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Edis, Jessica --- "Cubillo gives Stolen Generations the Go - ahead: Cubillo v Commonwealth of Australia" [1999] IndigLawB 59; (1999) 4(22) Indigenous Law Bulletin 18

Cubillo Gives the Stolen Generation the Go-Ahead:
Cubillo v Commonwealth of Australia

by Jessica Edis

Cubillo v Commonwealth of Australia

Federal Court of Australia

O’Loughlin J

Strike-out application

30 April 1999

The recent judgment of Cubillo v Commonwealth[1] (‘Cubillo’) marks a significant step for the Stolen Generation on the path towards successful litigation against the Commonwealth. The decision recognises the right of the plaintiffs, as representatives of the Stolen Generation, to argue their case. In so doing, the Commonwealth’s claim to have the plaintiffs’ case struck out was dismissed.

The Human Rights and Equal Opportunity Commission's National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families was tabled in Federal Parliament in May 1997. The legal ramifications of the findings of the Inquiry are currently being tested in at least one other case in Australia.[2]

Justice O'Loughlin’s decision in Cubillo is not a final determination on the merits of a claim by two members of the Stolen Generation. Rather, it is a decision on an application by the Defendant (the Commonwealth) to have the case struck out. However, this does not make the decision in Cubillo any less significant for future claimants.

His Honour found that the causes of action pleaded by the plaintiffs are not ‘groundless’ but are ‘arguable’ on their merits and therefore cannot be struck out. His Honour also found that the plaintiffs’ application for extensions of time in which to bring proceedings are to be heard notwithstanding the Commonwealth’s argument that so much time has now passed that it would be manifestly unfair to the Commonwealth if the Court were to grant the application.

Alleged causes of action

Mrs Lorna Cubillo and Mr Peter Gunner are members of the Stolen Generation. They state that, as children, they were forcibly taken from their families in 1945 and 1956 respectively. Thereafter, they were detained in institutions against their will until they attained (in the case of Mrs Cubillo) the age of 18 years and (in the case of Mr Gunner) the age of 16 years. They say their removals occurred without their consent or the consent of their mothers.

Mrs Cubillo and Mr Gunner claim that the Commonwealth, through its servants and agents, was the party responsible for their removal and detention. They claim that their removal and detention constituted wrongful imprisonment and deprivation of liberty, in that the Director of Native Affairs, acting on the Commonwealth's behalf, exercised his statutory power to so remove them, for an improper purpose.[3]

It is alleged that the Director owed the plaintiffs a duty, amongst other things, to adequately provide for their welfare and best interests. It is further alleged that these duties arose by virtue of the obligations owed to them by the Director under statute and by virtue of the special relationship between the Director and the children removed. Finally, it is alleged that the plaintiffs’ removal and detention amounted to a breach of statutory duty, of fiduciary duty and of the general duty of care owed to them by the Director and, therefore, the Commonwealth by virtue of the doctrine of vicarious liability.[4]

For the mental and emotional distress and post-traumatic stress syndrome arising from these breaches of duty, the plaintiffs seek general damages. For the Commonwealth's ‘conscious and contumelious disregard for’ or ‘cruel and reckless indifference to’ the plaintiffs’ welfare and rights causing them substantial suffering, they seek aggravated and exemplary damages.

The Commonwealth’s response

The Commonwealth denies the applicants' allegations; it argues that the individuals who effected the applicants' removal and detention were not acting on the Commonwealth's behalf. However, despite claiming that it can defend allegations of this nature, the Commonwealth sought an order for the action to be summarily terminated on two bases.[5]

First, it was argued that as a matter of law, none of the applicants' causes of action could be sustained. Secondly, it was submitted that in any event, the applicants' case should be dismissed because so much time had passed since the allegedly unlawful removal and detention. As a consequence of this passage of time, many witnesses had died and the memories of those still living would be considerably impaired. This, it was argued, would prejudice the Commonwealth’s defence so severely that there could be no possibility of a fair trial.

