IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

LORNA CUBILLO DG 14 OF 1996

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

BETWEEN:	PETER GUNNER DG 21 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	DARWIN

SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 30 APRIL 1999

The applicants in these proceedings, Mrs Lorna Cubillo and Mr Peter Gunner, have claimed that they are members of "the Stolen Generation"; that is the term that has become well known in its application to part Aboriginal children who were taken from their families and placed in homes and institutions. They have sued the Commonwealth, claiming that it, through its servants and agents, was the party responsible for their removal and detention; it is their case that the removal and detention was unlawful.

The Commonwealth has denied all responsibility. For example, in the case of Mrs Cubillo, the Commonwealth has claimed that she was taken to the Retta Dixon Home for Aboriginal children and kept there by Miss Amelia Shankelton, the Superintendent of the Home. The Commonwealth says that it had no part to play in either her removal or her detention. As for Mr Gunner, it is the Commonwealth's case that he was taken to St Mary's Hostel at Alice Springs with the express consent of his mother. The Commonwealth says that there is a document on the court file that contains the thumbprint of Mr Gunner's mother, indicating her consent.

However, despite its claims that it has defences on the merits, the Commonwealth has submitted that these matters should not go to trial. It has made two preliminary claims.

First, it has argued, as a matter of law, that Mrs Cubillo and Mr Gunner do not have any causes of action against the Commonwealth. Secondly, it raises a question of hardship; it has argued that these proceedings should have been instituted, in the case of Mrs Cubillo, thirty seven years ago, and, in the case of Mr Gunner, twenty six years ago. The Commonwealth's claim is that so much time has now elapsed, so many witnesses are now dead and the memories of those living are now so impaired that it would be manifestly unfair to the Commonwealth if the Court were to grant the applicants an extension of time in which to bring their proceedings.

The decisions that I am about to announce today deal only with the Commonwealth's application that the Court should summarily dismiss these actions; they do not address the merits of Mrs Cubillo's and Mr Gunner's claims nor do they address the merits of the Commonwealth's defence.

I have found that there are some deficiencies in the statements of claim. However, they are not sufficient to justify summary dismissals. Those deficiencies are as follows:

· I find, as a matter of law, that the pleadings do not reveal any act of unlawful delegation of the role and duties of guardian by either the Director of Native Affairs or the Director of Welfare. All references to claims of unlawful delegation are to be excised from the pleadings and the particulars. (par 65)

· The reference in the particulars of claim to "international principles" concerning the advancement and protection of human rights is not appropriate; international treaties are not part of our domestic law and these are not cases where the concept of "legitimate expectation" arises. References to "international principles" is to be struck out. (par 103)

· In my opinion, the present state of the pleadings fails to disclose a compensable claim so far as it alleges that there have been losses of entitlements under the Aboriginal Land Rights (Northern Territory) Act. The claim for compensation arising under, or as a consequence of, that Act is struck out but with liberty to the applicants to replead their claims with further and better particularity. (par 145)

The applicants will therefore have leave, should they wish to exercise it, to file and serve fresh statements of claim remedying the error that I have identified. That must be done within 14 days.

Subject to those comments, I reject the Commonwealth's submissions that, as a matter of law, the pleaded causes of action are not available to the applicants.

As to the issue of hardship, I have concluded that the Commonwealth's claim has been made prematurely. The Commonwealth advanced a strong case, but it would not be fair to make a decision on it without first giving Mrs Cubillo and Mr Gunner the opportunity to be heard in their applications for extensions of time. After all, it is they who will suffer hardship if the Court decides not to grant them their extensions.

I am not prepared to order that the applications by Mrs Cubillo and Mr Gunner for extensions of time be heard and determined prior to the substantive trial. I have reached the same conclusion with respect to the Commonwealth's proposal that there should be a preliminary hearing to determine whether the applicants' claims for equitable damages are barred by analogy to the barring by statute of their claims at common law or by the principles of laches. In my opinion, that would amount to a mini-trial; my view is that it would be more effective and more cost-efficient, in the long run, to hear their applications for extensions of time during the course of the main trial. That will also be the occasion when the issue of the Commonwealth's hardship can be raised and evaluated.

