAMAGES - No entitlement to damages - Difficulties in any compulation - Damages highly speculative - Assessment only done contingently to assist in event of Appeal and having regard to age and general ill health of plaintiff - No entitlement to aggravatory or exemplary damages; EXPERT EVIDENCE -Nature of such - Assessment and acceptance of such - Qualifications; EVIDENCE - State of Knowledge; LAW REFORM - Whether a claim for breach of fiduciary duty (if available) arising from the same facts and circumstances relied upon to support a common law cause of action should be subject to the provisions of the Limitation Act. ACTS CITED: Aborigines Protection Act
Adoption Act
Child Welfare Act (NSW)
Child Welfare Act (WA)
Limitation Act
Aboriginal Land Rights Act 1983
Crown Proceedings Act 1988
Evidence Act (NSW)
Public Service Act 1902
Aborigines Protection (Amendment) Act No 12 1940
Neglected Children and Juvenile Offenders Act
Children and Young Persons Act 1974CASES CITED: Cubillo v The Commonwealth of Australia [1999] FCA 518;
Ronnoc Finance v Spectrum Network Systems (1998) 45 NSWLR 624;
Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497;
Maguire v Makaronis (1997) 188 CLR 449;
Tito v Waddell (No 2) [1977] Ch 106;
Orr v Ford (1989) 167 CLR 316;
Fitzgerald v Masters (1956) 95 CLR 420;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;
Toohey v Metropolitan Police Commissioner [1965] AC 595;
Longman v The Queen (1989) 168 CLR 79;
Kruger v Commonwealth of Australia (1997) 190 CLR 1;
Tucker v U. S. Department of Commerce (1992) 958 F 2d 1411 at 1413;
Breen v Williams (1996) 186 CLR 71;
Breen v Williams (1994) 35 NSWLR 522;
State Government Insurance Commission v Trigwell (1979) 142 CLR 617;
Maloney v The Commissioner for Railways (NSW) (1978) 52 ALJR 292;
Quigley v The Commonwealth of Australia (1981) 55 ALJR 579;
Commissioner for Railways v Anderson (1961) 105 CLR 42;
Giannarelli v Wraith (1988) 165 CLR 543;
Public Trustee v The Commonwealth of Australia (NSWCA 20 December 1995, unreported);
Barrett v Enfield London Borough Council [1999] 3 WLR 79;
Romeo v Conservation Commission (NT) (1998) 192 CLR 431;
Hahn v Conley (1971) 126 CLR 276;
Attorney-General v Prince & Gardner [1998] 1 NZLR 262;
Smith v NSW Bar Association (1992) 176 CLR 256;
Abalos v Australian Postal Commission (1990) 171 CLR 167;
State Rail Authority v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306;
R v Turner (1974) 60 Crim App R 80;
HG v The Queen (1999) 73 ALJR 281;
Ahmedi v Ahmedi (1991) 23 NSWLR 288;
X (Minors) v Bedfordshire County Council [1995] 2 AC 633;
Gower v State of South Australia & Perriam (1985) 39 SASR 543;
Aborigines Welfare Board v Saunders [1961] NSWR 917;
Wedd v Wedd [1948] SASR 104;
Fountain v Alexander (1982) 150 CLR 615;
Lawson v Youngman [1980] 2 NSWLR 457;
Ex parte Vorhauer; Re Steep (1968) 88 WN (Pt 1) (NSW) 135;
Coe v Gordon [1983] 1 NSWLR 419;
O'Connor v S. P. Bray Pty Ltd (1937) 56 CLR 464;
Stovin v Wise [1996] AC 923;
Northern Territory v Mengel (1995) 185 CLR 307;
Sutherland Shire Council v Heyman (1985) 157 CLR 424;
Leask Timber Hardware pty Ltd v Thorne (1961) 106 CLR 33;
Pyrenees Shire Council v Day (1998) 192 CLR 330;
Newcastle City Council v GIO General Limited (1997) 72 ALJR 97;
E v K [1995] 2 NZLR 239 at 245;
O'Rourke v Camden London Borough Council [1998] AC 188;
Norberg v Wynrib (1992) 92 DLR (4th) at 499;
M (K) v M (H) (1992) 96 DLR (4th) 289;
Re Coomber, Coomber v Coomber (1911) 1 Ch 723;
SEC v Chenery Corporation (1943) 318 US 80;
Warman International Ltd v Dwyer (1995) 182 CLR 554;
Paramasivam v Flynn (1998) 160 ALR 203 at 218;
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41;
Mabo v Queensland (No 2) (1992) 175 CLR 1;
Green & Anor v Minister for Child Welfare [1972] 1 NSWLR 314;
Minister for Interior v Neyens (1964) 113 CLR 411;
Quinn v Minister for Youth and Community Services (1986) 5 NSWLR 716;
Youngman v Lawson [1981] 1 NSWLR 439;
Duke of Beaufort v Berty [1721] 24 ER 579;
Bennett v Minister for Community Welfare (1988) Aust Torts Reports (80-210);
AMS v AIF (1999) 73 ALJR 927;
Brunninghauser v Glavanic (NSWCA, 23 June 1999, unreported);
Bristol and West Building Society v Mothew [1997] 2 WLR 436;
O'Halloran v R. T. Thomas and Family Pty Ltd (1998) 45 NSWLR 262;
Prince v Attorney-General [1996] 3 NZLR 733;
Stubbings v Webb [1993] AC 498;
Henderson v Merett Syndicates [1995] 2 AC 145;
Permanent Building Society v Wheeler (1994) 14 ACSR 109;
Target Holdings Ltd v Redferns [1996] AC 421;
Briginshaw v Briginshaw (1938) 60 CLR 336;
Barnes v Hay (1988) 12 NSWLR 337;
Havenaar v Havenaar [1982] 1 NSWLR 626;
Todorovic v Waller (1981) 150 CLR 402;
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657;
Lamb v Cotogno (1987) 164 CLR 1 at 8;
Trend Management Ltd v Borg (1996) 40 NSWLR 500;
Gray v Motor Accident Commission (1998) 73 ALJR 45;
Nominal Defendant v Gardikiots (1996) 186 CLR 45;
Kars v Kars (1996) 187 CLR 354;
Griffiths v Kerkemeyer (1977) 139 CLR 161;
Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54;
Chapman v Hearse (1961) 106 CLR 112;
Wilson v Peisley (1975) 50 ALJR 207;
Medlin v State Government Insurance Commission (1995) 182 CLR 1;
R v Falconer (1990) 171 CLR 30;
Royall v The Queen (1991) 172 CLR 378;
R v Engert (1995) 84 A Crim R 67;
Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638;
CES & Anor v Superclinics (1995) 38 NSWLR 47;
Nader v Urban Transit Authority (1985) 2 NSWLR 501;
Mount Isa Mines ltd v Pusey (1970) 125 CLR 383;
Naxakis v Western General Hospital [1999] HCA 22;
Leotta v Public Transport Commission (1976) 50 ALJR 666;
Smith v The Queen (1990) 64 ALJR 588;
Re Dawson [1966] 2 NSWLR 211;
Hourigan v Trustees Executors & Agency Co Ltd (1934) 51 CLR 619;
Hughes v Schofield [1975] 1 NSWLR 8;
Crago v McIntyre [1976] 1 NSWLR 729;
Neylon v Dickens [1987] 1 NZLR 402;
Nocton v Lord Ashburton [1914] AC 932;
Frank Perre v Apand Pty Ltd [199] HCA 36;
Caparo Industries PLC v Dickman [1990] 2 AC 605;
Osman v United Kingdom (ECtHR 28 October 1998, unreported);
Anns v Merton London Borough Council [1978] AC 728;
Jaensch v Coffey (1984) 155 CLR 549;
Hill v Van Erp (1997) 188 CLR 159;
Gala v Preston (1991) 172 CLR 243;
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241;
Bayley v Forde [1863] LR 2 QB 539;
McCallion v Dodd [1966] NZLR 710;
Rogers v Rawlings [1969] QdR 262;
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520;
Kondis v State Transport Authority (1984) 154 CLR 672;
Ramsay v Larsen (1964) 111 CLR 16;
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313;
Cekan v Haines (1990) 21 NSWLR 296;
Cook v Cook (1986) 162 CLR 376;
Bankstown Foundry pty Ltd v Braistina (1980) 160 CLR 301;
Wyong Shire Council v Shirt (1980) 146 CLR 40;
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506;
Chappel v Hart (1998) 72 ALJR 1344;
Environment Agency v Empress Car Co Ltd [1998] 2 WLR 350;
St George Club v Hines (1961) 35 ALJR 106;
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410;
State Rail Authority of New South Wales v Howell (NSWCA, 19 December 1996, unreported);
Kavanagh v Akhtar (1998) 45 NSWLR 588;
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500;DECISION: Verdict and judgment for the Defendants
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONABADEE J
THURSDAY 26 August 1999
10257/93 - Joy WILLIAMS v THE MINISTER, ABORIGINAL
LAND RIGHTS ACT 1983 & Anor
HEADNOTEThe plaintiff, the daughter of an Aboriginal woman and a father of Irish descent, was born out of wedlock in 1942. The plaintiff following her birth was placed on her mother’s application under the control of the Aborigines Welfare Board, a Board constituted under s 4(1) the Aborigines Protection Act 1909-1943 . The plaintiff was placed under the Board’s control pursuant to s 7(2) of the Act. She remained under its control until she turned 18. In accordance with its practice, for the benefit of the child, the plaintiff was placed by the Board with the United Aborigines Mission at its Aborigines Children’s Home at Bomaderry for the purposes of providing for her custody, maintenance, upbringing and care. At the age of four and a half years, the plaintiff, whilst still a ward, was transferred in 1947 to the Lutanda Children’s Home at Wentworth Falls, a home conducted by members of the Plymouth Brethren faith. There she was brought up, cared for and maintained, as a ward of the Board, between 1947 and 1960.
In 1993 the plaintiff commenced proceedings against the defendants claiming that she had developed a Borderline Personality Disorder (and substance abuse disorder) as the result of her childhood experiences. She further claimed that as a child she was denied bonding and attachment, had been a victim of maternal deprivation and further suffered a disorder of attachment.
The plaintiff alleged that her psychiatric injury was due to the default of the defendants. The plaintiff claimed damages for negligence, breach of fiduciary duty, breach of statutory duty and for trespass. The plaintiff sought to recover very substantial damages for her misfortunes, upbringing and her disturbed and unhappy life, as well as for her claimed psychiatric injury, harm, mental and emotional problems and difficulties. She also sought to recover exemplary and aggravatory damages.
Held
1. There was no duty of care, breach of duty or relevant causation established. The plaintiff’s action in negligence failed;
2. No trespass was established. No private action for breach of statutory duty was available;
3. Assuming a fiduciary relationship (not decided) there was no breach of fiduciary duty. In any event had a fiduciary duty or breach of fiduciary duty been established there would have been a basis for denying equitable compensation by reason of laches, prejudice or delay;
4. Any assessment of damages or equitable compensation was highly speculative, however, a “contingent” assessment of damages was appropriate in the circumstances;
5. There was no entitlement to exemplary or aggravatory damages in any contingent assessment.
---------------JUDGMENT
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONABADEE J
THURSDAY 26 August 1999
10257/93 - Joy WILLIAMS v THE MINISTER, ABORIGINAL
LAND RIGHTS ACT, 1983 & Anor1 HIS HONOUR: The plaintiff, Joy Williams by her tutor, by her Further Amended Statement of Claim sues the Minister responsible for the Aboriginal Land Rights Act 1983 (“the first defendant”) and the State of New South Wales (“the second defendant”). She claims damages from them. Further or alternatively, she claims equitable compensation. 2 A tutor was appointed shortly before the trial on 12 April 1999. The plaintiff in March had been admitted to hospital with a clinical diagnosis of psychosis and there is no dispute that the plaintiff is and has been unable to give oral evidence at the trial. 3 The first defendant is sued upon the basis, by statute, that the Minister is the legal entity against whom claims made against the Aborigines Welfare Board (“AWB” or “Board”) must be brought. The Board was constituted under s 4 of the Aborigines Protection Act 1909-1943 (“the Act”). The second defendant, it is said, is liable to be sued pursuant to s 5 of the Crown Proceedings Act 1988 and is said to be vicariously liable for the acts of the first defendant and the Board. 4 The defendants (appearing by the same counsel) have submitted that the second defendant is not personally liable because the express provisions of s 5 of the Crown Proceedings Act 1988 exclude claims or demands against a statutory corporation representing the Crown and that the first defendant is such a statutory corporation representing the Crown: Aboriginal Land Rights Act 1983 s 50. It also submitted that the second defendant is not vicariously liable for the acts of the first defendant and the AWB. In his written submissions in reply counsel for the plaintiff stated he did “not take issue with the submissions of the defendants in this regard”. It is appropriate to here record also that the case pleaded is a case against the AWB, and that no action is pleaded or alleged against the State of New South Wales in respect of any “activity” or breach or breaches of any duty involving the former Child Welfare Department of the Government of New South Wales. 5 Before turning to the pleadings its is important from inception to make clear that the case does not concern so called “Stolen Generation” issues. The plaintiff was not a member of the “Stolen Generation” as that expression is used: cf Cubillo v The Commonwealth of Australia (1999) FCA 518 (30 April 1999). So much will appear from the reasons herein.
INTRODUCTION
6 It is convenient to summarise the allegations made in the Further Amended Statement of Claim. That document is some nineteen (19) pages in length and contains numerous allegations of negligence and breach of duty. 7 The plaintiff alleges she was born on 13 September 1942 and that her mother was an Aboriginal. It is alleged that the AWB assumed the role of guardian and placed itself in loco parentis viz-a-viz the plaintiff “by taking the plaintiff from her natural mother and assuming custody of her. It is claimed that the AWB owed the plaintiff a duty of care including to supervise her upbringing; to monitor at regular intervals the care she was receiving; to interview the plaintiff regularly for purposes of assessing her well being; to investigate or inquire into allegations of maltreatment; to acquaint the plaintiff from time to time with details of her mother’s whereabouts; to take reasonable care to safeguard her mental and physical well-being. 8 Shortly after the plaintiff’s birth the plaintiff alleges that in the exercise of its powers under the Act (and particularly s 11B thereof), the AWB placed the plaintiff in the custody of the United Aborigines Mission (UAM) which placed the plaintiff in its Aboriginal Children’s Home at Bomaderry (NSW). 9 The plaintiff alleges that by “removing the plaintiff from her mother” the AWB breached its duty of care by failing to facilitate the bond between the mother and the plaintiff; removed the plaintiff in circumstances where the Board was not in a position to provide an adequate substitute for the plaintiff’s mother in the form of a caring adult who would be likely to “form a reciprocal attachment for the plaintiff and thereby ensure or promote her healthy psychological development”; failed to take precautions for the psychological well-being of the plaintiff and exposed her to a risk of psychological harm. It is also alleged that the AWB failed to take adequate steps to permit the plaintiff to remain with her mother. 10 It is also said that by placing the plaintiff at Bomaderry the AWB knew or ought to have known Bomaderry was an institution in which the plaintiff would have no or inadequate opportunity to form an attachment with a caring adult which was necessary for her psychological well-being; that the plaintiff would inevitably suffer from “maternal deprivation” which would require treatment and change of circumstances to reverse; and that Bomaderry was overcrowded so that formation of close emotional attachment between the plaintiff and a caring adult was unlikely to occur. 11 It is alleged that by requiring the plaintiff to remain at Bomaderry until the age of four years there were further breaches of duty in failing to provide a proper environment whereby the plaintiff could form a close emotional attachment to “one caring adult”; failing to acquaint itself with the then state of knowledge as to the hazards to a child of the plaintiff’s age of institutional life; and failing to restructure the institution to increase the likelihood of the plaintiff forming a close emotional attachment with at least one caring adult. 12 In April 1947 the plaintiff (then four and a half years old) was transferred to another home, “Lutanda” at Wentworth Falls by the AWB, which was allegedly done pursuant to s 11B of the Act or otherwise. (In her case I might add the plaintiff accepts that the transfer to Lutanda was not the subject of any allegation of negligence or lack of good faith). It is alleged that the AWB thereafter breached its duty in a number of respects. These include failing to inquire whether if the plaintiff resided at Lutanda, she would have contact with members of her family and members of the Aboriginal race; that the plaintiff would be properly looked after, and not be subjected to vilification, physical or mental cruelty or sexual abuse; failure to inquire whether the plaintiff would have the opportunity to form a reciprocal close emotional attachment with a caring adult; that the plaintiff’s psychological well being would be safely guarded by appropriate care in the form of attachment and inquire that Lutanda was sufficiently cognisant of psychological learning of the day to permit damage to the plaintiff by her removal from her mother to be identified and treated. 13 Alternatively, it is alleged that the Board, when it caused or permitted the plaintiff to be placed in the institution at Lutanda, knew or ought to have known of a number of matters including that Lutanda was a place likely to prejudice her psychological well-being because of the absence of any adequate opportunity for the plaintiff to form a close reciprocal attachment with a caring adult who would look after her; that Lutanda did not operate according to the known state of psychological learning of the day and was not in a position to recognise aspects of the plaintiff’s behaviour as childhood antecedents of an “attention-seeking disorder” which if not treated was likely to develop into a psychiatric disorder by the time the plaintiff reached late adolescence or adulthood. 14 It is alleged that at Lutanda the combination of the plaintiff’s relatively fair complexion and her Aboriginality carried with it certain risks including that she would not be informed of her Aboriginality; that at some stage her Aboriginality would be revealed to her by Lutanda staff; that there was a chance of her not being placed in a foster home; that she would be treated differently because of her Aboriginality; and that she was likely to deny her Aboriginality. In consequence of the above matters it is said that the plaintiff was likely to be deprived of the opportunity of forming close relationships with others and with aboriginals and more particularly with at least one caring adult who would “care for the plaintiff individually and promote the development of attachment and assist in the reversal of harm suffered by her removal from her mother at birth and institutionalisation at Bomaderry”. 15 By reason of the matters so claimed it is alleged that there was a serious risk that the plaintiff:
The Pleadings
16 It is alleged the AWB caused or permitted the plaintiff to remain at Lutanda until 1960. The following further breaches of duty were particularised in paragraph 11 of the further amended Statement of Claim in respect of the plaintiff’s time at Lutanda:
“(i) would develop a disorder in the development of attachment (if she had not already done so at Bomaderry; or
(ii) be subjected to aggravation of a disorder in the development of attachment, which had its onset at Bomaderry which if not adequately treated or reversed would render her susceptible to a serious personality disorder in adult life”.
17 At the trial the plaintiff alleged that there was a failure to take the plaintiff to a Child Guidance Clinic during her stay at Lutanda and that had such been done her childhood attachment disorder problem would have been reversed and addressed. 18 The plaintiff also alleges that the defendant owed a statutory duty under s 7(1)(c) of the Act to provide for her custody and maintenance and under s 7(1)(e) to exercise general supervision and care over all matters affecting her interests and welfare and to protect her against injustice, imposition and fraud. It is alleged that these statutory provisions were each breached. 19 The particulars in support of the common law counts are also relied upon as constituting allegations of breaches of the statutory duty. In addition, it is also asserted that the AWB failed to protect the plaintiff from injustice by placing her at Bomaderry and Lutanda in institutions which the AWB knew or ought to have known were inimical to her psychological well being because they were not conducive to the development of a close emotional attachment between the plaintiff and a caring adult and in removing the plaintiff from her mother when it had no legal justification to do so. Further, it is alleged there was a breach of statutory duty including placing her in institutions where in the case of Bomaderry psychological harm was likely to result but be undetected, and in the case of Lutanda physical abuse including sexual abuse was likely to be inflicted and unlikely to be detected by the AWB. 20 Further the AWB was alleged to have been in breach of duty by failing to visit the plaintiff or make inquiries about her whilst she was at Lutanda which visits or inquiry would have revealed that the plaintiff was subjected to vilification, physical and mental cruelty and sexual abuse. 21 Next the plaintiff relied upon a cause of action in trespass (wrongful or false imprisonment) based upon a claim of being taken from her mother in September 1942 until her discharge from Lutanda in 1960. 22 The plaintiff has also made a claim for equitable compensation for alleged breach of fiduciary duty in a number of respects. 23 The plaintiff claims damages, exemplary damages, aggravated damages and equitable compensation. 24 I now turn to the defendants’ defence. By its Further Amended Defence they denied negligence (including a denial of any duty of care, breach or causation). They denied trespass. They denied that an action for breach of statutory duty arose. They denied the existence of any fiduciary duty or breach thereof. Further or alternatively, in respect of the claim for breach of fiduciary duty they raised further “defence(s)” of laches and prejudice. These defences were pleaded to an action for breach of fiduciary duty but were not (and could not be pleaded) in respect of the common law causes of action.
“(a) failed to supervise the plaintiff’s upbringing adequately or at all;
(b) failed to monitor at regular intervals or at all the care which the plaintiff was receiving at Lutanda; [in the written submissions (p 81) the plaintiff argued that for the AWB to have discharged its duty of care it would have visited the plaintiff at regular intervals “at least once a year and more frequently in earlier years”].
(c) failed to inquire as to, or investigate, any allegations of maltreatment of the plaintiff;
(d) failed to interview the plaintiff at any time for the purpose of assessing her well-being or for any other purpose;
(e) failed to provide any supervision which was sufficient to detect the vilification, physical and emotional maltreatment, the physical and mental cruelty and the sexual abuse to which the plaintiff was subjected whilst at Lutanda;
(f) failed to remove the plaintiff from Lutanda;
(g) took no steps, or insufficient steps, to ensure that persons having the care of the plaintiff were not guilty of conduct which was proscribed by the Act;
(h) failed to acquaint the plaintiff’s mother with details of the plaintiff’s whereabouts notwithstanding a specific request contained in a letter from the plaintiff’s mother to the Board dated 10 December 1956;
(i) failed to acquaint the plaintiff with details of her mother’s whereabouts;
(j) failed to ensure that the plaintiff’s circumstances were reasonably adequate for her health, physical and mental well-being, maintenance, education and advancement in life; and
(k) breached each of the statutory duties which it owed to the plaintiff which are particularised in paragraph 13(a)-(c) below.”
25 As will be seen from the above, the case does not involve what might perhaps be described as a specific single identifiable act or omission occurring at a particular time and constituting, inter alia, negligence. No specific incident, happening or event in the history from 1942 to 1960 is relied upon as giving rise to the plaintiff’s claimed psychiatric or psychological conditions. Nor is there any identifiable single casual act of negligence alleged. The conduct (essentially “omission” conduct) relied upon to constitute negligence is said to have generally been of an ongoing nature throughout the period referred to. 26 The plaintiff’s primary case (and which, for reasons which will appear, I accept) is that the plaintiff was admitted to the control of the AWB on the mother’s application in accordance with s 7(2) of the Aborigines Protection Act 1909 (the Act) as amended. As will appear from this judgment I have found that the plaintiff’s mother for reasons no doubt valid to herself, applied to the Board to take control of her child between the time of her birth on 13 September 1942 and the child’s transfer to the United Aboriginal Mission Children’s Home at Bomaderry, New South Wales on 13 October 1942. My finding is that the AWB considered the mother’s application to give up control of the plaintiff to its control, and having done so, admitted the child to its control. I find that there was not any removal by the Board to the plaintiff, in the sense of taking the child against the will of the mother. The plaintiff was taken into the AWB’s control because the mother did not want the child, could not keep the child and asked the AWB to take control of her: see s 7(2). 27 The primary submission made by Mr Hutley SC for the plaintiff, was that there was no unlawful removal and detention or taking of the plaintiff at any time and that there was no factual removal of the plaintiff in the sense of her having been “stolen”. If there was a removal, or taking it was pursuant to the mother’s request for the Board to do so. She applied or asked the Board to take control of the plaintiff and the Board acceded to her application. It is right and proper that any misconceptions, or potential misconceptions about the nature of the plaintiff’s case should be removed early in my reasons for judgment. The following passages appear in the transcript (at 498):
The Nature of the Case
28 The following exchange later took place between the plaintiff’s junior counsel and myself:
“ HIS HONOUR: Mr Hutley, I want to know whether at the end of the day you will be suggesting that this child is somehow or other to be described emotively or otherwise as being a stolen generation child.
HUTLEY: Your Honour will not hear me use that terminology at all because I don’t think it is of assistance in a case of this variety. What we say is, and this seems to be the law, it’s my learned friend that had the child under its control from its birth, or shortly after its birth, it’s for them to prove it was legal”.