The decision

Justice O'Loughlin made it clear from the outset that the issue before the Court in determining the outcome of the application for summary dismissal was not whether Mrs Cubillo and Mr Gunner would probably succeed in their action against the Commonwealth. Rather, it was whether it had been demonstrated to the Court that their action should not be permitted to go to trial because it was apparent that it was bound to fail, or was otherwise objectionable as an abuse of the process of the Court.[6] His Honour emphasised, by reference to an extensive body of authority, that the jurisdiction to summarily dismiss an action should be ‘very sparingly exercised, and only in very exceptional cases’ where it is clear that there is no real question to be tried.[7]

The Court decided that, subject to the remedying of certain aspects of their statements of claim, the plaintiffs be allowed to proceed to a full hearing of their allegations against the Commonwealth. Justice O'Loughlin referred to three main deficiencies that are to be excised from the plaintiffs’ pleadings and the particulars before they proceed.

First, it was held that the plaintiffs’ allegation that the Director’s delegation of his ‘guardianship’ role in respect of the plaintiffs to the institutions in which they were detained constituted a breach of his statutory, fiduciary and general duty of care was unfounded because that delegation was authorised by statute. Secondly, the claim that the Director breached his general duty of care in his failure to ‘have any proper regard for prevailing international principles concerning the advancement and protection of human rights’ in authorising the plaintiffs’ removal and detention was found to be baseless. Finally, His Honour found that the plaintiffs’ pleadings had failed to disclose a compensable claim in relation to their alleged loss of entitlements under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). However, he also stated that such a claim may be re-pleaded if further and better particulars substantiating the claim were provided.

As to the Commonwealth’s application for termination, Justice O’Loughlin concluded that ‘the Commonwealth's claim [had] been made prematurely’.[8] His Honour held that a decision on the prejudicial effect of the hardship caused by the lapse of time cannot be made without considering, and weighing against it, the arguments in favour of the application for extensions of time. In particular, His Honour was of the view that ‘it would be more effective and more cost-efficient, in the long run, to hear the application for extensions of time [and the Commonwealth's corresponding claim of prejudice] during the course of the main trial’.[9]

While the decision in Cubillo appears to have involved the reaching of conclusions which are, prime facie, favourable to the plaintiffs, it must be kept in mind that ‘it only means that [Justice O'Loughlin ] was satisfied that they [the plaintiffs] should be allowed to argue their respective causes’.[10] The Human Rights and Equal Opportunity Commission’s Inquiry had no doubt that justice demands that the Commonwealth Government take responsibility for its contribution to the creation of the Stolen Generation, and make reparations in respect of this responsibility. The decision in Cubillo means that Stolen Generation cases will be heard. As O'Loughlin J remarked:

[T]hese 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 dtermination on the warranted.[11]

Jessica Edis is a final year law student at the University of Western Australia. She is currently undertaking an honours thesis which concerns the possible causes of action available to the Stolen Generation.

[1] (1999) FCA 518 (April 30 1999).

[2] Joy Williams v The Minister Aboriginal Land Rights Act 1983 (NSW) was heard in the Supreme Court of NSW in April-May 1999. Justice Abadee has reserved his decision. The question of time limits in relation to this case was heard in 1994: Joy Williams v The Minister Aboriginal Land Rights Act 1983 (NSW) (1994) 35 NSWLR 552.

[3] The relevant legislation is the Aboriginal Ordinance 1918 (NT) and the subsequent Welfare Ordinance 1953 (NT), which repealed the 1918 Ordinance and re-named the Director of Native Affairs as the Director of Welfare.

[4] It should be noted that, while the particulars of the circumstances giving rise to these different duties and breaches thereof are substantially the same, the legal basis upon which they are said to be enforceable varies according to the type of duty owed.

[5] These are referable to Order 20, Rule2(1) of the Federal Court Rules which authorises the Court to order that the proceeding be dismissed on certain grounds.

[6] His Honour noted that, in making his decision as to whether or not the applicants’ case would fail, he would proceed upon the assumption that both applications would, at trial, be able to prove to the Court’s satisfaction the allegations that they have made in their statement of claim.

[7] Above note 1, paras 52-59.

[8] Ibid para 202.

[9] Ibid summary of reasons for judgment.

[10] Ibid para 203.

[11] Ibid para 203.

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