The decisions that I have taken involve me reaching conclusions that are, prima facie, favourable, to Mrs Cubillo and Mr Gunner. That does not mean, however, that I have formed a final opinion on any aspect of their respective cases; it only means that I am satisfied that they should be allowed to argue their respective causes. It seems to me, with respect, that these cases are of such importance - not only to the individual applicants and to the larger Aboriginal community, but also to the Nation as a whole - that nothing short of a determination on the merits with respect to the competing issues of hardship is warranted. That cannot be achieved until the applicants have placed before the Court all the material that they would wish the Court to receive before it rules on their applications for extensions of time.

The Court therefore refuses to make any of the orders sought in pars 2, 3 and 4 of the Commonwealth's notice of motion dated 5 June 1998.

Further consideration of these proceedings is reserved and any party is at liberty to apply to have the matter relisted on two days notice. If it suits the convenience of the parties, there can be a directions hearing at 9.00 am CST 9.30 am EST on Wednesday 12 May 1999. An alternative date and time can be arranged, if necessary, by contacting my associate.

The applicants are to bring into Court short minutes of order reflecting the reasons of the Court and there will be liberty to speak to the minutes. The question of costs is reserved to the trial judge.

I publish my reasons.

The full text of the judgment and this summary is available at www.fedcourt.gov.au

FEDERAL COURT OF AUSTRALIA

Cubillo v Commonwealth of Australia [1999] FCA 518

WRONGFUL IMPRISONMENT - allegation that removal and detention of applicants was unlawful and beyond the powers conferred by the legislation - alleged failure to consider whether removal and detention was necessary or desirable in the interests of the applicants - whether there was a failure to take into account relevant circumstances - whether the decision maker took into account irrelevant circumstances - questions of fact that are available to the applicants to be resolved at trial

STATUTORY DUTY - whether civil recovery for alleged breach is available - status of "Welfare Statutes" - Court's inability to question policy - factual assertions that conduct fell outside policies sufficient to sustain cause of action

DUTY OF CARE - see Wrongful Imprisonment and Statutory Duty above

FIDUCIARY DUTY - whether the relationship of guardian and ward creates a fiduciary relationship - a question of fact to be determined on the evidence

PRACTICE AND PROCEDURE - application for summary dismissals - claim of irreparable hardship and prejudice to the respondent because of applicants' delay in institution of proceedings - applicants' applications for extensions of time within which to institute proceedings not yet heard - whether the Court should consider respondent's application for summary dismissals without having also heard evidence in support of applicants' applications for extensions of time - test to be applied - whether it is apparent that the actions must fail

The Constitution s 75 (iii)

Judiciary Act 1903 (Cth) s 44

Limitation of Action Act 1981 (NT)

Aboriginal Ordinance 1918 (NT)

Welfare Ordinance 1953 (NT)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Northern Territory (Administration) Act 1910 (Cth)

Northern Territory Government Ordinance 1911 (NT)

Federal Court Rules O 13 r 4(1)(a), O 20 r 2

Kruger v Commonwealth of Australia (1997) 190 CLR 1 applied

In the Marriage of B and R (1994-1995) 19 Fam LR 594 noted

Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 followed

Palmdale Insurance Co (in liquidation) v L Grollo & Co Pty Ltd (1984) VR 408 distinguished

Walton v Gardiner [1992-1993] 177 CLR 378 applied

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 631 cited

Bass v Permanent Trustee Company Ltd (unreported: judgment delivered 24 March 1999) cited

Northern Land Council v Commonwealth of Australia (1987) 75 ALR 210 followed

Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 referred to

Lonhro Plc v Fayed (1992) 1 WLR 1 applied

Webster v Lampard (1993) 177 CLR 598 applied

Waters v The Commonwealth (1951) 82 CLR 188 noted

Dey v Victorian Railways commissioners (1949) 78 CLR 62 followed

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112CLR 125 followed

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited

Lawrance v Lord Norreys (1890) 15 App Cas 210 applied

Wenlock v Moloney [1965] 1 WLR 1238 applied

Australian Building Industries Pty Ltd v Stramit Corporation Ltd (unreported: judgment delivered 1 December 1997) followed

Myer Stores Ltd v Soo [1991] 2 VR 597 cited

Carnegie v State of Victoria (judgment delivered 14 September 1989) cited

Northern Territory v Mengel (1995) 185 CLR applied

Darling Island Stevedoring & Lighterage Co. Ltd v Long (1957) 97 CLR 36 applied

Pyrenees Shire Council v Day (1997-1998) 192 CLR 330 followed

In the Matter of Citizen Limbo (1989) 92 ALR 81 referred to

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 discussed and distinguished