29 Although, as will be seen the plaintiff in her Further Amended Statement of Claim has spoken in terms of the AWB taking the plaintiff from her natural mother, that claim must be understood to involve a taking at the mother’s request and not in the sense of the plaintiff being “stolen”. Further, for example, the history given by the plaintiff to Dr Twomey (13 April 1999) that soon after her first child’s birth, that that child was taken from her (“the third of the stolen generation”) is equally not correct, despite its assertion in the history to him. 30 I find as my reasons shall make clear that the plaintiff following her birth then became a ward of the AWB within the meaning of s 3 of the Act and thereafter until the age of 18 the plaintiff remained a ward of the AWB and under its control. I further find as a fact that the plaintiff’s mother at no time between 1942 and 1960 made application to the AWB or, otherwise sought to have the plaintiff released from the AWB’s control, or sought her restoration to her care within the meaning of s 11D(1)(h) of the Act, nor was any discharge of the plaintiff sought at any time pursuant to s 11D(1)(i) of the Act. The reasons for such will appear later. 31 It is appropriate if I immediately record here that a number of conclusions of fact urged by the defendants (written submissions 111) were conceded to be appropriate by the plaintiff (written submissions in Reply at 51). 32 Firstly it was accepted that the plaintiff’s placement at Bomaderry and/or control or custody by the AWB was lawful, being with the consent of and at request of her mother. Second, the plaintiff’s “legal guardian” was at all times her mother. Third, the transfer to Lutanda was with the consent of the mother. Fourth, transfer was in accordance with the Board’s statutory duty. Fifth, transfer was for the purpose of giving the plaintiff a better chance in life at Bomaderry. It is appropriate if I also record the plaintiff made no allegations that her transfer to Lutanda was improper or negligent. I make the above findings.
“ HIS HONOUR: It is correct to say that [Mr Hutley] does not maintain that this particular plaintiff, to use the expression, is a member of the stolen generation, whatever that expression might mean: Is that correct?
ADAMSON: Quite, your Honour. The plaintiff’s primary case is that the plaintiff’s mother made an application to the Board under s 7(2).
HIS HONOUR: It would be inconsistent.
ADAMSON: Quite.
HIS HONOUR: Because the plaintiff’s case is that her mother surrendered control of the child to the Board.
ADAMSON: Yes, pursuant to an application.
HIS HONOUR: And in fact made an application under s 7(2) and if indeed she surrendered the child to the Board, or asked the Board to take control of the child, then that is her application.
ADAMSON: Quite, your Honour that is the plaintiff’s primary case.
HIS HONOUR: And in fact it is done at her behest.
ADAMSON: At the plaintiff’s mother’s request, quite, your Honour.
HIS HONOUR: Am I also correct in saying that the plaintiff’s case is not that the Board in any way sought to remove the child, but that the mother requested the Board to take control of the child, for reasons best known to the mother?
ADAMSON: Yes, that’s right and it appears that that occurred on or about 12 October 1942.”
33 It is appropriate if I here mention several other matters. The plaintiff in her Further Amended Statement of Claim has made reference to a disorder in the development of attachment and to her suffering from a Borderline Personality Disorder (and an associated substance abuse disorder as well). It is perhaps convenient if I deal with these suggested disorders. They will be dealt with again in a more extensive way in the judgment. 34 In his report of October 1991 Dr Waters said (at p 8) that Borderline Personality Disorder:
Borderline Personality Disorder and Attachment Disorder
35 Further, he said that Borderline Personality Disorder was a disorder of attachment usually happening when a child is young, around three to four years. He said that Borderline Personality Disorder was rarely constitutional. It could not be technically diagnosed before the age of 18 in its proper form, but its antecedents were usually evident in adolescence and even in early childhood. 36 In the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (“DSM-IVTM) (1994) published by the American Psychiatric Association (tendered by the plaintiff although an earlier version was referred to by Dr Waters in his report) there is a discussion of Borderline Personality Disorder. It is appropriate to say that DSM-IVTM (the first edition was published in 1952) is a text that classifies diagnoses and categories of mental disorders and is used by psychiatrists in this country. The DSM appears to divide mental disorders into categories, and relevantly into types of personality disorders based on criteria with certain defining features. Both parties referred to, and relied upon DSM-IVTM in the presentation of their cases. The DSM on foot as at 1952 to 1968 was not referred to or relied upon nor were portions of it tendered in the plaintiff’s case. In DSM-IVTM the matter of Borderline Personality Disorder is discussed at 650. Underneath the heading “Borderline Personality Disorder” and the sub-heading “Diagnostic Features” the following appears:
“… appears to be due to a fundamental failure in parenting. Typically adults who develop borderline personality disorder have sustained psychological abuse often, but not necessarily, associated with physical and sexual abuse and neglect. The typical pattern of parenting recalled is of rejection, terrorising, neglect, ignoring (etc), most of which are reported by Ms Williams. These patterns fundamentally distort a person’s capacity to have relationships and to have a stable personality, and often also lead to substance abuse and self destructive behaviour. In addition such individuals are ill-equipped to parent and very often provide just the type of parenting to their children which Ms Williams has provided for her two older children ….
In my view Ms Williams’ bond of attachment to a primary caretaker living in a congruent cultural setting was never established”.
37 The diagnostic criteria are said to be nine in number with diagnosis based upon the presence of five or more of such criteria. The impairment from the disorder is said to be greatest in the young adult years and gradually wanes with advancing age. In their thirties and forties the majority of individuals with the disorder attain greater stability in their relationships and vocational functioning. It is stated that physical and sexual abuse, neglect, hostile conflict, and early parental loss or separation are more common in the childhood histories of those with Borderline Personality Disorder. 38 The text discusses the matter of differential diagnosis. Similar but alternate diagnoses to Borderline Personality Disorder (BPD) are:
“The essential feature of Borderline Personality Disorder is a pervasive pattern of instability of interpersonal relationships, self image and affects, and marked impulsivity that begins by early adulthood and is present in a variety of contexts”.
39 BPD must be further distinguished from:
1. Histrionic Personality Disorder.
2. Schizotypal Personality Disorder
3. Paranoid Personality Disorder
4. Narcissistic Personality Disorder
5. Antisocial Personality Disorder
6. Dependent Personality Disorder
40 Borderline Personality Disorder may be confused with a number of other personality disorders. This is usually because these other disorders share some common characteristic features particularly noting this in relation to Anti-Social Personality Disorder. I do not understand that a particular diagnosis necessarily implies a specific level of impairment or disability on the part of a sufferer or that particular behaviour and actions on any particular occasion ought necessarily to be attributed to that disorder. The circumstances surrounding such individual behaviour, or control on any instant occasion still needs to be examined. Additional factual information is required including as to functional activities at the relevant time. Nor does diagnosis carry any implications as to its necessary aetiology. 41 The DSM-IVTM states that Borderline Personality Disorder is diagnosed predominantly (about 75%) in females. The pattern of behaviour has been seen in many different settings around the world. Under the heading “Prevalence” the following passage appears (at 652):
Personality change due to a General Medical Condition
Symptoms that may develop in association with chronic substance use.
42 It is not suggested that the Australian experience would be statistically different to that in the United States. 43 The importance of this passage is that institutional care is not identified as the one relevant factor in the 2% of the general population figure. The percentage does not distinguish between those who suffer from it, having been brought upon in a parent’s home, adopted parent’s home, foster parent’s or in an institution or home (State or charitable or religious). Second, despite the learning on the matter in 1950's the disorder has not been eliminated perhaps suggesting it cannot be, or, that the risk of suffering from it, cannot be removed. Third, the fact that it cannot be removed or eliminated gives rise to important questions in relation to duty and breach, and whether negligence can be found, or should be. Fourth, as DSM-IVTM makes clear, Borderline Personality Disorder is about five times more common among first degree biological relatives of those with the disorder than in the general population. Fifth, as Dr Waters admitted, the Kenmore Hospital records reveal that the plaintiff’s mother had a very long history of alcoholism (for most of her life was a user of alcohol) and (T 118-119) and was an alcoholic. Against such background, according to Dr Waters, had the plaintiff remained with her mother when the mother was an alcoholic at the time the plaintiff was young, the plaintiff could in any event have developed the Borderline Personality Disorder he “diagnosed”. The important point is that the alleged diagnosis is not one dependant on a child being brought up in an institution. 44 As to the category Borderline Personality Disorder, there is the view of Dr Ellard that it is a spectrum, having taken years to achieve its “present status”. He said it did not have that status in the “1940’s, 1950’s or even the 1960’s”. Dr Ellard also made clear that not everyone subjected to a disadvantages early environment would develop a Borderline Personality Disorder. I would add that DSM-IVTM does not in terms point in terms to the need for an antecedent condition of disorder of attachment as a condition for its occurrence. According to Dr Ellard some persons without early deprivation will become borderline with many “borderlines” having no history of early deprivation. 45 The plaintiff alleges that she also suffered from the childhood antecedents of personality disorder (also termed “attachment disorder”) which were reversible and Borderline Personality Disorder. The plaintiff particularly relies upon an expert, Dr Katz, to show that there was a connection between lack of attachment and personality disorders. The lack of bond of attachment (with the mother) was said to be known to be a very common condition of people who develop personality disorder. Indeed, it is part of the plaintiff’s case. The plaintiff alleges that by early adolescence if not before, she was solitary, bitter, sulking, resentful, negative and sad and that had the AWB been told of these matters they would have sent the plaintiff to a Child Guidance Clinic for assessment and treatment. They allege that the plaintiff’s disorder would have been reversible had she been given timely treatment by a child psychiatrist (who generally worked in one of the few clinics) or other child mental health professionals. In support of her case both Dr Katz (retired child psychiatrist) and another expert, Mrs Bull, (a retired social worker) gave evidence. Their evidence is that the reversal of attachment disorder would be facilitated if there is a loving person with whom the unattached child can form a close attachment. 46 In his evidence Dr Water said that although the plaintiff no longer met the diagnostic criteria for Borderline Personality Disorder, she continues to abuse substances. She claims that the Borderline Personality Disorder and associated substance abuse has compromised her life in all respects including an ability to form relationships and to look after herself. Indeed, her claim is that the abuse of substances was a consequence of the Borderline Personality Disorder, and that many of her current problems are due to substance abuse. Dr Waters considered that the plaintiff was a recovered alcoholic. He accepted her mother had been an alcoholic. When asked whether alcoholism was not in part hereditary, he replied (123) that it was a controversial subject, but that there was, in a fairly complex way, an inherited component to alcoholism. 47 Dr Waters accepted that there was a distinction between Borderline Personality Disorder and psychosis (a biological condition), that the plaintiff as at the time of hearing had a psychosis, and that it was possible that the plaintiff even possibly had a genetic predisposition to psychosis. 48 The matter of “the human phenomenon attachment” (or bonding) and attachment disorder has been raised as an important issue in this case. It is a matter concerned very much with mother-infant interaction. This is a matter that has been explored in the area of emotional research and development of children. It is a matter arising in the field of human emotions in human relationships. The quality of the bond (“the attachment process”) between infant and care giver is, so it is claimed, instrumental in the development of personality and provides the foundation for healthy psychological functioning. 49 Dr Katz spoke of the need for the development of close emotional relationships with a caring adult. He said that such would probably have been sufficient to prevent childhood antecedents of disorder in the development of attachment from developing into a Borderline Personality Disorder. He said that attention seeking disorder (from which she was allegedly suffering in 1948) was a disorder in the development of attachment. It reflects the lack of availability of an appropriate person with whom the child can form an attachment. 50 Dr Katz also said that because the plaintiff was “deprived” of contact with her mother (usually the prime carer with whom the reciprocal bond is formed), she was, in the absence of a substitute mother, at grave risk from the time of birth, of suffering from a disorder in the development of attachment. The institutional environment at Bomaderry he said, was likely to aggravate the risk in so far as she was suffering from disorder in development of attachment at some time between removal from mother and arrival at Lutanda and because there was no effective facilitation of the formation of attachment at Bomaderry. 51 The instant case raises issues of personal and interpersonal relations concerning interpersonal experiences generally between the infant and the mother - that is, interaction between the two. It concerns among other things the interactive creation of the attachment bond of effective communication between primary care giver and infant - an event central to human emotional development. If a mother-infant interaction is successful it is suggested that there is the foundation for a healthy personality structure and healthy psychological functioning. Dr Waters (October 1991) referred to the plaintiff having been placed in an environment where no primary bond of attachment to a primary care giver was established and in an environment where she did not have the opportunity to form new stable, caring and developmentally appropriate attachments.
“The preponderance of Borderline Personality Disorder is estimated to be about 2% of the general population, about 10% among individuals seen in out-patient mental-health clinics and about 20% among psychiatric in-patients. It ranges from 30% to 60% among clinical populations with Personality Disorders.”
52 In 1948 in response to concerns about the problems and needs of homeless children in post-war Europe, an important project looking at the “mother-infant” bonding process, was commissioned by the World Health Organisation. Dr John Bowlby, a British Psychologist was inter alia, asked to undertake an assessment of mother and infant behaviour. Dr Bowlby’s work (1951) Maternal Care and Mental Health (Geneva World Health Organisation), and his development of what appears to have become known as the attachment theory heavily impacted upon research into mother-infant interactions. His report was tendered in the plaintiff’s case, and is, inter alia, relied upon. 53 As I understand his views, if early interaction is successful, critical foundation stones of personality structure are laid down. The mother helps the baby attach and learn to recognise emotions and their vicissitudes. Early infant experiences or lack thereof may lead to insecure attachment formation resulting in personality deficits later manifesting themselves in different ways. 54 The long term consequences of inadequate attachment it was claimed may lead to or include personality disorder. The plaintiff’s case is, inter alia, built upon the views of Dr Bowlby in his 1951 report. 55 In order that the plaintiff’s allegations can be further understood, (and indeed the issues in this case also) it is appropriate if I now quote somewhat extensively from Dr Bowlby’s report. 56 I quote in full from pages 11 and 12 of his report under the heading “Some Origins of Mental Ill-Health”:
Dr Bowlby’s Views in 1951-1952
57 What neither Dr Bowlby, nor the evidence in the case addressed, is how one can quantify or measure or specify the required scope or content of maternal care required (in “advance” or “at all”) in a particular relationship between mother and child, and which will avoid the risk of any Borderline Personality Disorder or any personality disorder later developing. Whilst laying down views as to the need for “a warm intimate and continued relationship” in which both find satisfaction and enjoyment, such is left unspecified in terms of quantity, or quality. It is difficult to see scope for its enforcement or implementation in human relationships. How maternal deprivation can be necessarily avoided, how maternal warmth and intimacy can be enforced or compelled is not clear, since a child may even be deprived if living at home with a natural mother (or permanent mother substitute) who is unable or unwilling to give “the loving care small children need”, or the child is unable to find satisfaction or enjoyment in the intimate relationship. 58 Before leaving Dr Bowlby’s WHO report it is appropriate if I refer to several other points made by him.
“Among the most significant developments in psychiatry during the past quarter of a century has been the steady growth of evidence that the quality of the parental care which a child receives in his earliest years is of vital importance for his future mental health. Such evidence came first from the psycho-analytic treatment of adults and then from that of children. It has been greatly amplified during the past decade by information gathered by psychologists and psychiatrists working in child guidance and child care - two fields affording unrivalled opportunities for first-hand observation both of the developing child and of his milieu.
Largely as a result of this new knowledge, there is today a high level of agreement among child-guidance workers in Europe and America on certain central concepts. Their approach to cases, their investigations, their diagnostic criteria, and their therapeutic aims are the same. Above all, the theory of ethology on which their work is founded is the same.
The basic principles of this theory of the origins of mental health and mental illness will be discussed more fully later. For the moment it is sufficient to say that what is believed to be essential for mental health is that the infant and young child should experience a warm, intimate, and continuous relationship with his mother (or permanent mother-substitute) in which both find satisfaction and enjoyment . [my emphasis]. Given this relationship, the emotions of anxiety and guilt, which in excess characterise mental ill-health, will develop in a moderate and organised way. When this happens, the child’s characteristic and contradictory demands, on the one hand for unlimited love from his parents and on the other for revenge upon them when he feels that they do not love him enough, will likewise remain of moderate strength and become amenable to the control of his gradually developing personality. It is this complex, rich, and rewarding relationship with the mother in the early years, varied in countless ways by relations with the father and with siblings, that child psychiatrists and many others now believe to underlie the development of character and of mental health. [my emphasis]
A state of affairs in which the child does not have this relationship is termed ‘maternal deprivation’. This is a general term covering a number of different situations. Thus, a child is deprived even though living at home if his mother (or permanent mother-substitute) is unable to give him the loving care small children need. Again, a child is deprived if for any reason he is removed from his mother’s care. This deprivation will be relatively mild if he is then looked after by someone whom he has already learned to know and trust, but may be considerable if the foster-mother, even though loving, is a stranger . All these arrangements, however, give the child some satisfaction and are therefore examples of partial deprivation. They stand in contrast to the almost complete deprivation which is still not uncommon in institutions, residential nurseries, and hospitals, where the child often has no one person who cares for him in a personal way and with whom he may feel secure . [my emphasis].
The ill-effects of deprivation vary with its degree. Partial deprivation brings in its train acute anxiety, excessive need for love, powerful feelings of revenge, and arising from these last, guilt and depression. These emotions and drives are too great for the immature means of control and organisation available to the young child (immature physiologically as well as psychologically). The consequent disturbance of psychic organisation then leads to a variety of responses, often repetitive and cumulative, the end products of which are symptoms of neurosis and instability of character. Complete deprivation, with which we shall be dealing principally in this report, has even more far reaching effects on character development and may entirely cripple the capacity to make relationships.
The evidence on which these views are based is largely clinical in origin. Immensely valuable though this evidence is, it is unfortunately neither systematic nor statistically controlled, and so has frequently met with scepticism from those not engaged in child psychiatry.
Investigators with a statistical bent have worked with the concept of the ‘broken home’ and a number of studies have demonstrated a relation between maladjustment and this situation.
But though these studies have been of value in amplifying and confirming clinical evidence of the far-reaching importance of the child’s early experience in his home, the concept of the broken home is scientifically unsatisfactory and should be abandoned. It includes too many heterogeneous conditions having very different psychological effects.
In place of the concept of the broken home we need to put the concept of the disturbed parent-child relationship which is frequently, but not necessarily, associated with it .” [my emphasis]
59 By way of aside even in a contemporary society (whose views are not relevant to the determination of the issues), many ordinary citizens (not experts in behavioural science) could well disagree with these (Dr Bowlby) views. It is not for me to comment upon the current acceptability of such views by mothers, fathers and society in Australia in 1999. Nevertheless, Dr Bowlby’s views are relied upon (albeit expressed in a somewhat general ill-defined way) by the plaintiff to support a case of negligence against the defendants for events long since passed, occurring in the 1950’s.
2. Dr Bowlby considered that it was not necessary to detail father-child relationships in the report because and I quote “almost all the evidence concerns the child’s relationship to his mother, which is without doubt in ordinary circumstances by far his most important relationship during these years. It is she who feeds and cleans him, keeps him warm and clean, and comforts him. It is to his mother that he turns when in distress. In the young child’s eyes the father plays second fiddle and his value increases only as the child’s vulnerability to deprivation decreases. … While continued reference will be made to the mother-child relation, little will be said of the father-child relation, his value as the economic and emotional support of the mother will be assumed”. (p 13)
1. Anxieties arising from an unsatisfactory relationship in early childhood allegedly predispose children to respond in an anti-social way to later stresses (p 13).
60 This view perhaps suggests the impracticability of avoiding the situation in a case such as the present where group care was in effect in practical terms a no choice option and unavoidable.
3. Dr Bowlby considered that deprivation of mother love in early childhood could have far reaching effects on mental health and personality development of human beings. Thus when deprived of maternal care the child’s development is almost always retarded - physically, intellectually, emotionally and socially and that symptoms of physical and mental health may appear: (pp 15-16).4. Dr Bowlby was insistent throughout this report that the right place for the child “is his own home” (p 109). Neither foster home nor institutions can provide children with the security and affection which they need. For the child they are always makeshift (p 112).
5. Dr Bowlby said group care of infants and young children must always be unsatisfactory because of “the impossibility of providing mothering of an adequate and continuous kind but also because of the great difficulty of giving a number of toddlers the opportunity for active participation in the daily life of the group which is of utmost importance for their social and intellectual development” (p 133).
61 The plaintiff claims that in consequence of the defendant AWB’s breaches of duty she suffered psychiatric damage, psychological damage and physical injuries. These may be conveniently stated in terms of the amended Statement of Particulars pursuant to Part 33 Rule 8A filed on the eve of hearing on 14 April 1999. 62 The injuries are summarised as being both physical and psychological. The physical injuries include a fracture of the right wrist, fracture of the collarbone (construed by the plaintiff to be deliberate), lacerations, abrasions and contusions due to corporal punishment being inflicted; self mutilation in the form of self-inflicted cuts; forcible confinement; and acts of sexual assault. The psychological injuries were particularised:
Damages Claim
6. In his “conclusion” (at 157-158) Dr Bowlby referred to the lack of then recognition that “mother love in infancy and childhood was as important for mental health as are vitamins and proteins for physical health”. He also stated that the evidence in the report was at many points faulty, “many gaps remained unfilled and critical information often missing” (p 158).
63 The plaintiff alleges continuing disabilities including inability to form and maintain intimate relationships; inability to fulfil a parental role; compromised anger; poor self esteem characterised by feelings of ugliness and unworthiness of affection and attention of others; extreme guilt; severe anxiety; identity disturbance; terror at being left alone; depression; substance abuse; inability to work; inability to engage in activities requiring physical exercise due to physical deterioration consequent on substance abuse and anxiety which has manifested itself in arthritis, asthma, and emphysema; compromised ability to self care; propensity to psychosis due to substance abuse and stress; inability to partake in enjoyable activities. 64 The plaintiff submits that whilst the Borderline Personality Disorder could not have been diagnosed before the “age of 18”, nevertheless, the childhood manifestation of attachment disorder manifested themselves before age five to six and were identifiable. The plaintiff’s case is that the Borderline Personality Disorder did not occur or was not diagnosable until early adulthood (at T 727). Thus the claim for damages it is submitted runs from an early age. The conduct of the AWB it is said extends over a period between 1942 and 1960. In terms of both liability and damages, this case involves investigation of events that have occurred during that period starting over 50 years ago. 65 These matters will be looked at in greater detail when considering the matter of damages which it was agreed I should consider, even were I to find the defendants not liable. 66 The claim that the plaintiff makes is a very large one. I make this observation because that clearly appears to be the situation. In her submissions on damages the plaintiff has submitted that the total damages that should be awarded in respect of the common law counts should be in the order of $1.7 million to $2.2 million. This is apart from the claims for general damages, interest and for aggravated or exemplary damages. The case for an aggravated or exemplary award is put inter alia, upon the basis that the plaintiff’s “life has been impoverished not by a casual act of negligence on the part of an ephemeral tortfeasor but by a deplorable failure by a statutory body which held itself out as her guardian to have regard for her welfare for well over a decade when she was utterly unable to protect her interests”. Further, it is submitted that the Board’s conduct became “so neglectful, so dismissive of the plaintiff’s welfare and so contumelious as the years passed and the plaintiff deteriorated that an award of aggravated or exemplary damages is warranted”. The plaintiff’s claim for damages is novel in many respects as will be seen when I turn to deal with it in detail, as I said I would irrespective of my decision on liability. 67 Further, or alternatively, equitable compensation is sought to be recovered for breach of fiduciary duty. The plaintiff conceded that there is no material difference between the content of the duty of common law and the fiduciary duties owed by the AWB to the plaintiff. Further in her reply, the plaintiff also has submitted that Equity would follow the law in quantifying equitable compensation by the same measures as are used in the assessment of common law damages. Next, there was no submission that the appropriate time for assessing damages was complicated by confusion or inconsistency surrounding the distinction between common law damages and equitable damages or compensation; cf Ronnoc Finance v Spectrum Network Systems (1998) 45 NSWLR 624 at 630-631. Mr Hutley also accepted that on the present state of the law, the better view was that, were equitable compensation to be awarded, there could not be included in any sum for equitable compensation any amount for aggravated or exemplary damages. That said he sought to reserve his position. I consider that he is correct in his view and his position is protected in the event that this case goes on appeal.
“(a) Maternal deprivation following removal from mother and failure to provide substitute which initiated disorder in development of attachment;
(b) Institutionalisation which caused or exacerbated disorder in development of attachment;
(c) Disorder in the development of attachment which manifested itself through childhood and adolescence in the form of attention-seeking behaviour and acts of self-mutilation;
(d) Borderline personality disorder, characterised by each of the following:
(i) frantic attempts to avoid real or imagined abandonment;
(ii) a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation;
(iii) identity disturbance; marked and persistently unstable self image or sense of self;
(iv) impulsivity in areas that are potentially self-damaging (sex and substance abuse);
(v) recurrent self-mutilating behaviour;
(vi) affective instability due to marked reactivity of mood (eg. intense episodic dysphoria, irritability, or anxiety);
(vii) chronic feelings of emptiness;
(viii) inappropriate, intense anger or difficulty controlling anger (frequent displays of temper, constant anger);
(ix) transient, stress-related paranoid ideation or severe dissociative symptoms;
(e) concealment of the plaintiff’s racial identity;
(f) concealment of the plaintiff’s antecedents and in particular concealment of the identity of the plaintiff’s mother and the fact that she was still alive and that at least from December 1956 wished to see the plaintiff.”
