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Article Excerpt
[Litigation for the so-called 'Stolen Generations" had been demonstrably unsuccessful until the recent case of Trevorrow v South Australia [No 5] ('Trevorrow '). This article explores in detail the Trevorrow decision and offers some comment on the litigation possibilities that flow from it. The success of the Stolen Generations litigant in Trevorrow is compared and contrasted to past failures in the area. Furthermore, this article considers litigation and non-litigation based responses to past wrongs, and questions whether litigation is capable of leading to an acceptable resolution for members of the Stolen Generations.]
CONTENTS I Introduction II Litigation before Trevorrow--An Overview III The Trevorrow Case A The Litigation and Factual Background B Statutory and Policy Framework Relating to Removals in South Australia 1 The Scheme (a) Maintenance Act 1926-1937 (SA) (b) Children's Protection Act 1936 (SA) (c) Aborigines Act 1934-1939 (SA) and the APB (d) Legislation after the Removal of the Plaintiff 2 The Submissions of the Plaintiff and the State in Relation to the Statutory Scheme 3 Guardianship Powers of the APB 4 The APB's Appreciation of Its Limited Legal Authority to Remove Aboriginal Children C Liability of the State D Plaintiff's Applications for Extension of Time 1 Limitation of Actions Act 1936 (SA) 2 Laches E Findings on the Plaintiff's Claims 1 Misfeasance in Public Office 2 Wrongful Imprisonment 3 Fiduciary Duty 4 Negligence (a) Imposition of a Duty of Care on a Public Authority (b) Application of the Salient Features Test (c) Breach of Duty of Care (d) Causation F Remedies 1 Injuries and Loss 2 Cultural Identity 3 Exemplary Damages 4 Plaintiff's Entitlement to Damages and Declarations IV The Trevorrow Case and 'So What?' V Judicial versus Non-Judicial Responses to the Stolen Generations A Limitations of Litigation for Stolen Generations Claimants 1 Evidentiary Difficulties 2 Limitation Periods 3 'Standards of the Time' Defence 4 Floodgates 5 Trauma, Cost and Delay B An Alternative to Litigation? VI Conclusion VII Epilogue
I INTRODUCTION
Ten years ago, I wrote an article in the University of Western Australia Law Review (1) on possible litigation options for the so-called 'Stolen Generations'. (2) The purpose of that article was to examine possible legal action that could be brought by the Stolen Generations, highlighting potential legal difficulties confronting Stolen Generations litigants. At that stage there had only been one substantial determination of a 'Stolen Generations case'. (3) Subsequent cases confirmed the difficulties for those choosing the litigation pathway. However, the recent case of Trevorrow v South Australia [No 5] ('Trevorrow') (4) has shone light into a previously dark litigation tunnel.
Some may argue that the Trevorrow decision is a clarion call to the judiciary to reassess its 'timidity' towards finding for Stolen Generations litigants. Gray J's judgment in Trevorrow is markedly different in approach and outcome to what came before it. Furthermore, the long-awaited official Commonwealth government apology to the Stolen Generations on 13 February 2008 (5) and the subsequent calls for a national compensation scheme (6) following Trevorrow has generated a renewed optimism among members of the Stolen Generations hoping for either a courtroom victory or another form of historical redress.
The purpose of this article is to explore the Trevorrow decision and offer some comment on the litigation possibilities that flow from it. The body of this article is divided into four parts. Part II is a brief overview of the cases decided prior to Trevorrow. Part III provides a detailed commentary on the Trevorrow case, including an analysis of how the Court's findings on the plaintiff's claims differ from previous Stolen Generations judgments. Part IV examines the possible precedential utility of the Trevorrow decision. (7) Finally, Part V of this article considers litigation and non-litigation based responses to past wrongs, and questions whether litigation is capable of leading to an acceptable resolution for members of the Stolen Generations.
II LITIGATION BEFORE TREVORROW--AN OVERVIEW
Stolen Generations litigants, inter alia, have instigated legal actions based in tort, fiduciary and constitutional law. The only substantial case based in constitutional law is Kruger v Commonwealth ('Kruger'). (8) However, as I have discussed this case in my 1998 article, I will make only a brief comment here.