Hillman v Black (1996) 67 SASR 490 noted

McMullin v ICI Australia (1997) 72 FCR 1 noted

Byrne v Australian Airlines Ltd [1995] 185 CLR 410 noted

TC by his tutor Sabatino v State of New South Wales (unreported: judgment delivered 11 February 1999) discussed

Bienke v Minister for Primary Industries and Energy (1996) 135 ALR 128 applied

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 relied on

Trobridge v Hardy [1955] 94 CLR 147 referred to

Bropho v Western Australia [1990] 171 CLR 1 applied

Minister of State for Immigration and Ethnic Affairs v Teoh [1994-1995] 183 CLR 273 discussed

Jaensch v Coffey (1984-1985) 155 CLR 549 referred to

Bryan v Maloney [1995] 182 CLR 609 referred to

Stovin v Wise [1996] 3 WLR 388 cited

Re Appeal by Arthur Dingle (1962) 3 FLR 226 at 231 cited

Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 referred to

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

referred to

Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156CLR 41 followed

Breen v Williams (1996) 186 CLR 71 applied

Bennett v Minister of Community Welfare [1992] 176 CLR 408 discussed

Williams v Minister, Aboriginal Land Rights Act (1994) 35 NSWLR 497 noted

Paramasivam v Flynn (1998) 160 ALR 203 discussed and distinguished

M(K) v M(H) (1992) 96 DLR (4^th) 219 discussed

Northern Land Council v Aboriginal Land Commissioner (1991-1992) 105 ALR 539 applied

Re Toohey (Aboriginal Land Commissioner), Ex Parte Stanton (1983) 44 ALR 94 applied

Jungarrayi v Olney (1991-1992) 105 ALR 527 noted

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 applied

Enever v R (1906) 3 CLR 969 referred to

Field v Nott (1939) 62 CLR 660 applied

Baume v Commonwealth (1906) 4 CLR 97 applied

Ward v Walton (1989) 66 NTR 20 followed

Cartledge v E Jopling & Sons Ltd [1963] AC 758 discussed

Lovett v LeGall (1975) 10 SASR 479 referred to

Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 followed

Wardley Australia v Western Australia (1992) 175 CLR 514 followed

Noble v State of Victoria (judgment delivered 13 April 1999) noted

Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 applied

State of South Australia v Johnson (1982) 42 ALR 161 discussed

Ulowski v Miller [1968] SASR 277 noted

Forbes v Davies (1994) Aust Torts Rep 62 392 (81-279) noted

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 discussed and distinguished

Sydney City Council v Zegarac [1998] 43 NSWLR 195 distinguished

Famel Pty Ltd v Burswood Management Ltd (1990) ATPR 41-004 followed

LORNA CUBILLO v COMMONWEALTH OF AUSTRALIA

NO DG 14 of 1996

PETER GUNNER v COMMONWEALTH OF AUSTRALIA

NO DG 21 OF 1996

O'LOUGHLIN J

30 APRIL 1999

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

LORNA CUBILLO DG 14 OF 1996

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

BETWEEN:	PETER GUNNER DG 21 OF 1996 Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The applications for orders as contained in pars 2, 3 and 4 of the notice of motion dated 5 June 1998 and filed herein on behalf of the Commonwealth of Australia be dismissed.

2. The applicants in each action (if so advised) be at liberty, within fourteen days of this date, to file and serve a further amended statement of claim and further and better particulars of her and his statement of claim in terms consistent with the reasons of the Court published this day.

3. The question of costs be reserved for the consideration of the trial judge.

4. Further consideration of these proceedings be reserved and that the directions hearing be adjourned to Wednesday 12 May 1999 at 9.00 am.

5. Liberty to any party to apply, including liberty to relist on two days notice and liberty to speak to the minutes.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Page No

Paragraph No

___________________________________________________________________________

Introduction	1	1 -5
The orders sought	3	6 -12
The applicants' complaint	6	13
The Power to Grant a Stay	7	14
The history of the litigation	8	15 - 20
Mrs Lorna Cubillo	11	21 -26
Mr Peter Gunner	14	27 - 32
The material before the Court	16	33
The Commonwealth's response	17	34 - 35
The relevant Legislation	17	36 - 51
Summary Dismissal of Proceedings	24	52 - 59
Guardianship	27	60 - 65
Wrongful Imprisonment	30	66 - 71
Breach of Statutory Duty	34	72 - 98
Breach of Duty of Care	45	99 - 109
Breach of Fiduciary Duty	50	110 - 134
Loss or Damage and Relief sought	62	135 - 145
Vicarious Responsibility	66	146 - 147
Extension of Time	68	148 - 178
Hardship	83	179 - 202
Conclusion	94	203 - 204
Schedule	95