68 The original action was commenced by statement of claim in April 1993. The plaintiff in 1993 also filed a notice of motion seeking an order under the Limitation Act 1969 (s 60G(2)) to extend the period within which she could bring proceedings against the first and second defendants. Studdert J in a judgment dated 25 August 1993 refused the notice of motion. The Court of Appeal by majority (Kirby P and Priestley JA with Powell JA dissenting), allowed the appeal. The Court of Appeal’s decision is reported in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497. I will hereafter refer to that decision as Williams [No 1]. 69 Again as a matter of historical fact, it is appropriate to mention that the statement of claim has been amended on two occasions including on the eve of the hearing. There is now a count for breach of statutory duty. Further the particulars of breach of duty in her Further Amended Statement of Claim are now more comprehensive and extensive than originally pleaded. 70 It has not been argued that at this trial I am bound by any legal views contained in the Court of Appeal judgment in Williams [No 1] As Kirby P (as he then was) said, the “many interesting and difficult points in law are much better resolved when the law can be applied to the facts which Ms Williams ultimately proves at the trial”. 71 It is not unimportant to also mention that the only matter being determined in Williams [No 1] was whether in effect the action should go to trial. As his Honour also observed (at 515):
History of Proceedings
72 I make no apology for the length of this judgment. In writing extensively I have done so deliberately. I am conscious that my judgment will be read not merely by the parties, the judges and the legal profession. I am conscious of the fact that it is also perhaps a social document. I am particularly conscious of the sensitive, indeed, controversial nature of the issues and that there are groups in the community that will be interested in this judgment.
“She (Ms Williams) should have her chance to prove her case. She might succeed. She might fail. It will then have been determined as our system of law provides to all Australians - Aboriginal and non-Aboriginal - according to law, in open court and on its merits”.
73 The plaintiff has been given every chance to prove her case in court. The case lasted almost a month, commencing on 19 April 1999 and concluding on 14 May 1999. But, for the efficiency of counsel (in a case where evidence was missing or not available), and their co-operation, the trial would have lasted much longer. Indeed it may have been a trial of indefinite duration. So much appears from the mode and manner of presentation of the case and by the presentation of considerable oral and written materials. There has been a high level of thorough preparation both in respect of the issue of liability and damages. There can be no doubt that considerable human and financial resources have gone into the preparation and trial of the action by the parties. 74 There are almost 1,000 pages of transcript. Numerous affidavits have been read in the proceedings. Many witnesses both lay and expert have been called. A vast amount of documentary evidence (many volumes) has been tendered on many different issues. There are over 350 pages of submissions. 75 Having regard to the issues raised, their novelty and that the present action is perceived to be some sort of “test case” as well as the fact that the matter is likely to go on appeal, whilst applying the laws of evidence, I have sought not to be unduly technical in respect of my rulings on evidence. This too accords with the approach adopted by both parties. Further, the case concerns matters arising from events occurring between 1942 and 1960 with “proof” of matters complicated by the natural effluxion of time. The rules of evidence whilst they have been applied, such was done so with tolerance and with some degree of permissible flexibility. It seems appropriate in the circumstances that an appellate court should have the full benefit of the evidence tendered and sought to be tendered. Both parties have been given every opportunity to put before me available evidence. 76 The trial of the instant action has been a difficult one. There is the problem of having in the present time to address issues in the context of social, moral and cultural standards of a different Australia with respect to events occurring so long ago in its past history. 77 In that context, it is appropriate for me to observe that the language of this judgment reflects the language of the evidence. Both parties accept that this must be so, even though, it is but stating the obvious. Thus Mr Hutley (T 23) accepted that at the time the plaintiff was born her mother was unmarried and that the plaintiff was accordingly “illegitimate”. Additionally, there are references to certain persons being “fair-skinned”, to people being “white in appearance” and to people being “half-castes”. That is an example of language, reflective of the times and to be found in the evidence. The point I make is that in writing this judgment I acknowledge that some of the language used would not be regarded as appropriate in contemporary Australian society. Next, it is appropriate to remember that the court does not give effect to its own moral standards or values in deciding the case. It has no personal views of its own to carry out, or implement. The court executes the law, its personal views or notions are irrelevant and are not to be set above the law. Indeed, as the judge my role is a strict legal one, that is to decide the law, decide the facts, apply the law to the facts and give a true decision. 78 Further on the issue of damages, in examining in close detail the plaintiff’s life and evidence in relation to it, I should similarly record that I am not involved in any moral judgment. Such is totally irrelevant to the issues. The point to be made is that the plaintiff has brought the action, she claims damages including for her life’s events and misfortunes and how they have affected her. These issues have been raised by her and hence need to be examined and scrutinised by the court as part of its consideration of her case. As it is, the plaintiff who makes allegations, she must prove them. It is the plaintiff who has opened up for necessary scrutiny her life and all its various incidents. They are to be therefore subjected to examination and scrutiny. 79 As has been said, the trial has been complicated by the fact that one is dealing with events that occurred so long ago complicated by missing evidence (oral and documentary), and by the unavailability of some clearly relevant witnesses who are deceased, or incapacitated, or unable to attend to give evidence. It is appropriate to observe that long delays or even prejudice associated with such provides no defence to the causes of action pleaded at common law. That said, delay and prejudice flowing from such, and laches are matters relevant to whether equitable relief can or should be given in the event that the plaintiff were to establish that a cause of action for breach of fiduciary duty was available, and breach has been established. The equitable “defences” of laches, prejudice and delay may deny an entitlement of equitable compensatory relief. These matters do not defeat the common law causes of action for negligence or breach of statutory duty if established. The courts have saved from the imposition of limitation provisions, complaints of breach of fiduciary duty: see Williams [No 1]; Maguire v Makaronis (1997) 188 CLR 449 at 463; see also the discussion by Justice Gummow writing extra judicially in “Compensation for Breach of Fiduciary Duty” in Youdans (ed) Equity Fiduciaries and Trusts (1989) at 75. A claim for breach of fiduciary duty may be subject to the equitable doctrine of laches; cf Tito v Waddell (No 2) [1977] Ch 106 at 250-251. 80 Mr Hutley whilst accepting that in respect of the fiduciary duty cause of action (if established), I could decline to give equitable relief based on a defence of laches, submitted that no relevant prejudice had been identified and that delay of itself was insufficient to establish a defence of laches (see T 782). It will only be necessary to thus address issues of laches, delay and prejudice in respect of the cause of action based on breach of fiduciary duty: cf Orr v Ford (1989) 167 CLR 316; Fitzgerald v Masters (1956) 95 CLR 420 at 433-434. There has been substantial delay and its effect on any equitable cause of action such as the present I regard as significant and considerable. The equitable cause of action for breach of fiduciary duty, will if available, be decided on less evidence than was available at the time that cause of action arose: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 81 In my view whilst a plaintiff may be able to avoid limitation problems at common law by alleging a breach of fiduciary duty based upon the same facts or circumstances relied upon to support common law counts, he/she cannot avoid the “defence” of laches or the consequences of delay (and prejudice) being separately raised in respect of the equitable cause of action for breach of fiduciary duty. Thus in my opinion where in a case such as the present, and assuming that there be an equitable cause of action available generally based on the same or similar facts, or particulars, relied upon to support the common law counts, there is a strong case for amending the Limitation Act so as to make it apply not only to the common law counts but to the equitable cause of action as well. I believe such would address what appears to be an anomaly. Of course, were I to conclude as I have for reasons to be given, that there is no cause of action available for breach of fiduciary duty then there would be no need for legislative change. That said, an appellate court might hold a different view to that held by me. 82 Next I wish to mention the matter of evidence. I am deeply conscious when weighing the evidence that witnesses have been giving evidence of events that occurred many decades ago. In some cases the witnesses were children or young persons at the time the events they give evidence in relation to occurred. In other cases, the witnesses were mature adults. Much has occurred in their lives since the 1950’s. They have been subjected to life’s experiences and education in the interim. It has been said that human evidence shares the frailty of those who give it. It is subject to many cross currents such as partiality prejudice, self interest and above all imagination and inaccuracies. These are matters upon which the tribunal of fact helped by cross-examination must do their best: Toohey v Metropolitan Police Commissioner [1965] AC 595 per Lord Pearce at 608-9. I bear these matters in mind in assessing and evaluating the witnesses and the evidence. 83 This is a case where, as I have said, with the effluxion of time there are not only missing or dead witnesses, but some of the witnesses have filed affidavits but have been unable to give evidence: see eg Mrs Reid, Mrs Talbot and Mr Sattler. There was no evidence from the plaintiff’s mother who the plaintiff met in 1973 and with whom she later lived. There is evidence that she was alive and in hospital in 1989. In making this observation I am not drawing inferences adverse or otherwise. I merely record the situation as one of fact. In this I have been very much left to infer from the evidence, the circumstances under which the plaintiff came under the control of the AWB, and even in some respects the circumstances relating to her transfer to Lutanda, as well as in respect of other matters. 84 It is common ground that the records at Lutanda, after the death of its former superintendent, have been destroyed. There are missing records or a paucity of material from the Crown Street Women’s Hospital (where the plaintiff was born) and from the Aboriginal Children’s Home at Bomaderry where the plaintiff lived from 1942 to 1947. There are no records from Hornsby Hospital or Hornsby High School. Dr Lovell (the GP for Lutanda when it was at Pennant Hills after 1950) is deceased. There are no records from him in respect of the plaintiff or otherwise. The original application form for admission of the plaintiff to Lutanda is missing. According to Mrs Middleton, records kept by Mr Murray in relation to Lutanda no longer exist. 85 The transcript (T 8) reveals that it was common ground that the records of the AWB were not complete, or were lost. Apparently there were no interrogatories administered to the Board, or at least none were tendered. 86 A matter to be also mentioned, particularly in respect of the evidence of former children (but not necessarily confined to them) is that a person’s recollection including recollection of events may be distorted over time by various factors with a potential for error increasing with delay: cf Longman v The Queen (1989) 168 CLR 79 at 91, 108-109. 87 A tribunal of fact also can bring its own common sense and indeed experiences of life (subject to the principles relating to judicial notice) to bear on these issues. The tribunal of fact is entitled to accept in whole or in part a witness’ evidence: Naxakis v Western General Hospital (1999) 73 ALJR 782 per Kirby J at 793 applying Leotta v Public Transport Commission (1976) 50 ALJR 666 at 669. That is part of its fact finding role. I have regard to these matters as well in relation to assessing the reliability and credibility of witnesses, both those called and uncalled (but whose affidavits have been read).
The Trial
88 As I have said before, in 1942 when the plaintiff was born, Australia was at war having been at war since 1939. In the 1930’s it had been in the grip of Depression, with all its hardships. The White Australia Policy was in place at the time. There was in the general community, a prejudice towards the Aborigines, as referred to in the 1939 Public Service Board Report. That Report recommended that the “problem” of Aborigines and the community as recognised in the Australia Conference of 1937 was to be addressed by way of assimilation; see also inter alia the provisions of s 7(1)(a) of the amending Act of 1940. Thereafter, the stated policy of the AWB was that of assimilation and more particularly so in respect of part Aboriginal children who were “white” in appearance. Assimilation was not only a policy of the Board, but as I have said, there was a statutory duty in respect of that approach that had to be implemented. Irrespective of today’s standards, it was felt in the 1940’s that assimilation of Aborigines into the community was in the best interests of the Aborigines. This was the view of the legislature and of other political leaders of the era, presumably reflecting the values and standards, of the time. 89 In 1942, (and during the war years till 1945) the war effort had the priority in terms of demands on labour and resources. The AWB reports during the war years and post-war years reveal problems for the Board arising from staff and resource shortage also caused by the war. The priorities were not on the domestic front. Many families had been broken up because of the war. Many fathers were overseas in the military forces. The plaintiff’s father was in fact said to have been a soldier (in the Sixth Division) when the plaintiff’s mother became pregnant on New Year’s Eve 1941. 90 The following exchange appears (at T 208):
Setting of events in the 1940’s and 1950’s and Contemporary Values
91 The following further exchange later took place (at T 560-1):
“ HIS HONOUR: We are putting this in the context that this case concerns not standards of the 1990s and 1990 perceptions. This concerns standards and contemporary values and perceptions and the like in the 1940s and early 50s. That will be remembered in this case.
HUTLEY: We have never made a submission to the contrary.
HIS HONOUR: We have to be very careful we do not look at 50s and 40s through the so-called enlightened or better educated or more knowledgable views of the 1990s. That would be error; wouldn’t it.
HUTLEY: It would be.
HIS HONOUR: Yes, it would be”.
92 Thus one is looking at the contemporary community standards of the 1940’s and 1950’s and not the standards that exist today. The subject of contemporary community standards was referred to by Brennan CJ in Kruger v Commonwealth of Australia (1997) 190 CLR 1 where his Honour said (at 36-37):
“ HIS HONOUR: I am concerned about the danger arising from a situation that clearly must be thought about, that I do not look at yesterday through today’s eyes. Today’s moral standards and values and contemporary standards and values are not constant, they shift and so in a situation like this, where acts and omissions are alleged between 1942 to 1960, the claims have to be put into historical context, the context being standards and values at the time and not standards and values of contemporary Australia in the 1990’s.
HUTLEY: At a theoretical level, we do not dissent from that. One has to attempt to do that and, with respect, we submit that there is and can be a tendency to believe that we were so much better than they were and that is something which one ought, as equally, guard against as saying they were so much worse than we are, as I cannot tell because I do not know.”
93 See also Dawson J at 53-54; Toohey J at 97. Gummow J in Kruger’s case also commented on this question of “standards”. He said (at 158):
“… 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”.
94 In Williams [No 1] Kirby P at 514 referred to “the passage of time and changing perceptions of right and wrong conduct” as presenting problems. As Powell JA said (at 520) “there will be the difficulty …… in seeking to recreate for the benefit of the tribunal, some 50 years after the event what was the atmosphere of …. at the times when the relevant events are said to occur”.
“The philosophy given expression in the specific provisions to which I have referred now may appear entirely outmoded and unacceptable. Nevertheless, in its time, the 1918 Ordinance expressed a response to what then for at least 80 years had been perceived, initially by the Imperial Government, as the plight of the indigenous inhabitants of Australia as a consequence of the expansion of European settlement and land occupation.”
95 The next matter that I propose to accept views upon perhaps touches upon community perceptions. The courts “cannot provide a solvent for every social problem or a remedy for every social problem”: Tucker v U.S. Department of Commerce (1992) 958 F 2d 1411 at 1413 cited by Gaudron and McHugh JJ in Breen v Williams (1996) 186 CLR 71. Their Honours further said (at 115):
Remedies under the Law
96 Nor in my view can it be said that all human relationships problems, including those of nurture and nature can always be the subject of solution by law. Matters concerning their emotions, their level and content, happiness, and other natural relationships are not readily susceptible of resolution by the courts. Nor does the law accept that when misfortune occurs someone is necessarily to blame, or that there is a legal responsibility in someone to pay compensation or damages. 97 Some of the restraints on the function of the Court have been discussed by Mahoney JA in Breen v Williams (1994) 35 NSWLR 522 at 557-558. The function of the court is to apply the law, not to legislate for the change of it. It is the function of courts to decide cases coming before them according to law. It is not the function of courts to change the law by processes which are legislative not judicial. As was said in State Government Insurance Commission v Trigwell (1979) 142 CLR 617 by Mason J at 633:
“In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the “new” rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.”
98 In some cases it is the responsibility of Parliament to decide for example whether a common law rule should be replaced. Indeed, sometimes the solution may be wholly a political one and one beyond the jurisdiction of the court. 99 In determining what is the meaning of “reasonable” in the statement of the common law duty of care, perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect: Maloney v The Commissioner for Railways (NSW) (1978) 52 ALJR 292. In Quigley v The Commonwealth of Australia (1981) 55 ALJR 579, Stephen J (at 581) when discussing an employer’s duty of care observed “But what will satisfy that duty at any particular time will depend upon the circumstances prevailing at that time”. 100 The common law cannot provide a remedy for all life’s accidents, which are the fault of no person. The point is well made in the dissenting judgment of Fullaghar J in Commissioner for Railways v Anderson (1961) 105 CLR 42. His Honour when speaking of “accidents” said as follows (at 58):
“The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found.”
101 Further or alternatively, even where there is error, not every error is to be equated with negligent error giving rise to an entitlement to recover damages: Giannarelli v Wraith (1988) 165 CLR 543; Public Trustee v The Commonwealth of Australia (NSWCA 20 December 1995, unreported) per Mahoney JA at 29-30; Barrett v Enfield London Borough Council [1999] 3 WLR 79. If it were it otherwise, public authorities, welfare authorities, indeed charitable bodies might even restrict or qualify services which they are or might be willing to provide: cf Romeo v Conservation Commission (NT) (1998) 192 CLR 431 per Brennan CJ (a case rather involving a traditional category of negligence, in which individual responsibility was also examined in some detail). Even if there was error and I do not find any in the circumstances of this case, it would not in any event amount to negligent error, for reasons that will appear. 102 At common law, no action lies for, in effect, “bad parenting” or “bad upbringing”, at least by natural parents: Hahn v Conley (1971) 126 CLR 276; see also Attorney-General v Prince & Gardner [1998] 1 NZLR 262. Thus for example, had the plaintiff stayed with her mother, and developed a disorder of the type alleged, it would appear that the plaintiff could not have sued her mother. 103 To impose a legal duty on a substitute for a non biological carer to provide maternal care of the type that a natural mother could or might be expected to ordinarily provide, apart from issues of practicability and realistic achievability, could involve imposing a higher duty of care on the substitute carer than that imposed on the natural mother. Thus there is an issue of whether in circumstances where a natural parent (mother) cannot be sued, a third party carer who has taken responsibility for bringing up a child which the mother is unable or unwilling to do, or cannot do, should be liable to be sued. Next, it is difficult to see how the law can always be expected to provide the solution to a all problems arising from life itself, from nature or nurture. 104 The case also raises issues as to whether the obligations urged are confined to situations where a child became a ward on the application of the mother under s 7(2) of the Act as opposed to a committal by a Children’s Court order, under s 13A of the Act creating a “wardship”. Indeed, the committal to a home (under s 11 of the Act) may be for a short specified period. A question may arise as to whether there is an alleged duty to provide a “mother substitute” only under s 7(2) but not under s 13A. It would perhaps be surprising if different duties existed qua a neglected or uncontrollable child under s 13A to those under s 7(2) of the Act. Next there are issues of non-delegable duty urged in the instant case yet under s 11A(1) there is the specific power to indenture or place a ward in employment of an employer. Again the AWB may place a ward in a home; board out a child under s 11(1) or place a ward in the care of a foster parent: see also s 11D and s 11E. 105 Next, the case raises issues that may, as well, have future impact in the area of parent/child relationships; foster parent/child relationships; adoption situations and in respect of children who were or are brought up in State, charitable, or denominational institutions or homes (voluntary and otherwise). Indeed, the decision is one that concerns the bringing up of all children, of parenting generally, irrespective of the child’s race, sex, colour or creed. 106 As to different standards of society at different times, this may be illustrated by examples found in the evidence. Mrs Bull (a retired social worker) was called by the plaintiff. She was asked (at T 69-70) whether referral of a child to a Child Guidance Clinic in the 1950’s (the matter of a Child Guidance Clinic reference was in issue) was a matter of last resort for schools, parents or carers. She said there was a lot of prejudice about psychiatrists and about psychotherapy. She thought on the whole that there was often a jeering attitude. “You know, sort of oh, you’ve got something wrong with your mind type of thing. So there was prejudice that might of operated to stop some people from having a go if you know what I mean”. She accepted that at the time some people might have thought it might have done more harm than good in rearing a child of pre-teenage years to take them to a clinic with psychologists and psychiatrists rather than trying to deal with the situation in the circumstances in which they were living. This passage of itself suggest that counselling had a role in the 1950’s different to that in the 1990’s. 107 Mrs Buxton was called by the defendant. She made a similar point. She gave evidence that in 1952 she was a qualified nurse with triple certificates in general, midwifery and infant welfare (care of babies from birth to kindergarten age). She was asked:
“I make one observation in conclusion. The word “negligence” has tended of recent years to lose all meaning. It is interesting to recall that Sir Frederick Pollock foresaw that this very result might follow as an indirect and unjustified consequence of the decision of the House of Lords in Donoghue v. Stevenson (1) . That very learned lawyer, immediately after the publication of the decision in that case, wrote a note upon it for the Law Quarterly Review (2). That note has been reprinted in the last two editions of Pollock on Torts. Towards the end of it the writer issued a warning against “untenable exaggeration” of the rule laid down in the case, and added “We still have to take notice that there are such things as inevitable accidents which are nobody’s fault.”
108 The plaintiff submits that the plaintiff’s mother had been a ward of the Board (251J) and was therefore either a full blooded (the probability) or a half-caste aborigine within the meaning of s 3 of the Aborigines Protection (Amendment) Act 1918. The defendants accepts that document (252J) records the plaintiff’s mother amongst the “register of wards” of Aborigines Protection Board. Document (251M), an internal letter 22 February 1939 from the Secretary of the Board to the Matron of the Aboriginal Girl’s Home Cootamundra (a home run by the Aborigines Protection Board) and seen and noted by Mrs T. English Inspector on 25 May 1939, records advice that Miss Casey will arrive at Cootamundra on 24th instant to “escort Dora Williams; CM, RO and BC to situations” which save for one person, were to be in Sydney and to see that arrangements were carried out. Clothing was to be provided for the girls. They were to be medically examined and a certificate to be obtained in relation to their present physical condition. The plaintiff’s mother would at that time then have been fifteen years of age. The handwritten words “Girls were discharged as per your instruction being administratively implemented or departure from the Cootamundra home as per instruction. I do not find to mean the plaintiff’s mother was discharged from the Board’s supervision or control but rather from Cootamundra. Clearly the Board would not have intended, to use the plaintiff’s expression, “let loose”, the plaintiff’s mother then a young woman at fifteen from the control of the Board, without her being placed in the hands of an appropriate person or in a employment situation. It does seem that such a “situation” had already been arranged in Sydney by the Board hence the escort. 109 The plaintiff’s mother appears to have remained a ward of the Board until the age of eighteen. She was no longer a ward, having attained the age of eighteen, at the time of the plaintiff’s birth: see s 3 of the Act for definition of “child” and “ward”. 110 There is no precise information as to the mother’s situation between 1939 and 1942 (ie between the age of fifteen and eighteen). However, I would infer that she worked in a “situation” type employment probably as a “domestic servant”. The birth certificate reveals the mother’s address as being at what appears to be a private residential address at North Sydney. This view is also reinforced by a history to Dr Waters recorded in his report of 22 October to which I will turn to shortly. 111 The plaintiff was born on 13 September 1942 at the Crown Street Women’s Hospital to Dora Williams. The plaintiff’s mother had been admitted to the Hospital on the day of the plaintiff’s birth. She remained at the hospital for 29 days and was discharged on 12 October 1942. The Hospital’s Admission Register, and other available hospital records reveal the plaintiff’s mother as being aged eighteen and single. There is no reference to the father in that record. 112 The birth certificate does not record any details of the father. The only evidence in relation to the plaintiff’s father is contained in the history to Dr Waters (22 October 1991) which I accept so far as it relates to her parentage. It is as follows:
“Q. Where you lectured upon the importance of the mother of child bond”?
A. It was mostly difficult feeders and the care and feeding of the infant more than the mothering bond. That was not recognised I don’t think for some years after that the very great importance of a mothering bond certainly not in my training time. Lectured more in the health of the infant and feeding of the infant. The Truby King form of training. We didn’t have psychology lectures or those sorts of things in our course”. (T 406-407).
