Does this case not show that O'Loughlin failed to acknowledge the difficulties faced with Stolen Generations, by stating they failed to institute proceedings much earlier?
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- Created: Friday, 26 April 2013 10:28
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FEDERAL COURT OF AUSTRALIA - Cubillo v Commonwealth of Australia (includes summary) [2001] FCA 1213 (31 August 2001)
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, the Court has prepared this brief summary to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.
On 11 August 2000, a Judge of the Federal Court, O'Loughlin J, dismissed proceedings brought by Lorna Cubillo and Peter Gunner against the Commonwealth. Mrs Cubillo and Mr Gunner have appealed against the judgment of the primary Judge. The judgment we publish today deals with the arguments presented on the appeal.
Mrs Cubillo was aged eight when she was taken, along with fifteen other part-Aboriginal children, from the Phillip Creek Settlement, about forty kilometres north of Tennant Creek in the Northern Territory, in 1947. She was taken to the Retta Dixon Home in Darwin and remained there until October 1956. Mr Gunner was aged seven when he was removed from Utopia Station and taken to St Mary's Hostel, south of Alice Springs, in May 1956. He remained there until 1963. The Retta Dixon Home was conducted by the Aborigines Inland Mission of Australia, while St Mary's Hostel was run by the Australian Board of Missions.
The appellants claimed at the trial that their removal had taken place in consequence of a policy, endorsed by successive Commonwealth governments, whereby part Aboriginal children were taken from their families and placed in missions or institutions. The appellants said their removal and detention caused them pain and suffering (including serious psychological harm), loss of enjoyment of life and loss of cultural heritage. They also said that the Commonwealth was legally responsible for the wrongs done to them and was liable to compensate them in damages.
The appellants each relied on four causes of action to support their claims for damages:
(i) wrongful imprisonment and deprivation of liberty;
(ii) a breach of the statutory duty allegedly owed to them by the Director of Native Affairs, in failing to provide for their custody, maintenance and education, for which breach the Commonwealth was said to be vicariously responsible;
(iii) a breach of the duty of care allegedly owed to them by the Commonwealth; and
(iv) a breach of the Commonwealth's fiduciary duties.
The trial before the primary Judge lasted 106 days. His Honour's judgment runs to 485 printed pages. The legal and factual issues dealt with by the primary Judge were complex.
The primary Judge emphasised that the case presented particular difficulties because so much time had passed since the relevant events. (Mrs Cubillo's removal had occurred more than fifty years before the trial while, in Mr Gunner's case, more than forty years had elapsed.) There were therefore very large gaps in the evidence. His Honour also pointed out that the appellants had chosen to sue only the Commonwealth. They had not sued, for example, the Directors of Native Affairs or Welfare. Nor had they sued the individuals who (as the primary Judge found) had separately assaulted Mrs Cubillo and Mr Gunner while they were institutionalised. The issue was not therefore whether anyone was liable to the appellants for what they had experienced, but whether the Commonwealth was liable.
The primary Judge rejected the appellants' claims against the Commonwealth, essentially for two reasons.
First, on the evidence presented at the trial, his Honour found that the appellants had failed to establish any of the causes of action on which they had relied. Although the primary Judge accepted much of the evidence given by the appellants, he made a number of significant findings adverse to their case. In particular, his Honour found that on the evidence before him
* at the relevant times, there was no general policy in force in the Northern Territory supporting the indiscriminate removal and detention of part-Aboriginal children, irrespective of the personal circumstances of each child;
* Mrs Cubillo had failed to establish that, at the time of her removal, she was in the care of an adult Aboriginal person whose consent to her removal had not been obtained;
* Mr Gunner's mother, Topsy Kundrilba, had given her informed consent to her son's removal from Utopia Station to St Mary's Hostel; and
* the Commonwealth had not actively promoted or caused the appellants' detention.
Secondly, the primary Judge refused to grant an extension of time to the appellants in which to institute proceedings in respect of their common law causes of action (wrongful imprisonment and breach of duty). Such an extension of time was necessary because the causes of action had become barred under Northern Territory legislation by reason of the very long delay in commencing proceedings. The primary Judge found that the Commonwealth had suffered "irremediable prejudice" in defending the proceedings since it was unable to bring forward evidence from potential witnesses who had died or who were unavailable because of ill health. His Honour, in the exercise of his discretion, declined to grant an extension of time.
The issues on the appeal were considerably narrower than those dealt with by the primary Judge. For example, the appellants no longer pressed their claim founded on breach of statutory duty. More importantly, they did not challenge the major factual findings, adverse to their case, made by the primary Judge. They also accepted that the Commonwealth had sustained significant prejudice in defending the case, by reason of the delay in the appellants commencing the proceedings.
It is also important to appreciate that we have found that the appellants attempted to alter their case on appeal. In particular, they sought to reformulate the breach of duty case in an effort to overcome adverse findings of fact made by the primary Judge. We have concluded that it would be unfair to the Commonwealth, and not in accordance with legal principle, to permit the appellants to change their case at this late stage in the proceedings.
So far as the primary Judge's rejection of the appellants' substantive claims are concerned, we have reached the following conclusions:
* The primary Judge did not err in rejecting the appellants' false imprisonment claims. The unchallenged findings of fact are very difficult for the appellants to overcome. Alternative legal arguments advanced by them on the appeal do not demonstrate that the primary Judge made any error.
* The primary Judge correctly held that there was no basis for the appellants' claims founded on an alleged breach of fiduciary duties said to be owed by the Commonwealth to the appellants.
We also have decided that it was open to the primary Judge to hold that the Commonwealth had sustained irremediable prejudice by reason of the appellants' delay in commencing proceedings and that no extension of time should be granted to them. It follows that, independently of the primary Judge's rejection of the appellants' substantive claims, his Honour was entitled to hold that the appellant's common law causes of action had to fail. In our view, it was also open to the primary Judge to hold (as he did) that any equitable claim based on breach of fiduciary duties had been barred because of the lapse of time.
We make one further observation. We are, of course, conscious of the controversy surrounding the existence or otherwise of what has become known as the "Stolen Generation". Neither the primary Judge nor this Court was asked to make findings on this issue, and it would be inappropriate for us to do so. The questions raised at the trial and on the appeal concerned the circumstances in which two individuals, Mrs Cubillo and Mr Gunner, were long ago removed from their families and placed in institutions, and the legal consequences that flowed from those events. Our task, like that of the primary Judge, is to decide the issues presented to us in accordance with law.
The result is that the appeals have been dismissed.
The full text of the Court's judgment, reported as Cubillo & Gunner v The Commonwealth [2001] FCA 1213, will shortly be available on the Court's website at www.fedcourt.gov.au. (Source : http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1213.html)