___________________________________________________________________________

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

BETWEEN:

LORNA CUBILLO DG 14 OF 1996

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

BETWEEN:

PETER GUNNER DG 21 OF 1996

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:	O'LOUGHLIN J
DATE:	30 APRIL 1999
PLACE:	DARWIN

REASONS FOR JUDGMENT

Application to Dismiss Actions Summarily

Introduction

1 Each of these matters was separately commenced by writ and statement of claim in the High Court of Australia on 30 October 1996; as the Commonwealth was the respondent in both actions, the matters were within the original jurisdiction of that Court: s 75(iii) of The Constitution. However, by consent, further proceedings were remitted by the High Court to the Federal Court of Australia by orders made a month or so later on 26 November pursuant to s 44 of the Judiciary Act 1903 (Cth). It will be necessary, in due course, to investigate in depth the nature of the claims that each applicant has made against the Commonwealth and the nature of the relief that has been sought. However, it is sufficient, at this stage, to introduce the matters by saying that the applicants, Mrs Lorna Cubillo and Mr Peter Gunner, are part Aboriginal persons who have claimed that, as children, they were removed from their families and thereafter detained in institutions against their will until they attained (in the case of Mrs Cubillo) the age of eighteen years and (in the case of Mr Gunner) the age of sixteen years; it has also been alleged that each removal occurred without the consent of the applicant or the applicant's mother.

2 In the case of Mrs Cubillo, these events are said to have commenced in about 1945 - fifty four years ago. In Mr Gunner's case, it is said that he was taken eleven years later, in 1956. Both applicants have claimed that they are members of "the Stolen Generation", the term that is widely used to refer to the former practice of taking part Aboriginal children from their families and placing them in dedicated missions or institutions. They have each claimed that it was the Commonwealth who was the party responsible for taking them into custody and thereafter detaining them; they have also alleged that their removal and detention was unlawful. All these claims are denied by the Commonwealth.

3 The applicants have claimed that their removal and detention constituted "wrongful imprisonment and deprivation of liberty". That claim is the first of four alleged causes of action. The remaining causes of action are said to be breaches of statutory duty, of fiduciary duty and of a general duty of care. General damages allegedly arising from mental and emotional distress and a post traumatic stress syndrome are claimed. There are also claims for aggravated and exemplary damages. In par 44 of Mrs Cubillo's statement of claim it is pleaded that:

"In the removal and detention of the Applicant the Respondent acted with a conscious and contumelious disregard for the welfare and rights of the Applicant or with a wanton cruel and reckless indifference to her welfare and rights, thereby causing the Applicant substantial distress, humiliation and injury to her feelings, and the Applicant is entitled to aggravated or exemplary damages."

The same plea appears in par 65 of Mr Gunner's statement of claim.

4 The former practice of removing part Aboriginal children from their mothers has attracted Australia-wide publicity, particularly as a result of the tabling in the Commonwealth Parliament on 25 May 1997 of the report of the Human Rights and Equal Opportunity Commission entitled "Bringing Them Home." It has led to strenuous demands, from a wide cross-section of the community, that the Commonwealth Government issue a public apology to all those who were caught up in this program of institutionalisation. It caused Brennan CJ to say in Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 that the revelation of the ways in which the powers conferred by the legislation were exercised has, in many cases, "profoundly distressed the nation." The Full Court of the Family Court was more direct in its outright condemnation of the practice; it said:

"The first step in the admissibility of this type of evidence is, we think, now beyond controversy. This is the devastating long term effect on thousands of Aboriginal children arising from their removal from their Aboriginal family and their subsequent upbringing within a white environment."

(In the Marriage of B and R (1994-1995) 19 Fam LR 594 at 602 per Fogarty, Kay and O'Ryan JJ).

5 Although it is important to recognise that the subject of the removal and detention of part Aboriginal children has created racial, social and political problems of great complexity, it nevertheless remains the duty of the Court, in the determination of the issues that are presently before the Court, to limit its observations to the legal issues that have been identified during the course of argument. Historians may wish to adjudicate on the social policies of former Governments and it must be left to the political leaders of the day to determine what, if any, action might be taken to arrive at a social or political solution to these problems. It would not be proper for this Court to go beyond the boundaries of the legal issues that are to be determined.