The Plaintiff’s Admission to Wardship at Bomaderry
113 The mother and father never married. The child was illegitimate within the law. The plaintiff never met her father or his family. 114 Several points may be made by way of confirmation of this parentage history. The birth was about nine months after a New Year’s Eve party. The War was on, and there was a Sixth Division. It is probable that the “situation” earlier referred to was a “situation” of like nature to a “situation” in a private home as a domestic servant. The mother did not apparently return to the home of the father’s family. 115 The history to Dr Waters is not only supported by what I have just said but there are the independent and reliable pieces of evidence that the plaintiff’s mother was “removed” from her family by the Board (she was included in the ward register), and that she was also placed in the Board’s Cootamundra Girl’s Home. The plaintiff did not give sworn evidence but she did swear in para 82 of her affidavit of 20 November 1996 that she was reunited with her mother in 1973 and that she had “found out that I was an aboriginal”. 116 Of significance in the history recorded by Dr Waters is that “Joy’s mother apparently never told anyone of Joy’s birth”. By this I take it to mean that neither her parents or members of her family nor the father’s family or the father were told about the plaintiff’s birth. There is nothing to suggest that the plaintiff’s father (or his family) ever displayed interest in the pregnancy, the birth or in the plaintiff. What happened to him one does not know. There is nothing to suggest his family showed any interest. It is probable that the mother’s pregnancy was unplanned. 117 At the time of the birth the plaintiff’s mother was eighteen years and single and probably of limited or no financial means. There is nothing to suggest she had independent means, nor relatives or the personal capacity to raise or support the child. There is nothing to suggest she had any known relatives friends or otherwise in Sydney or at all who could help or assist her. There is nothing to suggest that she had other than the accommodation in the private home where she worked or that after the birth she was welcomed back. There is reference in the history to her “staying on” to work as a domestic in hospitals and not returning to the father’s home. This was a likely situation in the circumstances. In my view the plaintiff’s mother was in the situation of being an unmarried single Aboriginal woman with an illegitimate child and with really no one to turn to for support, other than to the Board. She had been a ward with the Board since the age of seven up until the age of eighteen. It had looked after her, cared for her and raised her in its home at Cootamundra. There was no where else for her to go, or turn to for help, other than to the Board in a situation where she could not keep the plaintiff child for one or more reasons no doubt valid to herself. The absence of the father’s name or the birth certificate supports this view. Who would or could best look after the child to the eighteen year old plaintiff’s mothers knowledge (and she was living in Sydney) having regard to her many years spent with the Board? The irresistible inference is that it could only be the Board. 118 Indeed, it would seem to me that in the circumstances outlined that the Board when approached by the mother under s 7(2) was firstly willing to accept the plaintiff (and did accept her) and continued to accept her and treat her as an aboriginal child within the meaning of s 3 of the Act. The Board knew the “status” and Aboriginality of the mother who, had been in its earlier care and control. There is no evidence it knew of the father’s “origins” at the time of birth, or was concerned about such. It acted upon the basis that it had, or would have jurisdiction over the child. She was the child of an Aboriginal as well. Nor is there any evidence as to the “appearance” of the plaintiff as a baby as and at her birth. However, as its 1941 report also revealed the Board had found difficulty in defining “half caste aboriginal” within the meaning of s 3 of the Act. In my view it was willing to accept in the circumstances the plaintiff as a “ward” and did so. Indeed, I consider the Board accepted the plaintiff as a ward upon the basis that she plaintiff was an Aborigine and/or the child of an Aborigine. The Board had the plaintiff’s mother at its Aborigine Home at Cootamundra and knew she was an aborigine and treated her as such. Second, if the Board had not accepted the plaintiff’s child, the mother not being in a position to keep her, there can be little real doubt that the Board could probably have been compelled to take the child under its control pursuant to Children’s Court committal procedures then capable of being invoked under s 13A of the Act. The Board under this section assumes control of Aboriginal children if they are committed to it by the Children’s Court. In the present circumstances the point is that had the Board not acted voluntarily it probably could have been required to take the child under the s 13A procedure. This is significant in that, if the with the plaintiff’s arguments are good, then they would potentially apply in a situation where the Children’s Court has made an order under s 13(A) including a possible order that a child be committed to a home. Further, if the plaintiff’s arguments are valid then they would impose the same duties and obligations upon the Board qua a child ward not only in a s 7(2) situation but also where there has been a Court committal involving one of the situations under s 13A(1). The Board in the latter situation involving a committal would have no choice but to accept the child as a ward. This potential situation highlights some of the very early problems for the plaintiff in the case. 119 In my view in the circumstances there was but one practical option available to the plaintiff in the circumstances (including being in hospital for 29 days) where the plaintiff’s mother was an Aboriginal woman with limited training or education and who did not tell any one of the plaintiff’s birth, and where she probably had no relatives or friends who could assist in raising the child. She was without money or a job and probably homeless. She was in no position to keep the child and in my view turned to the Board under s 7(2). Indeed, the defendants accept that the only organisation in Sydney with which the plaintiff’s mother had a connection was the Board and its officer Mrs English. 120 In my view without options or choices available to her I infer, indeed, I find that the probability is that before 12 October 1942 the plaintiff’s mother contacted the Board, (or this was done on her behalf) and having established contact the plaintiff’s mother made application as the parent of the plaintiff child to admit such child to the control of the board under s 7(2) of the Act and that the Board having received the mother’s application admitted the plaintiff baby to its control. Having been admitted by the Board to its control the plaintiff also became a “ward” within the meaning of s 3 of the Act. Once it admitted the child to its care, the Board itself had no practical option but to send the child to the UAM Children’s Home at Bomaderry being in reality the only suitable home accommodation or place available for her reception. (See also the Public Service Board’s Report 1940). Based upon the prior dealings with the Aboriginal plaintiff’s mother including having her at its home at Cootamundra, the Board in my view would have had no difficulty in accepting the mother’s application under s 7(2) of the Act. 121 The defendants’ argue that there is no documentary evidence that the plaintiff was admitted to the control of the Board (which is perhaps not surprising after 57 years) and that there was no oral evidence on the issue. It is submitted I cannot make a finding that the plaintiff was ever admitted to the control of the Board. I reject this submission. I repeat I draw the inference that the Board took control of the plaintiff on or before 12 October 1942 at the mother’s request whilst she was still in hospital. There are further reasons for this view. The date of the plaintiff’s mother’s discharge from hospital was 12 October 1942. The plaintiff arrived at Bomaderry Children’s Home on 13 October 1942. 122 The Children’s Home at Bomaderry had been in existence for many years prior to 1942. It was an Aboriginal Children’s Home conducted by the United Aborigines Mission (who had a mission to evangelize the aborigines of Australia). The Aborigines Children’s Home was apparently experienced in looking after and raising very young Aboriginal children from birth. Indeed there is evidence that as at 1930 the Home housed children of both sexes with the Board determining the policy in terms of the age up to which Aboriginal children could remain at Bomaderry. Up until 1947 when the plaintiff left the Bomaderry Mission appears to have communicated problems to the Board for the latter’s consideration. The Board conducted general inspections from time to time, at least probably annually.
“Ms Joy Williams was the daughter of an Aboriginal woman. Her mother was the youngest of five girls. At aged 7 (in 1931), Ms Williams’ mother was removed from her family by the Aboriginal Protection Board and placed in Cootamundra Girl’s Home. Ms Williams stated that her mother had never been allowed to speak her indigenous language and had been forced to speak English under the threat of having her mouth washed out with carbolic soda. Both maternal grandparents were Aboriginal from Cowra. Ms Williams father, an Irishman and a soldier in the 6th Division, was the son in the household in which her mother worked as a domestic servant.
The pregnancy with your client was the product of a sexual encounter at a New Years Eve party at her father’s house. Her mother had a hysterectomy which left her sterile. Joy was removed and her mother stayed on to work as a domestic in private hospitals. Joy’s mother apparently never told anyone of Joy’s birth. She was also unaware of the hysterectomy and was not informed of this until later when she found out that she was infertile”.
123 The United Aborigines Mission was a body that appeared to emphasise the importance of religion as and at the 1940’s when they conducted the home at Bomaderry, New South Wales. Religious training and the teaching of religion and moral values was regarded as important by the Board and was considered important generally in terms of the contemporary standards of the 1940’s and 1950’s: cf s 11A(2) “religious instruction of a ward”. This Home was conducted by the Mission as at April 1947 to look after and raise Aboriginal children. The staff in April 1947 at least included a Matron and Mission Sisters. Other staff also assisted including two full time assistants and two voluntary helpers. As to the relations between the Board and Bomaderry, the incomplete correspondence tendered reveals that the communication was ongoing communication between the Mission and the Board in respect of the operation of the Bomaderry Home. While Bomaderry Children’s Home was run by the UAM, it was subject to the oversight and direction of the AWB. The staff at the home were employed by the UAM (see: Board memo to Director General Public Health - 29 October 1948). And the correspondence of the Board including Mrs English’s report of 13 December 1948 often referred to and described the children as being “Wards of this Department”.
124 Until 1930, the Home housed children of both sexes up to the age of fourteen. At that stage the AWB apparently determined as a matter of policy that the ages of children staying at the Home should be restricted to ten years. At this age the boys were removed from Bomaderry to be placed at Kinchela Boys’ Home and the girls were removed for placement at Cootamundra Girls Home. The situation was reviewed by the Board in 1931, 1934 and 1938 but was not altered.
125 In 1945, at the request of the United Aborigines Mission, the Board considered the matter of extending the age of the children to stay at Bomaderry. The decision taken by the board consisted of extending the age for removal of girls to 12 years, but maintaining that the removal of the boys take place at the age of 10 years. Had the plaintiff not gone to Lutanda in 1947 then presumably in accordance with that policy the plaintiff would have been removed from Bomaderry at the age of 12 in 1954 and then transferred to the Board’s Home at Cootamundra.
126 The correspondence in 1945 (when the plaintiff was aged three years) reveals that at the Bomaderry Home that girls of 10 years assisted in the caring of younger children such as getting them dressed in the morning, giving them other little attentions and assisted in taking them to and from the dining room. The boys also assisted in little tasks. Matron Darby considered that this help from the boys and girls not only helped the staff in work but was “helpful training for boys and girls”. It is difficult to see how any valid criticism could be made of this.
127 It would appear that in 1946 for some months there were some staff shortages. The Board was requested to remove certain boys to Kinchela. The material suggests that placement and removal of the children was a matter for the Board with the UAM making the request for action.
128 In this respect and in others, the Board exercised oversight of Bomaderry. It carried out from time to time through its inspector (in some cases Mrs English) a general inspection of the Children’s Home at Bomaderry: cf the General Inspection report of Mrs English in 18 June 1947). Indeed, the inspector could recommend transfers to the Kinchela and Cootamundra Homes and arrange for Sydney medical care for children at the home (s 14A) and arrange medical examinations. In one inspector’s report to the Board Superintendent in referring to her inspection of the Aboriginal Children’s Home at Bomaderry, dated 13 December 1948, Mrs English stated that at the time there appeared to be “a mistaken idea that because the children are wards of this Department the latter is responsible…”. This view provides additional support for the view that the plaintiff was a “ward” of the Board, whilst at Lutanda. 129 The plaintiff was such a ward at Bomaderry from 1942 to 1947. In respect of the plaintiff herself the UAM was of the view, contained in a letter from the Secretary of the UAM, Miss Turner of 9 April 1947 to the Board to the then Superintendent of the Board, Mr Lipscombe, that the Board’s approval was required to remove the plaintiff to Lutanda. The letter request that she be taken there without further delay subsequent to the Board giving that approval. On the question of removing other Aboriginal children of white appearance from Bomaderry, the Board considered that this too was a matter for it and was being considered: see the letter dated 22 April 1997 from the Acting Secretary of the AWB.130 The Board additionally made consistent reference to the Bomaderry Home and other Board run homes in their yearly reports throughout the period 1939-1960. During the years up to June 1939, the Board was known as the Aboriginal Protection Board. In the Aboriginal Protection Board’s report of the year ended 30 June 1939, in which there was reference to the Board having to deal with diverse problems including prejudice on the part of the white community and reference to the objective end of complete assimilation of aborigines as well as to the resolutions relating to assimilation objectives passed at a conference of Aborigines Protection Authorities in 1937, there is recorded the following:
The Reports of the Aboriginal Welfare Board.
131 See also the report of the Board for the year ending 30 June 1940 where there is reference to Children’s Homes and to Bomaderry. 132 The report of the Aboriginal Welfare Board for the year ending 30 June 1940 made further reference to adopting the policy of assimilation expressed in the APB’s report ending 1939. The reference to the Children’s Homes is as follows (at 1488):
“At Bomaderry there is a Children’s Home, conducted by the United Aborigines Mission and accommodating about 25 inmates, the maximum age of which is 10 years, after which they are transferred to Kinchella and Cootamundra. This home is partially supported by the Board, but staffed by the Mission to which the premises belong.”
133 See also s 7(1)(a) of the Act which also imposed an assimilation duty. The report noted that an average of twenty four children were maintained in care at Bomaderry, there being twenty one as at 30 June 1940. 134 In the Board’s report for the year ending 30 June 1941 the following is recorded:
“The care of Aboriginal Children committed to the Board’s care because of cruelty , neglect or loss of parents is still regarded by the Board as one of the very important features of its administration. Many years ago a home was established for girls at Cootamundra and later an institution for boys at Kinchela on the Macleay River. In addition to these two home the United Aborigines Mission has established an institution for the reception of babies and very young children at Bomaderry on the South Coast”.
135 As to the Bomaderry Home, the report notes that it is run by the UAM but is subject to inspection and oversight by the AWB. It continues (at p 1496):
“Aboriginal children who have been committed to the Board’s care as wards continue to receive affectionate care in the homes specially provided for their reception. The children thus committed have been the victims of unhappy circumstance., sometimes through the loss of parents or perhaps from conditions of cruelty, vice or neglect. The staff of the Homes receive these children with kindness and endeavour to bring happiness into their young lives.”
136 The Board concluded its report by saying that the task of caring for the aborigines of this State is not an easy one, indeed it may be regarded as one of the most difficult to administer of all the social services. It is stated that the Board was doing their utmost with the funds at its disposal for the benefit of those under its care. 137 It is clear that as at 1942 when the plaintiff was born, the Board had established two homes under s 11at Cootamundra (Girls) and Kinchela (Boys). As a matter of practice the Board’s wards that were very young wards were sent to Bomaderry. There was no other institution or place to which they could be sent although legally, had the Board wished, it could have sent them to it’s Cootamundra Home or Kinchela Home. The one and only facility or place, in any real practical sense, available to which the plaintiff could be sent was to Bomaderry where there was in effect special provision for the care of Aboriginal babies and children of tender years. As much is confirmed by Mrs English’s report dated 18 June 1947. 138 In its report ending 30 June 1947 which covered the period during which the plaintiff was transferred to Lutanda, the Board emphasised (as it did in 1946) that one of the principal features of its policy was the assimilation of aborigines, particularly those of lighter caste into the community. I have referred to the Board’s difficulty in seeking to identify who was a “half caste”. The report stated that legally the Board was not responsible for the protection and general welfare of those persons of mixed caste who do not possess a preponderance of aboriginal blood. With respect to the position of the plaintiff in this case, several points may be made. Firstly, the reference here is to suggested legal responsibility and not factual responsibility for persons without a preponderance of aboriginal blood. Secondly, there is no evidence that the Board acted strictly in accordance with this policy. There is no evidence to suggest that it never went beyond its mere legal responsibilities. Thirdly, in my view, as I have said, I consider that in the circumstances of this case the plaintiff was accepted without dispute as having a preponderance of aboriginal blood for the purpose of her being an Aboriginal child under s 3 of the Act and that she was accepted by the Board into its control under s 7(2) . The Board acted as if she did fall within the section and did not thereafter treat her or act as if she did not or even suggest that she was not a child of an Aborigine. The Board presumably exercised some discretion in determining who had the relevant preponderance of aboriginal blood an who was to be regarded as an Aborigine of full-blood or one who was a half-caste Aborigine, comprehended as it then was within the terminology of the time. The plaintiff was accepted to be within its power. Further, or alternatively, the Board should not now be heard to say the plaintiff was not a person within its jurisdiction or a “ward” under the Act. 139 The 1947 report dealt with Children’s Homes in the following terms:
“The Home is situated in a bush environment about one mile and a half from Nowra, and the children of school age attend the Bomaderry Public School. Medical and dental attention is given in an honorary capacity by local professional men.Apart from a general oversight of the Home, the Aborigines Welfare Board contributes largely to its maintenance by supplying food and clothing for the children’s use.
Upon attaining the age of ten years the girls are transferred to Cootamundra and the boys to Kinchela.
An average of thirty children was maintained at the Home during the past year.”140 In addition there was as mentioned the Bomaderry Home to receive babies and children of tender years. 141 The Board’s report for the year ended 30th June 1948 enunciated the Board’s policy as follows:
“An important duty of the Board, as laid down in the Aborigines Protection Act, is that it shall provide for the custody and maintenance of the children of aborigines. In practice, the Board assumes control of aboriginal children after they have been committed by the Children’s Court as neglected or uncontrollable children. Frequently children are admitted to the control of the Board at the request of the parent or guardian. These applications are considered on their merits, and if the parents are found to be unable to exercise proper care of their children, the Board usually assumes control of their children The Board at present maintains two Children’s Homes for the reception maintenance, education and training of the aboriginal children admitted to its control. These two Houses, namely, the Kinchela Boy’s Training Home and the Cootamundra Girls’ Training Home, have continued to function satisfactorily.”
142 I repeat again that in my view the evidence gives rise to the clear inference that the plaintiff’s mother applied to admit the child to the Board’s control pursuant to s 7(2) and the Board agreed to accept control of the plaintiff pursuant to such application and upon the basis it could do factually and legally as being a person within the Act and its jurisdiction. That is what I consider probably happened. It would be somewhat unreal to consider that the plaintiff was involved in Children’s Court committal proceedings under s 13A of the Act with an order being made pursuant to s 13(7) of the Act. There is nothing to suggest why such a procedure might be involved where the plaintiff baby was with the mother in hospital for four weeks. It was hardly likely to be in such situation neglected or uncontrolled with s 13A(1), although this may well have happened had the plaintiff’s mother not acted under s 7(2). Indeed, the defendant concedes that there is no evidence to support the view that a court order may have been sought under s 13A. It also follows that there was no trespass at Bomaderry because the AWB took control of the child on the mother’s application under s 7(2) of the Act and thereafter the Board had lawful control over the plaintiff.
“Board’s Policy
Assimilation of the aboriginal into the general community is the keynote of the Board’s policy. When it is considered that 95 per cent of the so-called aborigines in New South Wales are half and light castes, whose former social fabric has been torn asunder by the onrush of Western civilisation, and who if left alone would have neither the traditional background of the aboriginal way of life nor the culture of the white man to stabilise and guide them, the need for this policy should be abundantly clear.
The policy has a positive aim, namely, to make the aboriginal a responsible, active, intelligent citizen.
The Aborigines Welfare Board realises the difficulties arising from a different mode of thinking, content of knowledge and emphasis on different values and ideals. It realises the aborigines inherit a different view of life, and that the value of our culture must be proved to them before it will be accepted. Again the burden of ostracism and the stigma of inferiority, which have been the aborigines’ lot in the past, have left them with a deep-seated resentment which must be overcome if constructive reform is to be carried out.
In the past progress has been slowed by colour prejudice in the general community. With a betterment of the aborigines’ conditions, it is hoped that prejudice will be lessened and the Board looks forward to the day when aboriginal and white will live together happily and harmoniously - an example to the world of how, by liberal and wise administration, this social problem can be solved”.
143 On 5 July 1988 the United Aborigines Mission advised the plaintiff’s solicitors that the Missionaries who worked at Bomaderry during the time of her residence (now deceased) kept few records maintaining only the basic essential details. The letter said:
The Home at Bomaderry
144 For reasons that (including the “need” of the plaintiff), I will elaborate on, both here and in considering the lay witness evidence, I find that that need was in fact filled in a loving devoted, charitable religious way by the staff including Mission Sisters, in particular Sister Saville, no doubt in difficult circumstances involving the bringing up of other people’s children in a home, including in wartime Australia, and in early post-war Australia. 145 The United Aborigines Mission was clearly a religious mission very much concerned with the Christian religion and its practice. I have already referred to the article by Sister Saville (16 October 1942). It was a place of intended good charitable works looking after the children, caring for them and in effect raising them with the Board’s involvement as explained. Indeed in the United Aborigines Messenger, August 1, 1948 in an article “Children’s Home Bomaderry” written by A. V. Darby there is a report upon movement of children from Bomaderry to Kinchela and Cootamundra. Prayers were offered for them. Reference was made to the fact that in 1947 the family was reduced to forty three and to the plaintiff’s departure in terms:
“Our Mission workers are called by the Lord and supported by the people, back in the 1940’s very little support was available, they came to fill a need that they saw and were not aware of the political influences behind the reason for the home. We firmly believed we were filling a need that the aboriginal people wanted.”
146 The evidence would suggest a caring religious atmosphere with the Mission seeking to do the best it could in the circumstances for the bringing up and protection of the plaintiff. Indeed, there is evidence that it was interested in advancing her interests to do the best for her and to monitor her progress. It appears to be that it was the UAM who initiated the suggestion in December 1946 that, because of her white appearance, that a more suitable environment for her would be Lutanda at Wentworth Falls. It was apparently considered in good faith that it would be better and more advantageous for her (by the standards and values of the time) being a girl of “white” appearance to go to a Home for white children at Wentworth Falls. It was apparently the UAM at Bomaderry who initiated inquiries at Lutanda for the placement of the plaintiff. It was the UAM who pleaded the plaintiff’s case to the Board of which she was a ward (see letter 9 April 1947). One can infer that it was, with the best will in the world, seeking to protect and advance her interests because of feelings of compassion towards her. The Board agreed that it was in her best interests for her to go to Lutanda. Indeed one might infer that, so did the mother, who signed the Lutanda application. If the girl had not gone to Lutanda with the support of UAM and approval of the Board she would have remained at Bomaderry, and absent fostering or adoption, have stayed there till she got older and then been transferred to the Aboriginal Girl’s Home at Cootamundra, where her mother had been a ward. There is no evidence the mother sought her restoration under s 11D(1)(h) or sought to have the plaintiff discharged to her care under s 11D(1)(i). Clearly she was in no position to care for her or look after her (see also the mother’s letter to Miss English in December 1956). It is worth again noting that the mother had not told any one of the plaintiff’s birth and so the question of relatives (the father’s or the plaintiff’s mother) being in a position to take care did not arise at all. Absent fostering (which could not be permanent) or adoption, the situation was one where the plaintiff was to be raised as a ward in an institution Lutanda, or the Aboriginal Children’s Home Bomaderry followed by the Aboriginal Girl’s Home at Cootamundra, and to the use the language of the time to be raised in effect as a “white girl” in those institutions. The UAM Sisters considered that it was desirable she be brought up as a “white child” in a white environment as being more suitable ie children “should go to Homes with children of their own colour”: letter 9 April 1947. The Board agreed, that it was in her interests to be transferred to Lutanda. It also accorded with its policy and accorded with the duty of “assimilation” imposed on the Board by s 7(1)(a) of the Act. In my view the collateral purpose of relieving pressure on accommodation was probably very much a secondary one. 147 As to the plaintiff’s mother visits at Bomaderry. I accept that the plaintiff was visited by her mother at Bomaderry as she asserts in paragraph 6 of her affidavit (see also history to Dr Waters in October 1991). I have no reason to doubt that this history given to her by her mother is correct. I would also add that the Children’s Home at Bomaderry was not a home established under s 11 of the Act, and s 13(1) of the Act did not apply. The plaintiff’s mother was entitled to visit the plaintiff at Bomaderry and I find she did so between 1942 and 1947. 148 There appears to have been a warm affectionate relationship that arose between the plaintiff and her carers at Bomaderry, particularly one carer, Sister Saville (a photograph was tendered in evidence). I accept there was bonding and attachment to her after the plaintiff’s arrival at Bomaderry and whilst she remained at Bomaderry between her and Sister Saville According to the history (which I accept on this point), after Joy was placed in the Bomaderry Children’s Home, Dr Waters records the following history:
“Joy, four and a half years, with us from the age of four weeks has been recently placed in another Home. We miss our little Joy: she loved the Lord, and often said so and Joy had an understanding beyond her years and often surprised us with questions and statements”.
149 There is evidence (not objected to) in respect of the relationship of Miss Saville with the plaintiff at Bomaderry. Miss Moorehouse (from Lutanda) gave evidence (at T 334-335) that she had not met Miss Saville but had heard that Sister Saville was a missionary in Bomaderry who through caring for Joy, was getting married and that Joy was one of her favourites. Miss Moorehouse that Sister Saville had thought that Joy should be given a chance in a good home and that Sister Saville had asked whether she could go to Lutanda. Miss Moorehouse said she was told this by Miss Sangwell at Lutanda. 150 In cross-examination (T 338-339) Miss Moorehouse said that Joy had told her “When Miss Saville got married, she should have taken me to be her little girl”. She continued (at T 339) “She just thought that when Miss Saville married she should have gone with her to be her little girl”. She was asked (at 339):
“…. She has a number of early memories at Bomaderry which she described as “comfortable safe memories”. She felt that someone was looking after me and she recalled being cared for at this time by several black women who were there. She also remembers being visited by a lady with a silver buckle “whom she now believes was her mother”.”
151 This evidence also points to bonding and attachment with Sister Saville. I accept Miss Moorehouse’s evidence (see also para 9 of her affidavit of 3 December 1997). Miss Moorehouse gave the following evidence which I also accept (at T 362):
“Q. How often did she say that to you?
A. Oh, I didn’t count, but I knew that’s how she felt”.
152 Mrs Buxton (nee Parker) gave evidence along similar lines which I accept. She said (at 399-400) that she knew “back then” that Joy had been at Bomaderry Children’s Home prior to coming to Lutanda that “she had much paler skin than anybody else there and that she was transferred to Lutanda at Wentworth Falls because she looked so out of place amongst the black children”. 153 The above evidence suggests a caring feeling and compassionate relationship, that she was cared for and looked after, perhaps even given special additional attention because of the particular interest with her by Sister Saville. Whilst the plaintiff was at Bomaderry she had such a close enough relationship with Sister Saville that she wanted to go with her as her little girl when Sister Saville left to get married. According to the plaintiff Sister Saville took her from Bomaderry to Lutanda at Wentworth Falls. Indeed, the relationship bond was such that the plaintiff also remembered her only visitors at Lutanda were Aunty Leila (Sister Saville) and Uncle Sid (Sister Saville’s husband). In para 65 of her affidavit the plaintiff described visits to her when she was twelve and recalled getting phone calls every two years after Sister Saville moved to Western Australia. 154 There was in my view a particular bond of affection between the plaintiff and Sister Saville at Bomaderry, interrupted inter alia by Sister Saville’s departure and desire to see the plaintiff placed in a “good home” at Lutanda. This was also a good faith act on the part of the Mission, particularly Bomaderry, to try to get the plaintiff transferred to Lutanda described as “a good Children’s Home where she would be well cared for and loved”. Sister Saville would not I believe have supported a transfer of a “problem child” without disclosing she was such a problem child, to someone especially her superiors as well as the Matron. If there had been a problem I am confident the Matron would have disclosed it to Mrs English or the Board at the time of discussing the transfer. 155 As to the plaintiff also being properly looked after at Bomaderry, the Board “generally inspected” Bomaderry. Mrs English’s report of 18 June 1947 is revealing. The plaintiff was admitted to Lutanda on 16 April 1947 just shortly after the plaintiff left for Lutanda. There was an inspection on 22 and 23 April, the subject of Mrs English’s report of 18 June 1947. 156 The report reveals there were 43 children in residence. The plaintiff had left just one week prior to the inspection. She observed that the children were neat and tidy in appearance. She reported that when required the children were medically examined by local doctors and that their diet was adequate and nourishing. Recreational activities are well catered for. The staff numbers were also described. 157 The Matron reported to Mrs English that the conduct of the children was very satisfactory and that there were “no problem cases” [my emphasis]. I accept that what was being reported upon included that of the position of the plaintiff prior to her recent departure for Lutanda. The proposition of the plaintiff that technically the plaintiff was not covered by the description because she had just been transferred is not one that I accept. It would be strange if the only “problem case” had just left Bomaderry. For reasons that I will set out more fully in respect to the lay evidence, I find that the plaintiff was not problem child in any respects nor at Bomaderry displayed anything that showed a manifestation of any psychiatric or emotional disorder. I infer and find that at Bomaderry and when she left Bomaderry she was a normal child including in her behaviour. I find that she was in no way disturbed or showed signs of disturbed or abnormal behaviour and that this was the situation when she departed Bomaderry. I reject the plaintiff’s submissions to the contrary. Importantly, a medical certificate was also mandatory for entrance into Lutanda (see the pro forma Lutanda Application Form). I infer that this practice was followed qua the plaintiff and a certificate given. I will return to consider these matters again when I consider the lay evidence. 158 In my view, a child such as the plaintiff who was transferred a week before the inspection with the assistance and support of Sister Saville, would probably have been a “non problem case” as described by the Matron and given the requirement for a medical certificate, also in good health. 159 Whilst there may have been some “overcrowding” at Bomaderry, the position appears to be that, as concluded by Mrs English in April 1947:
“ Q. Were you told how many staff there were?
A. No, the only thing I know about it was that photo I had of Joy with Miss Saville and the little ones, but there could have been more, but I don’t know how many more children, no.
Q. So you didn’t know, for example, that one of the reasons that Joy was sent away from Bomaderry is because it was too crowded?
A. It wasn’t too crowded, but this Miss Saville thought that Joy would have a chance to be assimilated - that’s a bad word, isn’t it? But they did think it would give Joy a chance to grow up in a good children’s home where she would be well cared for and loved.
Q. But you weren’t told that one of the reasons that they wanted Joy to be removed was because it was too crowded down there?
A. No, no, I didn’t. I just know it was because Miss Saville was getting married and Joy was her favourite little girl.
Q. And you didn’t know how many children were there?
A. No, and I never ever met Miss Saville, I just know that.
Q. And you didn’t know how many staff were taking care of the children?
A. Oh no, I don’t know. I could have found out, but the lady I would have asked died two years ago, so it was too late.”
160 In any event I find that any overcrowding did not diminish the care and proper support given to the plaintiff at Bomaderry by the UAM including in particular that provided by Sister Saville. The plaintiff has submitted that the report of Mrs English cannot support any inference that the conditions at Bomaderry (commencing in 1942 and including continuing one or three year till the war finished) were other than adverse to the plaintiff’s emotional health. I reject this submission. I reject the submission that she was or appeared to be profoundly disturbed or disturbed at all. This submission is advanced by the plaintiff perhaps to support the evidence of Dr Katz, a medico legal expert called in the plaintiff’s case, and Mrs Bull, a retired social worker, that the plaintiff was suffering a disorder of attachment and must have been displaying signs of that disorder when she was young. For reasons that will become clear, I reject the views of Dr Katz and Mrs Bull because of my findings on the lay evidence that no such behaviour is proved whilst at Bomaderry. Dr Katz’s and Mrs Bull’s views that there was or must have been a situation involving a disorder of attachment present some 52 years ago involves rejection of my findings and inferences from the evidence. They are views not in accordance with the facts as I have found them to be. 161 In respect of its case against the defendants in respect of Bomaderry, essentially all that the plaintiff submits should have been done was in my opinion, in fact reasonably done, namely, regular inspections of the institution and children in order that the AWB would be in a position to give an accurate history of the background of the individual child if and when the child was moved to another institution. The plaintiff has not proved or proved to my satisfaction what history was in fact given. I have already referred to some of the material. There is also the application form. The plaintiff’s counsel submits that the plaintiff (residing at Bomaderry in 1947) should have been examined by staff of a Child Guidance Clinic in Sydney (at the age of 4-1/2 years) before going to Lutanda (Wentworth Falls) in April 1947 in order to determine her mental state and the risk of harm to which she was subject having regard to the circumstances of her maternal deprivation and the conditions of Bomaderry. I reject this submission. No such examination was reasonably required, practically required or called for. The child was in my view behaving as a normal child of her age. 162 Indeed, it is appropriate for me to repeat something I have said before. The Board’s report for the year ended 30 June 1945 specifically referred to the previous five years being fraught with many to give contest to the plaintiff’s position at time of birth in difficulties and restrictions in connection with the implementation of constructive and comprehensive policy:
“This Home appears to be functioning in a satisfactory manner and to be serving a useful purpose in the care of Aboriginal Children of tender years.”
163 Indeed, in its 1943 report the Board noted that the war had depleted the Board’s manpower and material resources causing a progressive policy to be differed. The war was impacting then upon the Board’s man power and resources and upon its policies activities and operations and its capacity to “deliver” services. In 1946 the Board’s report referred to the year under review presenting difficulties from the point of view of staffing owing to the fact that the curtailment of demands due to the war was only gradual. 164 With respect to the inspections of Bomaderry the Board’s inspector saw the children and the accommodation. The Inspector acted upon received reports and information from the Matron(s). The children that were old enough were in attendance at public schools at Bomaderry. Further there is no evidence of any psychiatric problems with any of the other children at Bomaderry. There is no evidence led that the any of the children since the 1930’s up till 1947 or at all who have been at Bomaderry (or even Lutanda) developed or had ever been diagnosed as having attachment disorders (or had developed attachment disorders) or mental disorders, or ever developed Borderline Personality Disorders. The Home had been operated for receipt of babies since 1930’s and was still operating in 1940’s. There was no evidence presented that any GP in the area diagnosed any emotional problems, medical problems of attachment or Borderline Personality Disorders for any children at the Bomaderry home.
“These war years have necessitated a curtailment of expenditure and an inability to proceed with a general programe shortage of manpower and availability of material. Furthermore plans for the development of welfare activity which would be consequent upon more adequate staffing had to be deferred because of inability to secure trained staff”.
165 In April 1947 the plaintiff was transferred from Bomaderry to “Lutanda” Children’s Home at Wentworth Falls conducted by the Plymouth Brethren. She remained at that Home in Wentworth Falls until 1950 when it moved to Pennant Hills. She stayed with the Home at Pennant Hills until discharged on 31 July 1960. This information was provided to the plaintiff in a letter from the then Administrator, David Bryant dated December 1984. The plaintiff was advised in that letter that Lutanda had no school records but that the plaintiff had attended Hornsby Girl’s School possibly in years 1955-1957. I accept that the plaintiff was probably educated to an Intermediate level. There is no evidence she suffered any detrimental problems with her education let alone received any adverse behaviour reports. I would note that a copy of the plaintiff’s birth certificate and a copy of her mother’s application for admission was enclosed. The plaintiff was advised that “no money was paid for keep” and that Lutanda “was unable to help with pocket money”. 166 Had the plaintiff not been “transferred” to Lutanda in April 1947 then unless she was discharged under s 11D(1)(h) or 11D(1)(i) at the age of eighteen, then in accordance with the Board’s policy, the plaintiff ward would probably have been transferred by the Board to the Board’s Aboriginal Girl’s Home at Cootamundra (a home constituted under s 11 of the Act) when she turned twelve years and probably would have remained there as her mother did till the age fifteen. She would whilst at Cootamundra, probably have been trained to perform domestic or similar work till the age of fifteen. Contrary to the submissions of the defendants the “transfer” in my view did not involve s 11D(1)(h) or (i) of the Act, or reflect, an implementation of either of those provisions. 167 The circumstances surrounding the child’s transfer to Lutanda have been seriously disputed. It appears that by about December 1946 (when the plaintiff was aged 4 years) the plaintiff’s complexion was such that the UAM Mission at Bomaderry were describing her as having the appearance of a white child. Sister Saville of the Mission apparently knew of Lutanda in circumstances I have discussed. In any event the Mission wrote to the Board (the plaintiff was a ward of the Board on my findings) in December 1946 about removing the “white child Eileen Williams”. The decision to transfer or remove the child to Lutanda appears to have been one that the Board approved, indeed, consented to in its capacity, of having the plaintiff, as its ward under its control. The mother also consented to the transfer with full knowledge of where her daughter was being placed and probably with knowledge of the reasons therefore. I infer that the mother at the time (1947) probably also thought it was in her daughters interests in terms of the choices available to her. On the evidence it cannot be said that the plaintiff was denied any opportunity of being fostered or adopted. Further, there is no evidence that at the time of the plaintiff’s transfer, or before, or even subsequent, that the mother even requested the Board to consider having the plaintiff adopted or fostered out. 168 Clearly there had been intervening correspondence because the Board responded as follows in a letter from the Acting Secretary of the Board dated 22 April 1947 to the then Secretary of the UAM in the following terms:
The Plaintiff’s Transfer to Lutanda
169 Pausing at this point of time, it appears that between December 1946 and April 1947 there had been communication between the UAM and Lutanda about taking the “white girl” plaintiff to Lutanda. This accords with the fact that Sister Saville knew someone there. I am also satisfied that somehow and by some means between December 1946 and March 1947 some communication was established with the plaintiff’s mother. How she was located or by whom is not clear. Since Lutanda did not know her from previous dealings perhaps she was located either by the UAM or the Board or perhaps both. The plaintiff was a ward of the Board on my findings and on the probabilities the Board knew the plaintiff’s mother’s whereabouts. 170 The Board appears to have had to approve the transfer to Lutanda. It may have foreshadowed its willingness and approval as early as February 1947. In any event the Application for Admission to Lutanda Form (Vol A1 - p7) had already been stamped with the Chief Secretary’s Stamp on 6 March 1947. The transfer took place on 16 April 1947. 171 The letter of 9 April attributes several reasons as to why the transfer was requested. First, the plaintiff child (aged four) appeared then to be a white person in appearance (in an Aboriginal Home for aboriginal children). Second, the home at Bomaderry was subject to strain to the extent it might close down. Third, by removal of the “white children” (and there were “four other white children who should go to Homes with children of their colour”) the train on Bomaderry facilities would be removed as “well as the children being placed in a more suitable environment”. Fourth, Sister Saville was leaving Bomaderry to get married. She knew of Lutanda, and believed it would be in the plaintiff’s interests to be transferred there. 172 Taking the letter at face value at least from the point of view of the standard and values of the time, the UAM was of the view that infants such as the plaintiff and four other children who were “white children” would be in a better and more suitable environment if they were not in an Aboriginal Children’s Home but in a Home for white children and in the case of the “white child” plaintiff in the white children’s home at Lutanda. In my view in the case of the plaintiff, the Board was in clear agreement. The Board too had its own reasons. There was a policy of assimilation of Aborigines (to which I have referred) and inter alia, reflected in the duty imposed on the Board under s 7(1)(a) of the Act. Clearly it perceived it also to be in the best interests of the plaintiff to go to a Home. 173 That said, there was the problem of transferring the child who was then a ward to Lutanda, a home regarded as being one for “white children” under the Child Welfare Act. The plaintiff was a ward of the Board and not a ward under the Child Welfare Act. Nor did she ever become one under that Act. Indeed, to be placed at Lutanda did not required the plaintiff to be a ward under either of the two Acts. It seems to me that an arrangement was implemented as follows: The UAM suggested a transfer which was pursued by Sister Saville. The Board agreed to the transfer of its ward. I would infer that the mother’s signature to the application form obtained before the transfer was required by Lutanda as a “formality” or administrative requirement to permit the transfer to be implemented. In my view this accords with the nature of the application form for admission and the different handwritings appearing upon it. The form is a pro forma form of the “Lutanda” Children’s Home. The date of the application is not revealed. The plaintiff’s mother’s signature appears on it as applicant. That is not surprising for reasons stated. It appears that Lutanda required it as an administrative matter, as formality to permit of admission to the facility. The defendants argue that the application was by the mother and provides evidence that there has been a discharge of the plaintiff to the mother’s care under s 11D(1)(h) and/or possibly (i) of the Act. I do not accept this submission. I find as a fact that the child was still a ward at the time of the transfer, the mother’s signature was no more than a formal requirement probably sought by Lutanda for “administrative” purposes. 174 My reasons for so finding are as follows. There had been the occasional visit(s) to the plaintiff at Bomaderry but there is nothing to indicate that between 1942 and 1947 the mother sought the restoration of the plaintiff ward, or that she was in a position to do so, or wanted to do so, or was ready, willing and able to do so. Next, by signing the form in 1947, the mother knew her daughter was still a ward. There is nothing to indicate that she wanted her restored to her custody. Her signature to the document for admission of the child to Lutanda would support a contrary view. By so applying the mother was indicating she did not want the child restored to her care (nor had she on the evidence done so in the past). She indicated she wanted the child to go to Lutanda. She did not indicate she wanted to see the child. 175 A submission that the form evidenced a restoration of the child ward (as I have found) or even that the child was not even a ward) is thus one I cannot accept in terms of reality. The mother’s role appears to have been a limited “paper involvement” one required at least by Lutanda to permit of admission to its Home. That such a view is the probable one is also supported by several other matters revealed by the application form itself. The form is a pro forma of Lutanda. It contained the following:
“Your letter of 9th April is acknowledged.
In connection with the child, Eileen Williams, I communicated with you about ten days ago regarding the transfer of this child to the Lutanda Children’s Home, Wentworth Falls, and no doubt you have now received that communication.
Regarding the question of removing other children from the Bomaderry Children’s Home, I have to advise that this matter is receiving attention. It is anticipated that Mrs Inspector English will be visiting Bomaderry Home at an early date and she will discuss this matter with the Matron of the Home.”“Name of Guardian Aborigines Welfare Board
176 The reference to guardian (whatever be the true legal description of the Board) made it clear that the Board “represented” (perhaps even “mistakenly”) it was such. The stamp of the Board further supports the representation. I am satisfied that in reality the transfer from Bomaderry involved the Board. Next, the reference to whether the applicant is “to contribute fees” was deleted suggesting like at Bomaderry no fees were to be paid by the Board or otherwise. In my view the wardship under the Aborigines Protection Act established in 1942 continued on at Lutanda between 1947 and 1960. What I have said is consistent with the mother playing no more than in effect a “notional” formal signatory role in 1947. In my view the form is not evidence that the wardship had ceased. 177 In my view, the Board was involved in the placement of the plaintiff at Lutanda, approved the transfer for the purpose expressed in the application, participated in its implementation for the primary reason “to take [her] away from association of Aborigines as she is a fair skinned child”. It is also a proper inference that the plaintiff was kept at Lutanda until 1960 for the same reason, which accorded with the view that it was a more suitable environment, and it was better for white children to be with children of “their own colour” and because no adoption or fostering option was in fact available. The plaintiff was sent there or placed there for the best of motives in accordance with law (as it then was) and for what was perceived for her to be the best protection and advancement and for her own good. If this had not been done at the age of twelve she would, absent fostering or adoption (and there is no evidence foster parents were available), probably have been sent to the Board’s Aboriginal Home for girls at Cootamundra till the age of fifteen, and further remained as a ward till aged eighteen.
Address Bridge Street, Sydney
Association of Aborigines as she is a fair skinned child”.
being Admission is sought “To take the child from the178 In my view the plaintiff remained a ward of the defendant whilst at Lutanda from 1947 to 1960. She became a ward in September - October 1942 on application by her mother to the board to admit the plaintiff to the control of the board. The Board admitted the child and thereafter she became a ward. The Board has a duty to provide for the custody and maintenance of the children of aborigines: s 7(1)(c). The plaintiff was such a child. The duty to educate was removed in 1940. The Board also had a duty to exercise a general supervision and care over all aborigines: s 7(1)(e). In addition, it had an assimilation duty under s 7(1)(a) imposed by law. It was also its policy at all material times in practice after 1940. Under s11D (introduced in 1943 after the plaintiff’s birth) the Board was given authority to do a number of things as referred to in that/these sections including in relation to custody. The Board not only had control whilst the plaintiff was a ward, it also had the authority to discharge a ward from “supervision and control” or direct the restoration of the ward to the care of his parent or another person. 179 When the plaintiff was transferred to Lutanda the child remained under its control and supervision albeit that the “custody” location was changed from Bomaderry to Lutanda. Her status as a ward was not changed. She did not cease to be a ward till 1960. There is nothing to suggest that she was involved in or visited the child at Lutanda (and in 1947 I infer by her signing the admission form that she knew where the child was being taken, namely, to Lutanda) or took any interest in seeing or communicating with her at all until 1956. Section 13(1) did not bar her from seeing the child or communicating with the child at Lutanda since Lutanda was not a Board home within the meaning of s 11 of the Aborigines Protection Act. The fact that the mother did not visit or make contact or seek to make contact in 1956 knowing that the child was at Lutanda, (having signed a form in 1947 in relation to her admission to Lutanda) also supports the view that the plaintiff ward status continued despite the physical location where the plaintiff was in residence of custody. Indeed, what the mother did from 1947 to 1956 is consistent with a view that she did not wish the child’s status or relationship viz the Board to change from what it had been between 1942 and 1947 (when the child was at Bomaderry), nor did she wish to have the child returned to her care. 180 That the mother was not in a position to take back the care of the child or seek to have the child restored to her care between 1947 and 1956 is an inference to be drawn from her letter to the Board (Mrs English of the Board) in December 1956. This appears to be the same Inspector Mrs English who was with the Board in 1939 and who presumably knew or knew of the plaintiff and the plaintiff’s mother. That letter when the plaintiff’s mother was aged (36 years) is a sad letter. It reveals that the mother had no one to turn to other than Mrs English. The plaintiff’s mother had been in hospital and could not afford to pay the bill. She had no money and was living with her sister. She was seeking a job at or near Condobolin with no success. She also sought help in obtaining a place on the Mission at Murray Bridge. The plaintiff’s mother was in no position to nor sought the care of the child (in the same way as she had since 1942 or between 1947 and 1956). Physically and financially she was not in a position to do so. 181 Significantly the mother did ask Mrs English “could you please tell me if I could go and visit my daughter as I would like to see her now”. Whether the mother had forgotten that she had consented to the child going to Lutanda or whether she believed any visit to her wherever she was required the Board’s permission is not clear. 182 This is the only direct evidence from the mother of her wishing to see her child (and not obtain its care) at Lutanda since 1942. Even though the plaintiff’s mother visited her at Bomaderry, there is no evidence that the plaintiff’s mother sought to see her daughter between 1947 and 1956. She knew in 1947 that the child was going to Lutanda. There is no evidence of visiting or communication (or seeking to visit or communicate) with the child at Lutanda or of contacting Lutanda direct (before or after the letter of December 1956). Whatever be the reason I find that the mother did not visit or communicate with the plaintiff at Lutanda between 1947 and 1960, it is important to note that there was no reason in law preventing her from doing so. 183 Criticism had been made by Mr Hutley of Mrs English’s response of 28 December 1956 to the plaintiff’s mother’s letter. The mother’s request about going to visit her daughter was in fact not dealt with by Mrs English. I do not impute bad or improper motives. Indeed one can well understand reasons why she would not have done so including the fact that the plaintiff’s mother had not seen the plaintiff between 1947 and 1956 (nine years). Nevertheless, the letter was not followed up, and no subsequent request or contact appears on the evidence to have been made by the mother to Lutanda or otherwise. 184 In 1973 it appears the plaintiff met her mother for the first time through Link-Up. In 1982 she visited Cowra where her mother’s family came from. 185 In my view the plaintiff was a ward of the Board from 1942 living firstly at the Mission Children’s Home, Bomaderry till 1947 and thereafter living still as a ward at Lutanda from 1947 to 1960. As a ward she was under the control of the board. She was not fostered out after 1943 under the 1943 legislation. There is no evidence that any person sought to foster her, wished to foster her even on a temporary and not permanent basis. There is nothing to suggest that a suitable matching foster parent could be found between 1943 and 1960 for the plaintiff or at all.