The Orders sought

6 These reasons are therefore concerned with and limited to certain of the orders that were sought in a notice of motion dated 5 June 1998 that was filed by the respondent, the Commonwealth of Australia. The orders sought in that notice include orders that the statements of claim in each action be struck out and that each action be dismissed. In taking that action, the Commonwealth is relying upon the provisions of O 20 r 2 of the Rules of Court. That rule, so far as it is relevant, provides as follows:

"2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -

(a) no reasonable cause of action is disclosed;

(b) the proceeding is frivolous or vexatious; or

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding."

7 Alternative orders that were sought by the Commonwealth in its notice of motion are as follows:

"3. That the Applicants' application for an extension of time pursuant to section 44 of the Limitation Act 1981 (NT) made in paragraph 47 (Cubillo) and paragraph 68 (Gunner) of the amended statements of claim be heard and determined on a date and at a venue to be fixed by the Court pursuant to section 44(5) of the Limitation Act 1981 (NT) and/or Order 29 Rule 2 of the Federal Court Rules;

4. That the question whether the Applicants' claim for equitable damages in their amended statements of claim are barred by analogy to the barring by statute of the claims at common law and/or by laches as pleaded by the Respondent in its further amended defence, be heard and determined on a date and at a venue to be fixed by the Court pursuant to Order 29 Rule 2 of the Federal Court Rules;"

8 The arguments on both sides of the bar table commenced with an acknowledgment that the comments of Donaldson LJ in Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 correctly identified the alternative courses of action that are available to a respondent who is seeking summary dismissal. In that case, the owner of a building sued its builder and architect, claiming damages for breach of contract and for negligence. As to the architect, it was alleged that he had been negligent in the design of the building. The building owner claimed that the building had leaked since its completion and that it continued to do so despite certain remedial work that had been carried out by the builder with the advice of the architect. The architect issued a third party notice against the consulting engineers whom, he claimed, had assisted him in his work on the building. Shortly thereafter the architect died. The engineers issued a summons seeking various orders by way of interlocutory relief. It is only necessary, for the purposes of these proceedings, to refer to the engineers' claim that the third party proceedings were barred by s 2 of the Limitation Act 1939 (UK). The way in which the engineers went about their interlocutory application was to seek an order striking out the third party notice upon the ground that it disclosed no cause of action since the alleged causes of action in contract and tort were both statute barred at the time of the issue of the third party proceedings. That application was rejected, Donaldson LJ (with whom Sir Sebag Shaw and Stephenson LJ agreed) saying that he considered it "absurd to contend that a writ or third party notice could be struck out as disclosing no cause of action, merely because the defendant may have a defence under the Limitation Acts": (404). His Lordship went on to add that "it is trite law that the English Limitation Acts bar the remedy and not the right ... and they do not even have this effect unless and until pleaded." (404). The correct approach, according to Donaldson LJ was as follows:

"Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed."(405)

9 Vincent J in Palmdale Insurance Co (in liquidation) v L Grollo & Co Pty Ltd (1984) VR 408 at 409 expressed reservations about some of the remarks of Stephenson LJ in Ronex Properties. His Lordship had said that there could be cases in which the expiry of the limitation period made it a waste of time and money to let a plaintiff go on with his action; in such cases his Lordship said that "the right course is therefore for a defendant to apply to strike out the plaintiff's claim as frivolous and vexatious and an abuse of the process of the court on the ground that it is statute-barred." Vincent J challenged this statement, pointing out that such a course of action should not be permitted prior to the delivery of a defence. But in the present cases, defences have been filed: the "limitation" defences have been raised: and as Vincent J conceded "once the pleadings are before the Court it is, of course, a very different matter" (409). The criticism of Vincent J, assuming it to be justified, does not apply to the Commonwealth's position in the case of Mrs Cubillo and Mr Gunner.

10 The Commonwealth has advanced four propositions in these present proceedings. The grounds upon which it seeks orders of dismissal are:

· as a matter of law, none of the causes of action can be sustained and so must fail;

· if, on the contrary, there is a cause of action which exists, the Commonwealth's defence, based on statutory limitation periods and laches cannot be answered and so must prevail;

· the judicial power to extend the periods of limitation under section 14 of the Limi