The Wardship of the plaintiff
186 The plaintiff was a resident at Lutanda from 1947 to 1960. In 1930 the Lutanda Children’s Home (church denominational home) was established at Wentworth Falls. It was established by two women a Miss F. M. Dalwood (known affectionately as “Aunty” and a trained school teacher) and Miss E. Sangwell. Miss Dalwood’s brother was involved and associated in the provision of the Dalwood Health Home for Far West Children’s Scheme. Clearly the Dalwoods were caring citizens with an interest in the welfare of children. Mr Dalwood was involved in the purchase of the property “Rennail” and provided part of the finance. The first children coming into its care were orphans. Later it took in other children. The home was thereafter co-ordinated by people of the Plymouth Brethren faith. Through their influence, the Home attached importance to religious values and training standards. A missionary vision was maintained. 187 In 1938, a Miss Atkinson from Tasmania joined the work. An assembly was commenced in 1944 (she retired in late 70s). In 1944 demands of the Child Welfare Department for a partial reconstruction occurred. Clearly from the very early days the then Child Welfare Department had some association with the Home and an awareness of its activities and the like. Consideration was given to building a new home at Pennant Hills. In April 1947, Miss Dalwood died. Before doing so, at the express wish of Miss Dalwood and at the invitation of the Trustees of the Home, Mr Murray accepted the position of Superintendent of the Home. The new Home was opened at Pennant Hills in 1950. Shortly prior to 1950 Miss Sangwell and a Mr Ritchie were married and they retired. About this time the Trust was reconstituted including a F. L. Sattler and F. G. Sattler. In 1955 the Home was incorporated as a “Non Profit Company”. Mr Murray resigned in 1955. At that time Mrs Buxton (nee Parker) of Tasmania became Matron for three years. She was succeeded by Mr Middleton taking on the role of Superintendent and Mrs Middleton. They brought in the words of Mr Sattler “fresh drive and vigour” to the Home. On their withdrawal in 1959 the position of Superintendent was filled by Mr Reid. 188 During the many years of Lutanda personal service was given by other employees with needs being often heavy and met with some difficulty. They provided charitable services and were unpaid. The Home was a denominational institutional home and was supported by volunteers from the Plymouth Brethren. 189 In 1950 the New Home was opened at Pennant Hills, a separate building for boys was completed in 1958. 190 For many years a band of ladies regularly visited Lutanda with help in domestic duties. Physical work was also done by helpers. The work being performed at Lutanda was perceived to have been very much as the implementation of the “Lords” work and support: “Lutanda Children’s Home … 1930-1960”. 191 The Lutanda Children’s Home produced Annual reports. The 1946 report referred to “drab and difficult days when faith was tested”, and to the importance of religion and prayer. Miss Dalwood emphasised the finding of Christian homes and suitable employment for boys and girls as they reached the age of leaving Lutanda. The activities of the school, the support from outsiders was described. 192 Although Lutanda was not a home within the meaning of s 11 of the Aborigines Protection Act, tendered in evidence was a license dated in 1955 showing that Lutanda was a licensed placed within the meaning of Part V11 and s 28 of the Child Welfare Act 1939. A license under that section signified the approval of the Home as a place established for the reception of children under the age of seven years “apart from their mother or parent”. It was not an institution within the meaning of s 49 of the Child Welfare Act. Section 28 was not a recent amendment. I infer that Lutanda had been licensed as such a place as at 1947 and thereafter. A child in order to be placed in the home did not have to be a ward within the meaning of s 4 of the Child Welfare Act. A child could be placed there by a parent without the child being a ward. 193 Mr Hutley accepts that Lutanda was a licensed place under s 28 of the Child Welfare Act, and that the Board had a power to board out a ward with the person in charge of any charitable home or hostel which would include Lutanda. This concession makes it unnecessary to strictly speaking explore the status of Lutanda any further. That the child was properly placed there is not in dispute. A child did not have to be a state ward to become an resident of such a place. It is not suggested that the plaintiff’s status as an AWB ward (which I have found she was) changed to that of a ward under the Child Welfare Act. Upon receipt of an application for a license the Minister was required to cause an inquiry to be made and for a report to be furnished. A register was to be kept of every child that entered such a place pursuant to the license. Section 30 provided for inspection of the place by an officer accompanied if necessary by a medical officer to make an inquiry and report for the purposes of s 28 or to ensure compliance with conditions. Provision was made for cancellation of the license upon breach of the conditions. A register was to be kept of each child received into care 194 According to the Child Welfare Department Report 1955 (tendered by the plaintiff) as at 30 June 1955 there were 285 licenses in force under s 28 of the Child Welfare Act 1939. The number of licenses in force remained fairly static “particularly in regard to large denominational homes”. The 1955 report referred to District Officers regularly visiting both private and denominational homes. Lutanda was apparently a denominational home. 195 Indeed, I would infer that Lutanda was licensed under the Child Welfare Act at the time of the plaintiff’s arrival in 1947 and for some years beforehand. It is hard to imagine the UAM (at Bomaderry) recommending as it did a transfer to Lutanda indeed even taking steps to secure a place at Lutanda unless it was licensed under the Act. Likewise, it is hard to imagine the AWB approving such a transfer of its ward other than to there custody unless it was licensed. The history of Lutanda shows it having had dealings with the Child Welfare Department: and the reference in 1944 to “demands by the Child Welfare Department for a partial reconstruction … of Lutanda”. Exhibit A1 at 251 f-h, also contains an extract from a register kept by Lutanda - see also reference to Regulation 46 of the Child Welfare Regulations 1940. 196 It cannot be said that these statutory provisions and licensing conditions are not of significance. The defendant’s in oral submissions, made submissions to the effect that if “Lutanda” was “good enough” to be licensed by the Child Welfare Department it would have been good enough for the AWB. A great amount of time at trial has been devoted to the nature, quality and content of care at Lutanda where the staff (unpaid) attended to the care of the children including the plaintiff. On the evidence I find that the women carers did so with charity, trust, devotion, care and within constraints, with appropriate discipline (measured by the standard of the day), kindness and affection. The difficult task of bringing up the plaintiff and other children whose parents could not or would not or were unable to do so themselves was accompanied by religious instruction, support, appropriate discipline and dedication. 197 The license conditions indicated what was required to be done by a licensee, to comply with such. They should not be ignored. The 1955 license conditions reveal that the license that was issued specified the number of children who could be received under the age of seven years ‘apart from their mother or other parent’. Conditions of the license included conditions that each child be cared for to the satisfaction of the Minister for Public Instruction (who was also the Minister for Child Welfare) and that structures and buildings were to be maintained to the Minister’s satisfaction. Additionally the person in charge was required to notify the Director of Child Welfare of any child meeting with an accident or becoming ill. If urgent medical care was required, the licensee was requested to give it to the child. 198 The number of children were controlled. The staff of the place had to be maintained at the number and with like qualifications as those specified in the license. Staff numbers and qualifications could not vary and the licensee had to satisfy the Minister as to the appropriate staff numbers and qualifications to obtain the license. The person in charge of the Home under the license had to maintain the qualifications specified in the applicable license. This too was an important matter in terms of the standard of care at Lutanda. 199 These are, inter alia, the conditions on the license. As I have said, the plaintiff entered Lutanda as a ward and remained there as a ward of the Board but in the custody of Lutanda. Lutanda was subject to the statutory provisions and conditions stated in their license. I do not find, qua Lutanda, that these license qualifications (probably on foot for many years) were breached at any time during the plaintiff’s stay. I infer the conditions were complied with and that the relevant license conditions can be understood as objective proof of the conditions prevailing at Lutanda during the time of the plaintiff’s residence. 200 Mr Hutley did not seek to make out a case based upon any activity of the Child Welfare Department in respect of Lutanda. However, he disputed the entitlement of Mr Barry QC to rely upon evidence of what the Child Welfare Department did or did not do in relation to its inspections of Lutanda. He submitted that there was simply no inquiry as to the conduct of Child Welfare Department. He argued that this situation arose from the way Mr Barry had conducted his case including either the rejection or non-pressing of certain materials in affidavits of Miss Moorhouse (at T 344), Mr Sattler (at T 145) and Mrs Simpson (at T 263). He argued that Mr Barry should not be entitle to rely upon what the Child Welfare Department did or did not do in relation to Lutanda and further particularly in terms of whether its activities could be said to be a discharge of the duty of the Board to the plaintiff. This said, it does not preclude me from referring to the Act, Regulations or conditions as the case may be and other objective matters. In fact it was Mr Hutley who tendered as part of his case the 1955 license or if I am mistaken, did not object to its tender by Mr Barry. Further, no objection was taken by Mr Hutley to certain evidence led in relation to Child Welfare Department inspections. I find no difficulty in dealing with this evidence, since the place being licensed, would presumably have been and was inspected. It would be surprising if it was otherwise. 201 Mrs Reid recalled that during her years (from about 1958 until the early 1960’s) whilst at Lutanda she could recall inspectors from the Department of Child Welfare coming to Lutanda and observing the general operations of that home and how it was running. She said that they did not come to check on individual children and usually came when the children were at school. Miss Moorhouse in her affidavit referred to a Child Welfare Department Inspector attending Lutanda during the time that Miss Dalwood was at Lutanda (1930-1947). Mrs Middleton, who worked at Lutanda from 1956 until 1959, recalled inspectors from an unknown government department coming to inspect Lutanda. Miss Oxborrow had vague recollection of “welfare people” visiting Lutanda. In my view the evidence establishes that Child Welfare Officers or Inspectors probably visited Lutanda from time to time to carry out inspections. 202 I note also the plaintiff’s concession that no complaint is made by the plaintiff as to the adequacy or otherwise of the physical facilities at Lutanda.
The Lutanda Home
203 The plaintiff gave evidence during the course of the trial by way of an affidavit (dated 20 November 1996). The plaintiff affirmed a second affidavit by way of reply on the 20 February 1998 in which she reaffirms many of the previous allegations made in her primary affidavit. Her affidavit evidence is wide-ranging and covers many aspects of her life: at Bomaderry, at Lutanda and after she had left the care of Lutanda. It includes allegations, and appears, on a fair reading to have been prepared with careful consideration given to the matters referred to in it. 204 The plaintiff was not able to and did not give oral testimony on any of the matters contained in those affidavits, nor was she cross-examined on them. It benefits therefore to begin by setting out the plaintiff’s affidavit evidence in some detail. 205 The plaintiff deposes to the following. The plaintiff was born at the Crown Street’s Women’s Hospital in Sydney on the 13 September 1942 under the name of Eileen Williams. Her mother as appears on the birth certificate was Dora Williams, then aged 18 years. The plaintiff’s birth certificate does not show the plaintiff’s father’s name. 206 The plaintiff was informed and believed that a matter of hours after her birth she was removed from her mother under the instructions of the Aboriginal Welfare Board and soon after placed at Bomaderry Children’s Home which was an institution run by the United Aboriginal Mission. 207 The plaintiff stayed at Bomaderry from 1942 until about April 1947. Whilst at Bomaderry, the plaintiff has memories of a lady who came to visit her. The lady wore a blue dress and a belt with a shiny belt buckle that was “shiny like marquisate”. Later in 1973, having been reunited with her mother the plaintiff asked her mother whether she ever came to visit her at Bomaderry or Lutanda. The plaintiff’s mother replied:
The Plaintiff’s Affidavit Evidence
208 Though unsure of the number of times she saw this belt buckle, the plaintiff has no other recollection of visits from her mother while she was at Bomaderry. I accept that the plaintiff was told by her mother that she visited her at Bomaderry and that her mother did in fact visit her there. 209 On the 16 April 1947, the plaintiff was transferred to Lutanda Children’s Home, run by the Plymouth Brethren at Wentworth Falls. The plaintiff remembers Sister Saville taking her to Wentworth Falls and that at the time she was wearing a blue coat and a tartan skirt. The plaintiff gave evidence that all the other children at Lutanda who were there at the same time as the her were of European descent and white complexion. In her early years at Lutanda, the plaintiff believed herself to be a “white child and an orphan”. The plaintiff was never told whether or not she was an orphan but thought she must be. 210 At Lutanda, the plaintiff alleges that all the children were given a number and that the workers at Lutanda called the children by their number and not their name. The plaintiff states that she was known as ‘Girl 4’, having ‘Girl 4’ sewn on her clothes and towels. The plaintiff relates on one occasion of meeting a girl from Lutanda many years later at University saying that “I could only remember her as Girl 1. She couldn’t remember my name either but knew I was Girl 4”. 211 The plaintiff alleges in her first affidavit that at Lutanda she was treated differently from other children. One passage deserves to be set out in full:
“Yes, in Bomaderry. I visited you there until one day I came back to visit you and the Matron told me you were sick and had to be taken to hospital in Sydney. That was the last I saw of you at Bomaderry.”
212 The plaintiff alleges that at Lutanda she was raised to look down on Aborigines. This attitude she says was re-enforced through her education and through visits to La Perouse “where we’d throw money and all the Aboriginal kids would dive in to pick it up… The Brethren used to have special collections of money for the Aborigines who ‘can’t look after themselves and can’t keep themselves clean’”. The plaintiff states that at the time, as a result of this attitude, she used to cross the road so that she didn’t have to walk next to or close to Aboriginal people. 213 The plaintiff deposes that religious practice at Lutanda consisted of Bible lessons at least twice a day during the week and all day on Sunday as well as regular Bible quizzes. The plaintiff alleges that punishment often consisted of learning a chapter of the Bible, standing in a corner and reading a Bible for one and a half hours and writing passages from the Bible over and over again. The importance and significance of religious instruction is itself a matter recognised and countenanced for example by the Aboriginal Protection Act at s 11A(2): see also the 1940 Public Service Board Report and the Board Report of 30 June 1947, indicating the importance of religion to the child under the control of the AWB. 214 The plaintiff recalls that she was not allowed to dance or play cards as dancing was “of the world”. The plaintiff remembers also that she was not allowed to wear lipstick. On one occasion she remembers being caught for wearing lipstick. She states:
“While at Lutanda I was treated differently from the other children. I rarely went to private homes for Christmas and other vacations. At Christmas time I was often the only child left in Lutanda and one or more of the staff would remain to look after me or occasionally take me home. There were three Christmas times when Aunty Amy (one of the workers) took me to other workers’ homes; one was in Adelaide, one in Tasmania and one in Melbourne. Over the lengthy period I was at Lutanda, there was a significant turnover of staff and other children. I became one of the longest term residents of the institution. I had no visitors except later on Aunty Leila visited me once every few years. I was never offered placement with other families. I suffered from periodic bouts of depression, particularly at times when the family and friends of other children came to see them. I felt that I was unwanted and that nobody cared.”
215 The plaintiff remembers being constantly “passed over” for baptism by the Brethren. While the other children were baptised at around 13 or 14 years old and moved to the older girls home, the plaintiff remained in the main home with the young girls and finally, she states, moved to the boys home where she alleges that she had to look after them. 216 As part of the routine at Lutanda, the plaintiff states that every two weeks she had kerosene rubbed into her scalp to help protect against lice. When taking a bath, the plaintiff alleges that the girls had to line up naked with towels draped over their arms. The girls were then helped to bath by the senior girls in a high sided bath. Forms of punishment alleged by the plaintiff as occurring at Lutanda included “food deprivation” and on other occasions being forced to eat all her food as well as being denied the use of salt and pepper. 217 The plaintiff further alleges various forms of mistreatment at the hands of workers at Lutanda. She alleges that Sister Dalwood used to beat her when she was little:
“I remember I was caught once with Ruth Christie when we had lipstick on. I must have been about thirteen or fourteen years old. We were coming home on the train and one of the workers saw us. I was punished for wearing lipstick. My punishment was that I had to stand in the dining hall in front of the other children as they processed in, naked. I had to stand there for about half an hour. Even now I can’t wear lipstick because of that time.”
218 The plaintiff remembers that Miss Atkinson used to “lock me in the broom cupboard at Wentworth Falls with the mops and brooms. I couldn’t reach the light switch.” The plaintiff recalls that this punishment upset her more than the rest as she felt closer to Miss Atkinson that to other workers. Miss Atkinson used to let the plaintiff brush her hair. 219 The plaintiff further alleges offences by Mr Murray and Miss Simpson that they used to inter alia, assault the plaintiff physically. The plaintiff alleges that Mr Murray used to assault the plaintiff using a razor strap and that Miss Simpson used to assault the plaintiff using a butter pat. It should be noted that in the extensive hospital records from 1962-5 that no history of the plaintiff ever being subject to corporal or physical violence or punishment is recorded, nor is there in Dr Cooley’s report of 1960 any reference to such a history. Likewise the parole officers report of Miss Barnett contains no such record. The plaintiff further alleges offences by Miss Simpson in the following terms:
“I can recall one occasion in particular when she took my pants and hit me with a stick and I wet all over the floor. I remember that time as does my friend Ruth Christie. It was near my birthday and I was given some jacks by the Home. Ruth, Phyllis and myself hid in the lounge room and were playing jacks. Someone heard us laughing. I was the only one who got dragged out and beaten. After that they gave me morphine to shut me up.”
220 The plaintiff further alleges offences by Mrs Buxton (nee Parker) in the following terms:
“There was another occasion when Mildred Simpson threw me up against the bathroom wall and broke my wrist and collarbone. I was 11 or 12 at that time, that is 1953 or 54. I still have a scar from the nail that we hung our washers on. I was taken to the Plymouth Brethren doctor, Dr Lovell at his Beecroft Practice. That was my first introduction to morphine. From there I was taken to have my arm set at Hornsby Hospital.”
221 The plaintiff further alleges that she was often punished by being made to clean the bathroom with a tooth brush. 222 The plaintiff makes two primary allegations of sexual abuse which are set out in terms:
“Margaret Buxton (Parker), a worker, punished me for cleaning my glasses on my apron. She didn’t like me cleaning my glasses on my apron as it scratched the glass and scrunched my apron. Several times she made me stand in the corner for hours facing the wall with my glasses in my hands and both hands behind my back. She also made me hold my glasses above my head on other occasions for 4-5 hours.”
223 The second allegation is set out in the following terms:
“One of the Pennant Hills Primary School teacher used to tell me to be at the school sometimes at 7:00pm at night and he used to take me for drives. He was interested in me and he would sexually abuse me. I remember coming back late one night after driving and being caught coming in. I got a horrendous beating with both the butter pat and strap used. I could hardly walk afterwards. I just remember being so small and wanting to run up to my hiding place.”
224 The plaintiff admits to having run away from Lutanda on a number of occasions because she was unhappy. The first occasion that it occurred was when she was in primary school, around about sixth class which would have been in 1953-4. On one occasion, when the plaintiff was 13-4, she ran away after having spent the afternoon with a boy who was a friend of hers. The plaintiff alleges that as punishment for running away she was put in isolation for a week. On this occasion she states:
“Mr Reid was the superintendent after Mr Middleton. When Mr Reid came to Lutanda the superintendent’s quarters moved from being upstairs in the main home to being in a cottage through the vegetable garden, up at the back of the property. Mr Reid never corporally punished me. He only ever sexually abused me. From what I can remember it happened about four times. Always in the storeroom. He used to ask me to “help carry something”, usually biscuits. Once we were in the storeroom, he sodomised me with hands and his penis.”
225 The plaintiff alleges further occasions when she ran away because she found out that she was Aboriginal and because of her up-bringing felt that her Aboriginal blood made her bad. On some occasions it seems, the plaintiff attended at court for what the plaintiff says were occasions when she was charged with “Neglect, uncontrollable and exposed to moral danger.” On each of these occasion she alleges that she was sent back to Lutanda and got a hiding and was put in isolation. 226 The plaintiff alleges that after she left school she had to look after the boys aged between 8-16 years old. The plaintiff alleges that she was the victim of a gang rape. She puts the allegation against certain unnamed boys in the following terms:
“That’s when I had to write ‘God is love’ thousands and thousands of times. Every now and then Mrs Middleton, the Matron, would come in to see if I had repented. In her view I hadn’t and I’d have to keep writing. It was at that time that she said to me “You have mud in your veins”. She also said things about my mother. Something like, “You’re as bad as your mother” and something about my mother being “…drunk in the gutter”. I cut my veins after that to see if there was mud in there like she said. I still remember the shock and the look I must have had on my face when she told me. From time to time after this incident, during my stay at Lutanda and on other occasions I cut myself to see whether the colour of my blood was different form that of the other children at the home.”
227 The plaintiff remembers that her only visitors during those years at Lutanda were Aunty Leila (Miss Saville) and Uncle Sid who kept some contact with her. After the plaintiff was discharged from Lutanda on 31 July 1960, the plaintiff became employed at Parramatta District Hospital. She worked there for a period of months but no more than sixteen months. The plaintiff later worked at Bethlehem Nurses Club and at the Lorna Hodgkinson Centre as a nurses aide. 228 The plaintiff sets out her history after Lutanda in the following terms in her first affidavit:
“I hated looking after those boys. They hurt me. There were two older boys who used to hurt me sexually. The other boys would hold me down. It would take about ten of them to hold me down. The workers were all up in the main house. I never told anyone except Aunty Leila (Miss Saville).”
229 The reference in the above passage to homeless people is not entirely accurate. There is evidence of the plaintiff’s involvement with ‘bad’ company including persons who were criminals and those who participated in black mass paganism including with Roslyn Norton: see the Parole Report of Miss Barnett dated 1 March 1962 and see also the Hospital Records as well as the plaintiff’s criminal records in relation to the 1960 offence. 230 The plaintiff’s first daughter, Julie-Anne was born on 4 September 1962 while the plaintiff was a patient at Macquarie Psychiatric Hospital. Julie-Anne was taken away from the plaintiff at the end of July 1963 though the plaintiff doesn’t say by whom. The plaintiff states that as a result of this she became extremely depressed and cut her wrists. 231 The plaintiff’s second daughter, Rachel, was born on 13 June 1967 in Papua New Guinea. The plaintiff returned with Rachel to Australia in November 1967 “after her father deserted us”. At times the plaintiff states that she placed Rachel in the care of Lutanda. The plaintiff’s son Ben was born on 7 August 1973. While at Lutanda, the plaintiff’s mother did not visit her. 232 That was the extent of the plaintiff’s primary affidavit evidence.
“Soon after leaving Lutanda, I started associating with a lot of homeless people. I lived in many different places, mainly at the Cross. I started abusing various substances and became involved in various criminal activities and was convicted. I got pulled into a cult down at Kings Cross and did some awful things through that. A lot of people I was spending time with were involved in the cult also. The criminal offences I was convicted of are as follows: Offensive Behaviour 2.12.60, Offensive Behaviour 17.1.61, Larceny in a Dwelling (Victoria) 3.3.61, Attempted Bestiality 28.4.61. As a result of the last charge, I was in jail from 28 March 1961 until 2 November 1961. Between March 1962 and May 1965 I was admitted to Macquarie and Gladesville Psychiatric Hospitals on numerous occasions. From 1966-68 I lived in Papua New Guinea with Orest.
In my medical records from Macquarie Hospital, the entry dated 24.6.63 stated that “At the home she would deliberately do a misdemeanour so that a privilege she desired would be denied her. Wants continual punishment…” I do not recall ever doing things deliberately wrong for punishment. I may have done things for attention. Nothing I ever did pleased them at Lutanda.
From August to around October 1963 I was at Gladesville Hospital. I realised during that time that they were priming me up for shock treatment so I shot through and one of the nurses arranged for me to get a job at Rainbow Lodge at Kurrajong.”
233 The nature of the plaintiff’s evidence reveals a number of very serious allegations against the members and staff at Lutanda. The plaintiff relies on these allegations for the purposes of her case against the AWB. A number of submissions were put to the court on the use to be made of these allegations in the plaintiff’s case against the AWB. It is necessary to set out some of these submissions since they seriously touch upon her reliability and credibility as a witness. 234 It should be noted that counsel for the plaintiff (at T 40) did not preface the reading of the plaintiff’s affidavit with any comment as to its objective truth or otherwise. Specifically, counsel did not stress that the plaintiff’s evidence or any part of it to be read by affidavit, was not to be relied upon as being objectively true. Indeed her affidavits were taken into account by the experts called by the plaintiff and treated by them as being objectively true. 235 In her written submissions to the court, the plaintiff dealt with the various allegations made in her affidavit evidence in two places. Firstly, the plaintiff made primary written submissions in which she addresses in a general way, the use to be made of her evidence. Secondly, the plaintiff prepared written submissions in reply in which the plaintiff deals with the use to be made of several specific allegations made in her affidavit evidence. It might be helpful to start with the submissions made in reply first. 236 The plaintiff submits (at p 26 of her submissions in reply) that allegations of sexual abuse including allegations of sodomy against a particular male at Lutanda and allegations of gang rape by boys at Lutanda cannot be pressed as the onus in Briginshaw v Briginshaw (1938) 60 CLR 336 cannot be met:
Submissions as to the effect of the Plaintiff’s Evidence :
237 In relation to the allegation that the plaintiff was made to stand naked in the dining room for having been caught wearing lipstick, Mr Hutley for the plaintiff notes (at p 28 of the submissions in reply):
“As the plaintiff bears the onus of proving that the events occurred and as the plaintiff in these circumstances cannot discharge the onus, the plaintiff cannot properly submit that the Court can find that the incidents occurred.”
238 Turning to her principle submissions, the plaintiff notes (at p 81) that there are significant disparities between the plaintiff’s evidence and that of the defendants’ lay witnesses. These disparities, the plaintiff submitted, are to be explained on the basis of:
“The inherent implausibility of the plaintiff’s evidence about standing in the dining hall naked is powerful evidence of her disturbed mind. Were she consciously dissembling she is unlikely to have given evidence which is obviously incredible.”
239 It is on this basis that the plaintiff submits that her evidence should be “taken into account in assessing the plaintiff’s case”. At page 81 of her submissions, the plaintiff states that:
“(a) the plaintiff’s lack of attachment;
(b) the plaintiff’s age at which the incidents which she describes
occurred; and
(c) her psychiatric disturbance”.
240 At page 83 of her submissions she continues:
“The fact that much of her evidence is “unreliable” should not lead the Court to infer that she is lying or that what is described is not what she genuinely believes to have occurred. Her [the plaintiff’s] florid descriptions of punishment and abuse are themselves symptoms of a disorder.”
241 Having detailed the plaintiff’s psychological condition leading up to the giving of her evidence, it is submitted by Counsel (at p 86 of her submissions) that:
“The plaintiff gives florid, exaggerated and, at times, objectively untrue descriptions of punishment to which she was subjected ( throughout her affidavit of 20 November 1996 ) whereas the other children at Lutanda who were subjected to the same strict moral code respond differently.” [my emphasis]
242 I assume here that the reference to attachment disorder refers to the plaintiff’s assertion that she was suffering from an attachment disorder at the time the events complained of occurred and it is this attachment disorder and not the antecedent personality disorder that is the cause of these “distortions”. Accordingly the plaintiff lists the following as examples of distortions put forward as being a result of her attachment disorder:
“If the factors referred to above are taken into account, the plaintiff’s affidavit can properly be seen as a grossly distorted view of reality. Dr Waters was of the opinion that at the time she gave the history to him “she believed that that was the truth” (tr. 86 lines 42-47). The extent of the distortions are indicative of the extent to which the plaintiff was suffering from attachment disorder.”
243 The principal submission of the plaintiff is that these allegations, though not objectively true, represent and are evidence of a distorted recollection of events which are resultant from her suffering from an alleged order of attachment at the time of the occurrence of the events the subject of her evidence. I find there was no such disorder of attachment. Next, the concessions made in the preceding submissions are significant indeed. The concessions made about the proper approach to the plaintiff’s evidence, that it was “unreliable” and it represents a distortion of the objective truth of the circumstances of the plaintiff’s youth at Lutanda, and that the plaintiff presents often “objectively untrue” and “exaggerated allegations throughout her affidavit” reflect, in my opinion, deleteriously on the reliability and credibility of her evidence generally and in particular respects. While the plaintiff’s concessions go only to a number of specific assertions in her evidence, for reasons I will expand on, I am convinced that the force of all these submissions also has a further consequence that the plaintiff’s evidence should be read with care. The plaintiff’s Counsel has addressed many significant specific allegations of the plaintiff conceding at the end of the day and in the face of contradictory evidence from Lutanda witnesses which I accept, that they are not evidence of the objective truth of Lutanda. However the consequences of the her concessions as to the use of her evidence stretch beyond merely those specific concessions. In my view they adversely affect her reliability and credibility save in respect of certain matters later identified by me. 244 During the course of the defendants’ oral submissions I put a number of questions to the plaintiff’s counsel as to the reliance placed by the plaintiff on her affidavit evidence. The following exchange is recorded (at T 721-2) with Miss Adamson for the plaintiff regarding the plaintiff’s characterisation of Lutanda as a “cruel and violent place”:
(i) the allegation (at p 86 of her submissions) that she was required by Mrs Buxton to stand in the corner for several hours as punishment for cleaning her glasses and the allegation that she was made to stand holding the glasses above her head for 4-5 hours.
(ii) the allegation (at p 86 of her submissions) that the plaintiff was known by a number and not a name.
(iii) the allegation (at p 87 of her submissions) relating to Miss Simpson breaking her wrist and collar bone.
(iv) the allegation relating to being made to stand naked in the dining hall for wearing lipstick. This is described by the plaintiff in submissions (at p 87) as “inherently and obviously implausible”
(v) the allegation (at p 88 of her submissions) that the plaintiff was given morphine to shut her up after receiving a beating was called “incorrect”.
245 Again (at T 726), counsel for the plaintiff, Miss Adamson, clarified this concession by saying that “the allegations of sexual abuse” included all the allegations of sexual abuse asserted or alleged by the plaintiff in evidence:
“ HIS HONOUR: I tell you the plaintiff will be hard-pressed to make good that claim. To the extent that it is so asserted that there was a numbers regime I think there is difficulties on the evidence of the plaintiff there.
ADAMSON: Yes, for a person such as James Frame and many of the witnesses you have see it was obviously a very happy caring place. But your Honour has seen what we have put in writing as to the effect on the plaintiff.
HIS HONOUR: Maybe her perception is absolutely totally wrong and she is not reliable and credible on that at all for reasons which she stated.
ADAMSON: Her perception is not put forward in that regard as evidence of the objective truth of Lutanda.
HIS HONOUR: The objective truth seems to be almost one way, or at least in many respects.
ADAMSON: All the Crown witnesses thought it was a lovely place and felt that they were part of a family when they were there, that’s correct . [my emphasis]
HIS HONOUR: Do you still make assertions of allegation of sexual abuse?
ADAMSON: In light of submissions we have put as to the plaintiff’s credibility we can’t put those and we don’t.
HIS HONOUR: Indeed I think that is the most proper attitude, the allegations of sexual abuse just cannot run.
ADAMSON: Certainly not in light of the expert evidence.
HIS HONOUR: You concede that.
ADAMSON: Yes, your Honour.
HIS HONOUR: Indeed you have already conceded that. It is important when having this discussion that sometimes the concession be heard by many so there can be no doubt to the form of the content of the concession and what is conceded ie: that you don’t maintain the allegation of sexual abuse.
ADAMSON: No, your Honour.”
246 Subsequent to this, counsel for the plaintiff was singularly asked whether the plaintiff pressed the allegation relating to plaintiff being made to stand naked in the dining hall. Miss Adamson, counsel for the plaintiff replied:
“ HIS HONOUR: So the allegations of sodomy, gang rape and sexual misconduct on the part of staff members, the sexual misconduct of staff members, they are not pressed any longer in terms of having occurred.
ADAMSON: That’s right.”
247 Counsel for the plaintiff was singularly asked whether they pressed the allegation relating to the use of kerosene for the delousing of hair and about the allegation that the plaintiff was injected with morphine to sedate her. Counsel conceded similarly that neither was relied on as objectively true. 248 One final exchange is worth setting out between myself and Mr Hutley for the plaintiff. In oral submissions in reply the following exchange is recorded (at T 785):
“ ADAMSON: No, that is not pressed and that is in our written submissions. I don’t know that I wish to say any more than what appears in the written submissions.
HIS HONOUR: I wouldn’t accept her on that.
ADAMSON: No it is obviously completely implausible and incredible and it is not put forward by the plaintiff by her counsel as being objective truth.”
249 In both their written and in their oral submissions, counsel for the plaintiff concede that the plaintiff’s evidence as to various allegations made in respect of life at Lutanda are not relied on as being to use their words, “objectively true”. They are not put as being objectively true and, indeed, are conceded as being objectively untrue. Some matters, as are revealed above, are the subject of specific concessions as being untrue, while in general all matters are submitted as being in some sense distorted by the plaintiff’s medical condition. They are relied on instead as being evidence of an attachment disorder suffered by the plaintiff at the time the events the subject of her recollection, occurred. This attachment disorder, it is submitted was subsequently to develop into a borderline personality disorder in the plaintiff’s teens and later. In this respect much of the plaintiff’s evidence is affected by the plaintiff’s concessions. I reject each of these submissions. 250 It is appropriate to note that these concessions by the plaintiff are made in respect of events that occurred over 40 years ago. The plaintiff has had considerable latitude during the trial to tender evidence in support of her case. She has had every opportunity to provide evidence for her claims and I have taken an inclusive attitude to all evidence tendered. In this respect it is appropriate to note that, in relation to the allegations of sexual abuse, despite a number of visits by the plaintiff to Dr Waters between July 1991 and 1997, the first occasion of there being recorded allegations of sexual abuse was in October 1997. Dr Waters gave evidence that prior to that time the issue had not been raised even though it was usually something about which questions would have been asked by a psychiatrist in obtaining a history. Additionally, no allegations of sexual abuse were made during the eight or so visits to North Ryde Centre between 1962 and 1965. This was despite every opportunity to talk about it (see the extensive notes from the hospital). 251 In respect of the discipline and punishment of the plaintiff at Lutanda, a relevant history appears in the nurses notes at North Ryde in June 1963. The entry shows that the plaintiff reported that punishment at Lutanda consisted of learning a chapter of the Bible, standing in the corner and reading the Bible and the reduction of privileges. At no time does she make mention of corporal punishment. 252 In respect of the care received by the plaintiff at Lutanda, the plaintiff told her parole officer, Miss Barnett, recorded in her report dated 1 March 1962, that she received good physical care but that the rather rigid behavioural requirements and sharp curtailment of school activities to a limited area motivated her from the age of twelve to run away from the home on several occasions. Miss Barnett considered (at p 3) that the plaintiff showed a marked absence of socially accepted moral standards, showed strong resentment towards any form of authority and had mistrust and bitterness towards the world which she believed had let her down. The plaintiff made none of the serious allegations to Miss Barnett that she made throughout her affidavit. She had every opportunity to do so. Nor did she make any of these allegations when she saw Dr Cooley from the Child Guidance Clinic in 1960. Again, she had every opportunity to do so. I also reject the plaintiff’s claim that she received corporal punishment at Lutanda. 253 The plaintiff cannot, by such a forensic submission, avoid the result that in consequence of these concessions, the Court should receive the plaintiff’s evidence with significant doubt as to its reliability and give such weight to it as in the circumstances is appropriate. I turn to my findings on the plaintiff’s credit.
“ HUTLEY : I am looking at the discussion between your Honour and my learned junior at page 721 and 722 and I don’t think it is any different with what I am putting to your Honour.
What we say is that I cannot and do not put that your Honour could find that some of the sexual matters had to do with sexual assaults.
HIS HONOUR: Let us hear the way you put it.
HUTLEY: Some of the matters which were the subject of contest from witnesses who denied specifically my client’s version I would have thought likely to conclude that my client’s version is wrong.
HIS HONOUR: An untruth?
HUTLEY: Untruth in the sense of being false, not perjured.”
254 The plaintiff’s submissions accept that there are significant disparities between the plaintiff’s evidence on the one hand and that of the defendants’ lay witnesses on the other. These disparities between the plaintiff’s recollection of events at Lutanda and the objective reality of the situation are sought to be explained on the basis of the three matters mentioned in submissions, namely:
Findings in Respect of the Plaintiff’s Evidence:
255 The plaintiff goes on to submit that these matters should be taken into account when assessing the plaintiff’s evidence. Indeed they have been considered by me. In considering them I have come to the conclusion that they do not have the effect urged for by the plaintiff and I reject the plaintiff’s submissions. 256 The plaintiff gave a lengthy history of her upbringing and psychological health to Dr Waters in July 1991. At that time the preparation of this case appears to have been on foot. Dr Waters, whose evidence has caused me concern, knew he was being brought in to assess the plaintiff in connection with what he thought was a “stolen generations” test case. He said in cross-examination (at T 94) that he had read newspaper reports about this being one of the first “stolen generations” cases. Dr Waters gave evidence (at T 86) that he did not really believe that the plaintiff’s evidence was the product of delusions. While some of the plaintiff’s history may have suffered from vagaries of memory, he said that he believed that the history given by the plaintiff was what she believed to be the truth at the time it was given. 257 It was on the basis of the substance of this history that the plaintiff affirmed the contents of an affidavit dated 20 November 1996 which has already been set out in considerable detail. There is nothing to suggest that the plaintiff did not know what she was affirming in the 15 page affidavit. Her evidence was well considered and detailed, and what was asserted appears, as I have said, to have been carefully asserted. These same remarks, in my view, apply a fortiori in respect of her further affidavit in reply affirmed on the 20 February 1998. That affidavit, in terms, affirms the allegations and evidence given in her principal affidavit. The affirmation of her evidence in her second affidavit is considered affirmation, with the plaintiff having given consideration to the various rebuttal affidavit evidence of the defendants’ lay witnesses. 258 I do not accept that the plaintiff can seek to avoid the adverse consequences of incorrect assertions of such a considered nature. The affirming of incorrect allegations in this case by the plaintiff adversely impacts upon her credibility and reliability both generally and in particular respects. Further, this consequence cannot be avoided by the submission that the incorrect assertions are to be seen as a product of her illness and indeed further proof of her illness. First she has relied upon the allegations as objectively true. When proved otherwise she seeks to avoid the consequences of their rejection by the inventive argument that the unproved allegations are a product of a mental illness and or proof of it. I reject this forensic submission. Further, even were there to be alternatively a finding that the allegations are the product of a disorder (which as I have said I do not find), such would in any event, cast doubt upon the reliability of the plaintiff’s evidence. 259 I specifically find that these distortions were not a product of an alleged attachment disorder (which she did not have). In so far as these conceded allegations are not correct or objectively true in the circumstances, the plaintiff cannot escape the consequences of such a finding in turn affecting her credibility and reliability generally. Some of those against whom many of these serious allegations have been made, as the evidence shows, are deceased or elderly persons. In the circumstances, they and Lutanda are entitled to a finding that preserves their good names and reputations. 260 The plaintiff has further sought to explain away some of these serious allegations by alternatively suggesting that if not the product of her borderline personality disorder, they are not pressed as true because they were not proved to the level of the Briginshaw (supra) standards. I reject that attempt by the plaintiff to explain away the “untruths” which I find impact on her credibility and reliability. 261 I do not find that the plaintiff lied in respect of these allegations. The fact that a witness is unreliable does not give rise to a view that a witness is lying. As I have said, there is a distinction between rejection or evidence of a person and a positive finding that a person deliberately lied: Smith v NSW Bar Association (1992) 176 CLR 256 at 268-9. I have not had the opportunity of seeing or hearing the plaintiff as she was unable to give evidence at the trial. The fact that, on the plaintiff’s concessions, much of the plaintiff’s evidence in respect of Lutanda is “unreliable” does not lead to the inference she was lying. It rather leads merely to the conclusion that in the circumstances what is conceded to be objectively untrue is not to be found as being untrue due to any one or more of the matters submitted by the plaintiff as the source of her distorted memory, namely her lack of attachment, her young age at the time the events complained of occurred or any alleged psychiatric or psychological disturbance. Not having seen or heard the plaintiff, the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 and State Rail Authority v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 relating to the trial judge’s advantage in appraising demeanour do not arise. 262 I stress again that the concessions made by the plaintiff were in respect of several but not all of the plaintiff’s evidence. Much of the plaintiff’s affidavit stands to be considered against the background of the whole of the evidence and I will turn to consider that in due course. Notwithstanding this, my conclusion is that the plaintiff’s evidence generally, even where not openly conceded as being untrue, should be treated with care. I accept the submission of the defendants that the plaintiff’s evidence should be looked at with some care, particularly when it is not supported by other evidence. The plaintiff (at T 726) conceded that, if I found that the allegations of sodomy, gang rape and sexual misconduct, having not been pressed as having occurred, were not the product of a disordered mind, then the affirming of those allegations could be utilised against her in respect of her credit and reliability. Since I find that they were not a product of a disordered mind, I find that these allegations reflect adversely on the plaintiff’s credit and reliability including as a historian so far as she is a historian giving a history to be relied upon as both her evidence and by the medico-legal experts qualified by her to give evidence. That is my finding on the plaintiff’s evidence. 263 Having said that, this does not alter my acceptance of the plaintiff’s history as to her conception and parentage relayed to her by her mother and repeated to Dr Waters in 1991 and reflected in her affidavit. Nor does it alter my acceptance of the plaintiff’s memory of life at Bomaderry as recorded in Dr Waters history and reflected in part in her affidavit or as to her dealings with Sister Saville and later Miss Atkinson. I also accept her history that her mother did visit her from time to time at Bomaderry, which is supported by her affidavit claim that when she met her mother, her mother said she had visited her at Bomaderry.
(a) the plaintiff’s lack of attachment
(b) the plaintiff’s age at which the events she described occurred;
and
c) her psychiatric disturbance.
264 A large quantity of evidence was tendered throughout the course of the trial both by the plaintiff and the defendants relating to the plaintiff’s upbringing while she was at the homes, Bomaderry and Lutanda. That evidence consisted of affidavit evidence and oral evidence in some cases. Some witnesses, because of age or distance, were unable to attend and their affidavits were read in the proceedings. Many volumes of material, affidavit and otherwise, were admitted into evidence in respect of these matters. Included in the evidence were numerous affidavits sworn by witnesses particularly those involved with plaintiff whilst she was at Lutanda. 265 The affidavit evidence can be broadly separated into two categories. The first category of evidence is the evidence of the surviving adult members of the staff at Lutanda. The second category of evidence is evidence that comes from children who are contemporaries of the plaintiff and who, with the exception of one witness, Ms Christie, on whom the plaintiff relies, were all resident at Lutanda during all or some of the period of the plaintiff’s care. 266 It is appropriate to set out some of the history of those who gave evidence. The plaintiff was admitted to Lutanda on 16 April 1947. At that time Miss Dalwood was in charge of Lutanda and worked as Matron. After her death in 1950, Mr Murray assumed the role of Superintendent at Lutanda, having done so at the specific request of Miss Dalwood just prior to her death. Mr Murray remained the Superintendent until replaced by Mr Middleton in 1956. Mr Middleton in turn held that position until 1959 when he was replaced by Mr Reid. The plaintiff was discharged on the 31 July 1960. 267 Miss Dalwood undertook in addition to the role of Superintendent, the position of Matron from the time of the founding of Lutanda again until her death in 1950. Mrs Buxton (nee Parker) acted as Matron from 1953-6 having prior to that, worked at Lutanda as a housekeeper and as a carer for the girls. Evidence was given, which I accept, to the effect that Mrs Buxton was a qualified nurse. Evidence given in cross examination by Mrs Buxton was that she held three certificates in nursing at the time she was Matron at Lutanda, being general, midwifery and infant welfare certificates. Mrs Middleton was Matron between 1956-9 during the period in which her husband was Superintendent. Evidence was given, which I accept, to the effect that Mrs Middleton was a registered nurse during the period she served as Matron at Lutanda. Both Mrs Middleton and Mrs Buxton gave evidence by way of affidavit and in oral testimony. 268 At this point I should make some brief comments on the witnesses Mrs Buxton and Mrs Middleton. These two witnesses, particularly, on the plaintiff’s case, were the subject of “strong” submissions as to their lack of reliability. The plaintiff made submissions (at p 103 of their written submissions) that the staff at Lutanda were, inter alia, prejudiced by racial bigotry, at least in the case of Mrs Middleton and prejudiced by religious beliefs which led them to “pseudo solutions” such as prayer, rather than psychiatric treatment. I reject this submission that these witnesses or any others were prejudiced in their attitude to the plaintiff because of racial bigotry or otherwise. I further reject the submission in respect of their being a preference of “pseudo solutions” as being totally unfounded. I will return to the particulars of the contest of credit with Mrs Middleton later. It need only be said here that I have had an extended opportunity of hearing and seeing these two witnesses, factors which I take into account in assessing their evidence. They were the subject of challenging and extensive cross-examination. They were cross-examined comprehensively about their attitudes and recollections and nothing I have seen leads me to disbelieve their evidence or to make a finding such as the one submitted. I feel that I can safely rely on their evidence. 269 Other carers also gave evidence. Mrs Milton worked at Lutanda from 1944-48 in performing general household work and in looking after the girls. Mrs Hancock worked at Lutanda looking after the care of the boys from about 1953 to 1955, part of that time also being spent as the cook at Lutanda. Mrs Talbot worked at Lutanda from July 1953 to November 1957. Initially she was in charge of the boys group but due to her previous experience in England with toddlers and babies she soon became responsible for seven young children. Miss Simpson was a live-in worker in Lutanda from December 1956 to December 1965 working in the kitchen and looking after the boys then later, the younger girls. She returned in 1956, then with her husband to work as a cook for a short period. These four witnesses gave evidence at trial by way of affidavit and all but Mrs Talbot gave oral evidence. I accept these witnesses. 270 In addition to these workers is the evidence of Lucy Moorhouse. Miss Moorhouse was placed into the care of Lutanda in January 1935 as a result of crippling arthritis suffered by her mother. She remained at Lutanda till she left in 1944 to pursue work. While working away from Lutanda she made a habit of paying visits each Sunday to Lutanda and thereby maintained a good knowledge of the work and operation of the Home. In 1954 Miss Moorhouse returned for a period of eight months to serve in caring for the children and to relieve some of the staff. The evidence showed that at that time she was a trained nurse. She worked, in part, in assisting Mrs Buxton with the care of the girls. Miss Moorhouse has subsequent to her time spent at Lutanda prepared documentation setting out the history of Lutanda including a history of relevant period of the plaintiff’s residence. Miss Moorhouse gave evidence by way of affidavit and by way of oral testimony. In the delivering of her evidence Miss Moorhouse proved to be a highly credible witness and a genuinely compassionate lady. Her accurate memory and clear recollection was demonstrated in oral evidence by her ability to accurately recall the detailed history of the relevant period and the people who lived at Lutanda during that time, some forty years ago. Her evidence is credible and reliable and I am satisfied that I can safely rely on it and I accept it. 271 Much has been said during the course of this trial and in submissions about the women who worked at Lutanda and who undertook the care of the plaintiff. In appraising these witnesses, in my estimation from what I have seen and heard of them, they appeared to me under examination and cross-examination as caring, devoted, considerate, religious and charitable women. They were unpaid or relatively unpaid workers, dedicated to their roles and to the task of bringing up other people’s children in an institutional environment with all the attendant problems arising from that situation. In many cases they had practical training and were concerted in giving attention to their responsibilities. They sought to give warmth, dedication, trust, kindness, affection and protection to children in their care in undoubtedly difficult conditions flowing from the constraints of caring for a child in an institutional home. Discipline and religion was also appropriately provided. 272 Evidence was also given by other witnesses who were resident at Lutanda at the same time as the plaintiff. I will turn to each relevantly in due course. One further witness that needs to be mentioned in Mr Sattler. Mr Sattler was one of three witnesses in addition to the plaintiff who gave evidence by way of affidavit but did not give oral evidence in the course of the trial. Mr Sattler was appointed to the Board of Directors of Lutanda in 1948 and served in that capacity until 1981. He gave evidence, to which I will refer to in due course, on which the plaintiff relies to support several significant aspects of her case including her contention that she cut her arms in an act of self-mutilation during the period in which Mrs Middleton was Matron. 273 The evidence of the defence lay witnesses admitted at trial is in direct contrast to that of the plaintiff. In general, their evidence presents a distinctly happier and more favourable picture of life at Lutanda than that which appears on the plaintiff’s case. The plaintiff presents a picture of life at Lutanda as, inter alia, a cruel and uncaring place. The plaintiff relies in part on the evidence of Mr Sattler and Miss Christie to support her view. For reasons that will appear, I do not accept the evidence of Miss Christie or Mr Sattler so far as it is inconsistent with the credible evidence of the defence lay witnesses. It was conceded by the counsel for the plaintiff, Miss Adamson, that the general weight of the defence lay witness evidence was that Lutanda was not like the plaintiff had described, as cruel and uncaring, but was considered by them as a caring environment akin to a family. In response to a question from the bench, counsel for the plaintiff Miss Adamson conceded that for people such as Mr Frame and many of the other witnesses, Lutanda “was obviously a very happy, caring place”. Miss Adamson also conceded that all the Crown witnesses (who I do accept) thought that Lutanda was a lovely place and felt that they were part of a family when they were there (at T 721-2). Further to these concessions, which I accept, I would note that it is clear on the evidence that these witnesses specifically reject, in terms, all of the serious allegations made by the plaintiff. 274 In considering the issues in this case, I have had regard to all the evidence including that of the Lutanda witnesses. I have also had regard to the evidence of the plaintiff, which, as I have said, I feel it necessary to treat with some care. In fairness, in respect of a case of this nature, concerning events so distant for the witnesses giving evidence, I have had regard to the fact that recollection of childhood events may be distorted by various factors including the passage of time: Longman (supra). All this said, I find that the evidence of the Lutanda witnesses was generally credible and reliable and I accept it accordingly. In the present section I turn now to their evidence, which I have relevantly set out, and, where necessary, I have made findings of fact on the various allegations made by the plaintiff based on the whole of the evidence.
The Lutanda Witnesses:
275 One issue upon which both sides have made extensive submissions was the characterisation of the behaviour of the plaintiff during the relevant years of her stay at both Bomaderry and particularly at Lutanda. The plaintiff has sought to submit that the even while at Bomaderry, from the time when the plaintiff was one month old till she was four and half years, she was a “troublesome” child and known as such. The nature of this submission for the purposes of the plaintiff’s case is set out in the following passage in the plaintiff’s submissions (at p 36):
Nature of the Plaintiff’s Behaviour at Bomaderry:
276 This submission for reasons that appear is rejected. 277 It was also part of the plaintiff’s case, indeed a significant part of it, that in light of her alleged troublesome behaviour and in consequence of these being “childhood manifestations” of disorder, the plaintiff should have been referred to a Child Guidance Clinic at an early stage or at least certainly during her stay at Lutanda. The expert evidence led in the plaintiff’s case presents a scenario based on the effect of three possible hypothetical visits of the plaintiff to a Child Guidance Clinic being visits in 1947, 1953 and 1959. Evidence is presented in the plaintiff’s case as to what the plaintiff would have done on those occasions had a visit been arranged, what the plaintiff would have said and what treatment would have resulted. 278 It is perhaps appropriate at this time to make fuller reference to the nature and history of Child Guidance Clinics as it appears on the evidence. The significance of a potential referral to a Child Guidance Clinic, on the plaintiff’s case, is that after such a referral she would have received treatment which would have reversed her disorder which was undiagnosed and unrecognised by those who had her immediate care. The Department of Eduction/Public Instruction conducted Child Guidance Clinics in New South Wales and had done so since 1936. The Child Guidance Clinics developed from the practises of the School Medical Service. The history of the Child Guidance Clinic is found in the Annual reports of the Education Department. The 1952 Report of the Director General of Public Health (at Vol 18, p 4419) states relevantly:
“Mr Sattler deposes to the circumstances that the plaintiff was known to be a “troublesome child” even before she arrived at Lutanda (see paragraph 3 of his affidavit). This is the only evidence of the plaintiff’s behaviour at Bomaderry. The evidence of Dr Katz is to the effect that it is likely that the plaintiff had already suffered a disorder of the development of attachment while at Bomaderry and the childhood manifestations of the disorder were reflected in the form of troublesome behaviour.”
279 There is no evidence that Lutanda ever received a notification of the type referred. There is no evidence that the plaintiff displayed at school a departure from normalcy in her health, either mental or physical, in the eyes of her teachers or in the course of a medical inspection. There is no evidence of adverse reports on her behaviour nor any reports that her education was suffering in any way. 280 The development of the Child Guidance Clinic was outlined relevantly in the evidence as follows. In 1936 the first Child Guidance Clinic was established in Sydney with a second following in 1939. By 1945 there were three Child Guidance Clinics in Sydney. In 1946 the fourth Child Guidance Clinic was established with a fifth being established in 1954. From 1946-48 some 2,000-2,500 new cases were seen annually and the Child Guidance Clinics, and between 1954 and 1957 some 1,700-2,462 new cases were seen by Child Guidance Clinics in Sydney. In 1953 of the total 1,757 cases seen at the four Child Guidance Clinics administered by the School Medical Service, 55% were referred by either the Children’s Court or Child Welfare Department. Only 20% of cases were by personal application of parents and one seventh came “direct” on referral by the Department of Education through teachers and school counsellors whilst others came from hospitals and social agencies. 281 The 1974 Minister for Instruction Report indicated that Child Guidance Clinics number 1, 2 and 4 examined children upon referral from various sources which included the Child Welfare Department (including Children’s Court), teachers, school medical officers, parents, other branches of the Department, Soldiers, Children’s Education Board, NSW Society for crippled Children and other social agencies. No. 3 Child Guidance Clinic undertook the examination of boys admitted to the Metropolitan Boy’s Shelter and to Yasmar Hostel as well as boys referred by the Children’s Court. 282 The reports make clear that referrals could thus be by persons other than parents (or institutions), namely, teachers or school medical officers. In the instant case, there were no such referrals. The School Medical Services (after 1946 carried out under the control of the Director of Department of Public Health) had medical officers who visited children in the schools. The Education Department itself provided educational and vocational guidance tests. Careers advisers also provided services within schools. 283 Evidence was also lead as to the nature and operation of Child Guidance Clinics. Mrs Bull who worked at a Child Guidance Clinic as a social worker during the relevant period (one of a team of three being a psychiatrist, psychologist and social worker who staffed each Clinic) worked in one of the Clinics in which the attending child psychiatrist was a certain Dr Jennings. Mrs Bull gave evidence in relation to the operation and activities of the Child Guidance Clinics and of the role of a social worker in those clinics. The subject of Child Guidance Clinics and the role of the psychiatrist, psychologist and social workers was also discussed in Professor Dawson’s book “Aids to Psychiatry (1942)”. 284 Dr Ellard, a psychiatrist, also gave evidence. Though he was not a child psychiatrist, it is clear from his evidence that in the 1940’s and 1950’s, and indeed even some time later, there were relatively few specialist child psychiatrists. Psychiatrists who did specialise in child psychiatry at that time were mostly not in private practice but rather worked in the field of public health, such as in Child Guidance Clinics. 285 The Child Guidance Clinics that were in existence during the 1940’s and 1950’s were all located in Sydney. In the 1950’s the population of New South Wales was said to have been about 3 million people. The AWB used the facilities of the Child Guidance Clinics for children under its control whether they lived in Sydney or in places remote from Sydney. This occurred when a judgment decision was made by a responsible adult staff member that a child should be referred to a Clinic. One such referral, the evidence showed, occurred in respect of a child known as “K”, to a Child Guidance Clinic in 1951-2 by the AWB because of a scholastic handicap. 286 I propose to quote further, and at some length, from the 1952 Report of the Director General of Health. I believe it accurately reflected the situation with respect to the nature and operation of Child Guidance Clinics. It also indicates the respective roles of the “team” members. The social worker’s role is identified in terms of obtaining a detailed history from the “parent” with regard to the general family situation and obtaining material relevant to the common mental background including information regarding the child’s physical and emotional development. It is important to emphasise that the source of the history is the “adult carer”, who clearly has made value judgments and assessments of the child’s behaviour. 287 The 1952 Report is in the following terms:
“A scheme of medical inspection of pupils in all schools administered by the Education Department, and the majority of other schools in the state, is provided by the School Medical Service (a division or part of the Department of Public Health)… It may be said that the primary object of the School Medical Service is the medical examination of children to discover any departure from normal in the health of children, either physical or mental and to notify the parent or guardian accordingly in order that the child may be further investigated to determine the need for treatment… Treatment is accepted as responsibility (sic) of the practising medical profession.”
288 Where there is conflict as to Child Guidance Clinics between Mrs Bull and Dr Katz, and the views expressed in the 1952 Report, I accept the contemporaneous evidence contained in the report. It should be noted that what appears from the 1952 report is that there were waiting lists for those who were considered by their carers to be in need let alone those who were not considered to be in need, such as the plaintiff. 289 There is no evidence that throughout even her stay at Lutanda, that any school teacher or School Medical Officer at any time made adverse reports in respect of the plaintiff’s behaviour, or recommended or suggested that the plaintiff should be seen by a Child Guidance Clinic, or, indeed, should be referred for “help” or assistance to a Doctor, psychiatrist or anyone else in the behavioural science area. The practical, experienced and trained Lutanda staff, particularly the qualified and trained nurses, Mrs Buxton, Mrs Middleton and Miss Moorhouse, individually did not consider that the plaintiff’s behaviour or conduct was such as warranted third party intervention whether by referral to the Honorary, Dr Lovell, or at all. They did not receive complaints in respect of adverse behaviour or suggestions from any school teacher or at all recommending either a Child Guidance Clinic referral or referral to another third party. 290 As to practical matters, I would note that whilst the plaintiff was at Lutanda from 1947 to 1950 a train trip to Sydney took some two an a half hours each way and Lutanda had no car. When at Pennant Hills, the trip to Sydney would have involved a walk of some distance to Pennant Hills railway station followed by a train trip to the city. Indeed, to have personally taken a child to a Child Guidance Clinic midweek would have involved the interruption of schooling for the plaintiff and presumably would have taken one carer away from the rest of the children for the day for no apparent reason on my findings. Nothing is said as to what a child who is a teenager might have thought about being taken to a Child Guidance Clinic to see a psychiatrist, psychologist and a social worker. 291 Returning to the plaintiff’s submissions as to the plaintiff’s behaviour warranting a referral to a Child Guidance Clinic, it is the plaintiff’s case that evidence of her lack of attachment was to be found in her alleged troublesome nature even while she was at Bomaderry. Numerous witnesses were cross-examined extensively by counsel for the plaintiff, Mr Hutley as to the plaintiff’s behaviour and it was put to a number of witnesses that the plaintiff was a troublesome child. 292 The plaintiff seeks to support this claim by relying, as I have said, on the evidence of Mr Sattler. Mr Sattler’s evidence was that the plaintiff was troublesome and the most difficult child he had ever known. His remarks come in the context of his recollection of the plaintiff’s arrival at Lutanda. Mr Sattler states at para 3 of his affidavit sworn in November 1997 that he can recall when the plaintiff arrived at Lutanda in 1947 aged six years. It was his recollection that she was brought to Lutanda from a private home and was left at Lutanda by a couple who he said had had care of her. His recollection was that they sent her to Lutanda as they found her too troublesome. He didn’t recall that she was brought to Lutanda because she had fair skin. 293 The facts of the plaintiff’s arrival at Lutanda differ substantially from Mr Sattler’s evidence. The plaintiff, as I have said, came not from a private home but was transferred from Bomaderry in 1947. At that time the plaintiff was four and a half and not six. Mr Sattler seems to be unaware, upon his recollection of events, that the plaintiff spent time at Bomaderry. Additionally, Mr Sattler did not recollect that one of the reasons for the plaintiff’s transfer to Lutanda was that she was “fair skinned”. In a letter from the then Secretary of the UAM, Miss Turner, to the then Superintendent of the Aboriginal Welfare Board, Mr Lipscomb, Miss Turner expresses her earnest desire to have the plaintiff, in her words, “a white child”, transferred to Lutanda quickly. The application form for admission to Lutanda also suggests that the reason for the transfer was in accordance with the then policy of assimilation, “to take the child from association with Aborigines as she is a fair-skinned child”. Mr Sattler seems genuinely unable to remember these details of why and from where the plaintiff was transferred to Lutanda. It is against this background that Mr Sattler makes his statement that the plaintiff was a troublesome child even before she arrived at Lutanda. 294 I do not accept his evidence that the plaintiff was known to be troublesome before her arrival at Lutanda and so accordingly I reject the plaintiff’s submission that it constitutes proof of the plaintiff’s disturbed state prior to her arrival at Lutanda. Mr Sattler’s recollection about the plaintiff’s arrival at Lutanda in material and significant respects is contrary to the established evidence that I have accepted. He makes no reference to Bomaderry and indeed I infer that his view of her behaviour, which I do not accept, is not based on any specific knowledge he had of her stay at Bomaderry. As I said, he appears, on his recollection, not to remember her stay there. 295 I reject also the suggestion by the plaintiff in submission that Mr Sattler’s evidence is the only evidence going to the question of the plaintiff’s behaviour at Bomaderry. In a report prepared by Miss English, an Inspector of the AWB, from visits taken on 22 and 23 April 1947, just one week after the plaintiff left Bomaderry, no mention is made of any children present or immediately past who were troublesome. I quote from her report dated 18 June 1947:
“There are four Child Guidance Clinics administered by this Service. One clinic is located at the Yasmar Boy’s Shelter for investigation of boys referred from Children’s Court. Girl delinquents are referred to the other three clinics. These latter clinics also accept cases referred from various sources in the community.
The clinics have continued to function along the generally accepted lines of child guidance clinic principles, as in former years. Each case is investigated by the psychiatrist, the psychologist and the social worker working as a team. The clinic officers undertake the investigation of children and give appropriate advice and treatment where necessary. Children are referred for various reasons, eg: maladjustment, delinquency, abnormal or asocial behaviour. Some of the cases referred to the clinic are not really suitable for clinic investigation, but due to lack of more adequate methods of screening this appears to be unavoidable at present.
In all clinics there is a waiting list, and because of this it is difficult to arrange appointments in terms of their urgency . It is apparent that consideration must be given to the establishment of additional clinics in the metropolitan area, and clinics also in the larger country centres. The situation could also be improved by the appointment of additional social workers to each clinic. Steps have already been taken in this regard.
All children are submitted to intelligence test suited to their age and maturity. Observations as to the child’s personality and general demeanour are made by the psychologist in the course of these tests. The social worker obtains a detailed history from the parent with regard to the general family situation, and obtains material relevant to the environmental background, including information regarding the child’s physical and emotional development. The psychiatrist, armed with information from the psychologist and the social worker, is then in a position to interrogate the child and interpret his problems to the parents in terms of suggested treatment and attitudes. Individual responsibility is encouraged in older children. “Follow-up” work is necessarily restricted by the limitation of the number of social workers, but it must be accepted as an important function of a psychiatric clinic. However, in many cases the social worker does make visits to the home and the school.
Parents and children are encouraged to revisit the clinic for further discussion and report as to progress. In some cases, where the child is more particularly involved emotionally and a neurotic pattern is well established, parent and child report weekly for continuing therapy. In selected cases play therapy is used as a medium for diagnosis and treatment.
A pleasing feature is the continuing number of personal applications made privately by concerned parents, who are likely to be more cooperative in their attitude. The use of the clinic by medical practitioners is a further indication of their acknowledgment of the value of child guidance clinics. The wide range, as shown in the age group, provides a good cross sampling of a variety of problems and enriches clinical experience.
Boys are referred to the Yasmar clinic from the metropolitan and country Children’s Courts. They are on remand, and the majority are detained in either the Yasmar or Albion-street Shelter. If they are not detained at a shelter they attend the clinic from their homes during the remand period. A small number not on remand are referred by the Child Welfare Department for diagnostic interviews and reports.” [my emphasis].
296 From Mrs English’s report, it appears that the Home at Bomaderry was well respected in the nearby community to the extent that it received “gratifying financial support from outside sources”. Her report presents a picture of a Home of clean, sufficiently fed and clothed children, making specific reference to their neat and tidy appearance. Mrs English was also generally satisfied with the good health of the children. 297 Notwithstanding the plaintiff’s transfer to Lutanda one week earlier, the timing of the report by Mrs English, being in such proximity to the plaintiff’s stay at Bomaderry, is such that I am of the opinion that is it reasonable for me to infer that the report reflects the conditions prevailing with respect to the plaintiff at the time. The plaintiff was not a “troublesome” child in any sense of the word. As to the issue of behaviour, the Matron, as stated, told the Inspector there were no “problem cases”. As to health, the children, were all generally in good health, food was nourishing and medical care was available. Where necessary, specialist medical treatment would be provided by the Board on the referral of the regular general practitioner. Indeed, the very application form for Lutanda completed on behalf of the plaintiff stated the need for a Doctor’s Certificate to be obtained before any child is admitted into Lutanda. I infer that such was given. The plaintiff was accepted into Lutanda. Neither medically, nor in terms of behaviour, am I satisfied that the plaintiff was a “troublesome” child in the manner or of the type that under Dr Katz evidence is suggestive of a developmental attachment disorder. She was not disturbed in my view at all. She was, in my opinion, a normal healthy child at the time of the transfer. 298 I am made more confident in my view that the plaintiff was not “troublesome” by the very act of transfer itself. It was Sister Saville, a carer of the plaintiff at Bomaderry, and on all the evidence a loving and kind lady, who pursued the transfer for the plaintiff from Bomaderry to Lutanda. Sister Saville did so, it seems on all the evidence, in the plaintiff’s best interests and, it is reasonable to infer, did so on the basis of her high regard for the child. It would be incongruous, given the attitude of Sister Saville in her pursuit of the plaintiff’s transfer, to suggest that the plaintiff was nevertheless, a troublesome child. I infer that Sister Saville would conceivably not have taken the action she did if the child were so problematic. 299 It has to be borne in mind that a great motivation for Sister Saville’s act of securing the transfer of the plaintiff to Lutanda was the very fact that Sister Saville herself was leaving Bomaderry. She sought the child’s best interests for the future given the fact that she would no longer be available to personally care for her. There was in fact, as events turned out and for reasons which will appear, bonding and attachment and interaction between the plaintiff and Sister Saville at Bomaderry, until both left. I will return to this matter in the following section. 300 Of relevance, too, to this issue, are records from the UAM’s regular publication, “The United Aborigine’s Messenger”. A relevant section appears in the edition dated 1 August 1948:
“The Matron informed me that the conduct of the children was very satisfactory and that there were no problem cases.”
301 From this extract it appears, in the eyes of the Matron, Miss Darby, that Joy was a good child who loved the Lord. It appears additionally, that she was an intelligent and bright child. No record is made of her being “troublesome”. 302 All of this evidence weighs heavily in favour of the view, as expressed, that the plaintiff, in her time before arriving at Lutanda, could not legitimately be described as a “troublesome” or “problem child” such as to demonstrate to an observer that the child was in any greater need of care than any other child in care at Bomaderry. I am not prepared to accept that the plaintiff demonstrated at Bomaderry behaviour which to an observer obviously demonstrated a need for professional treatment. I find that there is no basis to suggest that the plaintiff was in need of or should have been referred to a Child Guidance Clinic either during her time at Bomaderry, nor, for reasons to be made clear, whilst she was at Lutanda. To the extent that it suggests otherwise, I reject the evidence of Mr Sattler. Indeed I generally reject his evidence. 303 I also reject the evidence of Dr Katz to the extent that the plaintiff had a disorder of attachment including at Bomaderry. There in nothing to suggest any signs of there being such an attachment disorder. The plaintiff’s case in respect of Bomaderry stands in the face of the evidence. I find that there were no symptoms or signs of a disorder of attachment at Bomaderry as suggested by the plaintiff’s expert evidence. There was no warrant for referring the plaintiff to a Child Guidance Clinic in 1947 as again suggested by Dr Katz. His suggestion in 1999 doesn’t accord with the facts in evidence of the circumstances as they existed in the 1940’s. Further, it cannot be assumed that any hypothetical history given at a hypothetical visit to a Child Guidance Clinic or to an AWB staff worker on a visit had one visited, would be any different to that which is revealed on the facts and which I have outlined.
“Joy, four and a half years, with us from the age of four weeks, has recently been placed in another Home. We miss our little Joy: she loved the Lord, and often said so: “I’m on the side of the Lord Jesus. I don’t want to be on the devil’s side.” Joy had understanding beyond her years, and often surprised us with questions and statements.”
304 I have set out extensively my findings as to how the plaintiff came to be at Bomaderry. I have also set out the evidence and my findings in relation to that evidence with respect to the relationship the plaintiff developed with Sister Saville and the care she received from Sister Saville. 305 The thrust of the expert evidence, to the effect that the plaintiff suffered from a deficiency in ‘attachment’ at Bomaderry, is not supported on the plaintiff’s case by evidence of the care or lack of care the plaintiff received whilst at Bomaderry. The plaintiff submits in relation to Bomaderry the following (at p 36 of her submissions):
Nature of the Care received at Bomaderry:
306 I reject this submission that the plaintiff’s evidence be given the meaning attributed to it by the expert evidence. Further, there is the other evidence as to her circumstances at Bomaderry which I have accepted. I have said already and repeat here that I find the history of the plaintiff give to Dr Waters in 1991 reliable where it records the plaintiff expressing feelings to Dr Waters that she had “comfortable, safe memories” of her time at Bomaderry and that she felt that “someone was looking after me”. Further, on my findings, I have found that the plaintiff’s mother did visit her at Bomaderry. This submission that I should read this lay evidence of the plaintiff in a way other than on its terms, as a form of fantasy is speculative. Such a submission instances the difficult task the plaintiff’s evidence has presented me in this case. 307 Notwithstanding this submission, the plaintiff concedes (at p 40 of her submissions) that it does appear that the plaintiff formed some attachment to Sister Saville while she was at Bomaderry and refers to the plaintiff’s own evidence in accepting this fact. This is a finding I make and have made on the evidence, that the plaintiff did form a bond and attachment with Sister Saville whilst at Bomaderry. The plaintiff appears to have trusted Sister Saville and found satisfaction and enjoyment in her relationship with her. Indeed, it is a relationship it seems that was favoured by the plaintiff even later in life where she refers to writing letters to Sister Saville and to receiving visits and phone calls from her. I am further strengthened in my view of the attachment formed between Sister Saville and the plaintiff by the care and concern shown by Sister Saville, as I have mentioned, in assisting the plaintiff’s transfer to Lutanda, a good faith act, legitimately undertaken by Sister Saville in the plaintiff’s best interests. 308 This finding that the plaintiff received care adequate to achieve “bonding” between the plaintiff and Sister Saville is made notwithstanding any suggestion of overcrowding at Bomaderry. The care received from Sister Saville is shown by the plaintiff’s own fond recollections of Sister Saville, both from her time at Bomaderry and afterwards. This finding that the plaintiff received “bonding” with Sister Saville strengthens me also in my immediate finding that the plaintiff did not have a disorder of attachment at her time whist at Bomaderry. I will return to the expert evidence at a later point to address further concerns with the plaintiff’s submission in relation to the plaintiff’s psychiatric history generally and with reference to her disorder of attachment.
“Aside from these documents concerning the entry and departure of the plaintiff from Bomaderry and correspondence relating to overcrowding at that institution and the inferences to be drawn from Mr Sattler’s affidavit there is no evidence apart from the plaintiff’s childish recollection as to her circumstances at Bomaderry. There is some expert evidence to which greater reference will be made below to the effect that the plaintiff’s memories of Bomaderry, and in particular her memories of her mothers’ visit there, may be in the nature of fantasy arising from the plaintiff’s need for a mother.”
309 The plaintiff was admitted to Lutanda on 16 April 1947. On the preponderance of the evidence that I accept it seems that generally at different times throughout the plaintiff’s stay at Lutanda there were in the order of 30-36 children resident at Lutanda under its care. I refer to the evidence of Mrs Hancock, Mrs Tucker, Mrs Middleton and Mrs Oxborrow on this point as to an accurate recollection of the numbers of children in Lutanda at the relevant times. I accept their evidence. 310 Further on the preponderance of the evidence I accept, I find that at any one time during the period from 1947-60 there were probably six if not eight full time live-in workers corporately involved in the care of the resident children. The conditions of licence for Lutanda under s. 28 of the Child Welfare Act set out conditions with respect to staff numbers. The number of workers included the Superintendent and Matron, those who cared for the boys, those who cared for the girls, those who primarily served as cooks, those who primarily served in housekeeping and often a groundsman. In addition it seems that Lutanda and its residents benefited from the kind service of many volunteers over the relevant period, often people associated with the Plymouth Brethren church, who gave of their time and skill in various tasks such as ironing and mending. Mrs Talbot gives this evidence in her affidavit, which I accept:
The General Conditions at Lutanda:
Last Modified: 08/26/1999
Details
- AGLC
- Williams v Minister, Aboriginal Land Rights Act 1983 [1999] NSWSC 843
- Case
- [1999] NSWSC 843
- Decision Date
CaseChat Overview and Summary
The case of Williams v Minister for Aboriginal Land Rights Act 1983 involved a claim brought by the plaintiff, a member of an Aboriginal community, against the Minister for Aboriginal Land Rights, and others, regarding the actions of the Aborigines Welfare Board. The plaintiff alleged that the Board, acting under the Aborigines Protection Act 1909-1943, had breached a duty of care and fiduciary duty in their management and control of the plaintiff when she was placed in their care as a child. The plaintiff sought damages for personal injuries and distress, as well as an equitable remedy. The court was required to determine whether the Aborigines Welfare Board owed a duty of care and fiduciary duty to the plaintiff, whether such duties were breached, and if so, whether the plaintiff was entitled to damages and other relief.
The central legal issues addressed by the court were the recognition of a common law duty of care by the Aborigines Welfare Board towards the plaintiff, the creation of a private right of action under the Aborigines Protection Act, and the existence of a fiduciary relationship between the Board and the plaintiff. Additionally, the court had to consider whether any breach of duty resulted in the plaintiff's injuries and if so, whether the plaintiff was entitled to damages. The court also examined whether the plaintiff's claim for breach of fiduciary duty should be subject to the provisions of the Limitation Act.
The court found that no duty of care was owed by the Aborigines Welfare Board to the plaintiff, and therefore, no breach of duty occurred. Consequently, there was no causation linking the Board's actions to the plaintiff's injuries. The court further held that the Aborigines Protection Act did not create a private right of action. In terms of the fiduciary relationship, the court determined that no such relationship existed between the Board and the plaintiff. The court concluded that the plaintiff was not entitled to damages due to the speculative nature of the claim, and no aggravatory or exemplary damages were awarded. The court also noted the difficulties in assessing expert evidence and the state of knowledge at the time of the events in question. Lastly, the court found that the plaintiff's claim for breach of fiduciary duty should not be subject to the Limitation Act provisions.
The court dismissed the plaintiff's claim in its entirety, finding no entitlement to damages or any other form of relief. The court's decision was based on the lack of a recognised duty of care, the absence of a private right of action under the Aborigines Protection Act, the non-existence of a fiduciary relationship, and the speculative nature of the damages claim. The court's ruling was definitive, leaving no grounds for an appeal based on the findings and conclusions reached.
The central legal issues addressed by the court were the recognition of a common law duty of care by the Aborigines Welfare Board towards the plaintiff, the creation of a private right of action under the Aborigines Protection Act, and the existence of a fiduciary relationship between the Board and the plaintiff. Additionally, the court had to consider whether any breach of duty resulted in the plaintiff's injuries and if so, whether the plaintiff was entitled to damages. The court also examined whether the plaintiff's claim for breach of fiduciary duty should be subject to the provisions of the Limitation Act.
The court found that no duty of care was owed by the Aborigines Welfare Board to the plaintiff, and therefore, no breach of duty occurred. Consequently, there was no causation linking the Board's actions to the plaintiff's injuries. The court further held that the Aborigines Protection Act did not create a private right of action. In terms of the fiduciary relationship, the court determined that no such relationship existed between the Board and the plaintiff. The court concluded that the plaintiff was not entitled to damages due to the speculative nature of the claim, and no aggravatory or exemplary damages were awarded. The court also noted the difficulties in assessing expert evidence and the state of knowledge at the time of the events in question. Lastly, the court found that the plaintiff's claim for breach of fiduciary duty should not be subject to the Limitation Act provisions.
The court dismissed the plaintiff's claim in its entirety, finding no entitlement to damages or any other form of relief. The court's decision was based on the lack of a recognised duty of care, the absence of a private right of action under the Aborigines Protection Act, the non-existence of a fiduciary relationship, and the speculative nature of the damages claim. The court's ruling was definitive, leaving no grounds for an appeal based on the findings and conclusions reached.
Orders
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Background to the litigation
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Evidence
Evidence Before The Court
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