The litigants in Kruger were unsuccessful in claiming that the Aboriginals Ordinance 1918 (Cth) was unconstitutional. None of the Justices found the Ordinance contrary to s 116 of the Australian Constitution (freedom of religion), (9) and all Justices considered that there was a sufficient nexus between the Ordinance and s 122 of the Constitution (which confers legislative power to make laws for the government of a territory). (10) All the Justices who considered these constitutional issues concluded that the Ordinance, textually at least, was a 'beneficial' law and not genocide. (11) and four Justices held that it did not violate any novel implied constitutional guarantees or prohibitions (if indeed such guarantees or prohibitions existed). (12) Kruger also confirmed that, under Australian law, no action in damages arises from breaches of a constitutional right. (13) The Kruger judgment reinforces the notion that in any cause of action, it is the community standards at the time of the exercise of the legislative power and/or 'welfare care' under challenge that are relevant. (14)
The Aboriginals Ordinance 1918 (Cth) was again placed under judicial scrutiny in Cubillo v Commonwealth. (15) Lorna Cubillo was born in 1938 in the Northern Territory. Her aunt cared for her after Lorna's mother died. Patrol officers forcibly removed her in 1945 and placed her in the Retta Dixon Home in Darwin; she remained there until she was 18 years old. (16) Peter Gunner was born in 1948 on a pastoral station. Patrol officers removed him when he was seven or eight years old. They sent him to St Mary's Church of England Hostel in Alice Springs; he remained there until he was 16 years of age. (17)
Cubillo and Gunner claimed that their removal and detention constituted wrongful imprisonment and deprivation of liberty. They also alleged that the Northern Territory Director of Native Affairs and the Commonwealth, by virtue of the doctrine of vicarious liability, breached their statutory duty, duty of care and fiduciary duty to the plaintiffs. They also claimed damages for breach of 'duty as guardian'. In presenting the claims, counsel for Cubillo and Gunner stated:
These cases concern great injustice done by the Commonwealth of Australia to two of its citizens. By the actions of the Commonwealth, Lorna Cubillo and Peter Gunner were removed as young children from their families and communities. They were taken hundreds of kilometres from the countries of their birth. They were prevented from returning. They were made to live among strangers, in a strange place, in institutions which bore no resemblance to a home. They lost, by the actions of the Commonwealth, the chance to grow among the warmth of their own people, speaking their people's languages and learning about their country. They suffered lasting psychiatric injury. They were treated as orphans when they were not orphans. They lost the culture and traditions of their families. Decades later, the Commonwealth of Australia says in this case that it did them no wrong at all. (18)
Although the Federal Court of Australia rejected the Commonwealth's strike out application, (19) it decided against the plaintiffs on the merits of the case, (20) even though O'Loughlin J found that the removal from family was 'an occasion of intense grief' and had resulted in 'terrible pain' to the children and their families. (21) The Full Court of the Federal Court dismissed an appeal, (22) and the plaintiffs were denied leave to appeal to the High Court of Australia because there was no likelihood of success in overturning the lower courts' decisions. (23) These decisions brought into relief the multiple legal and evidential obstacles involved in pursuing litigation to redress the alleged wrongs of past Aboriginal child separations or removals. (24)
The only other case on Aboriginal child separations policy to reach trial before Trevorrow is Williams v Minister, Aboriginal Land Rights Act 1983, (25) which named the state government of New South Wales as a defendant. (26) In the early 1940s, Joy Williams, of Aboriginal descent, was placed as a newborn at the Bomaderry Children's Home in NSW. At the age of four and a half years due to her 'fair skinned' appearance she was transferred to Lutanda Children's Home, an institution run by the Plymouth Community for 'white' children of European background. She alleged that the subsequent discovery of her Aboriginality had caused her considerable distress, as she was told that she had 'mud in [her] veins'. (27) After leaving Lutanda at the age of 18, an emotionally disturbed Joy Williams lived precariously as a vagrant, resorting to petty crime and prostitution to support herself. She suffered a range of mental disorders and served a short term in prison. In 1988, the Department of Child and Adolescent Psychiatry diagnosed her with an extremely severe form of mental disorder. (28)
Williams commenced legal action in 1993, seeking an extension of time under the Limitation Act 1969 (NSW) to file her statement of claim. Although her application failed in the first instance, the NSW Court of Appeal granted the extension, Kirby P holding that her case must be heard in full 'as our system of law provides [justice] to all Australians--Aboriginal and non-Aboriginal--according to law, in open court and on its merits.' (29)
At trial, the Court found that the plaintiff failed to prove her allegations (30) and held that the Aborigines Protection Act 1909 (NSW) did not transfer guardianship from the mother to the Aboriginal Welfare Board or other body or person. (31) The Court also held that 'policy' reasons, particularly in relation to concerns about 'floodgate' litigation, militated against imposing a duty of care in an institution-child relationship. (32) The NSW Court of Appeal upheld the lower court decision, remarking that the plaintiff's case suffered from 'an insuperable causation problem'. (33) It also raised policy considerations, saying that '[t]he potential impact of imposing a duty of care in the present circumstances is, as the trial judge noted, potentially wide.' (34)
A more successful outcome came from the claim of Valerie Linow in the NSW Victims of Crime Compensation Tribunal pursuant to the Victims Support and Rehabilitation Act 1996 (NSW). (35) This was an alternative to the orthodox litigation pathway, which allowed a member of the Stolen Generations to claim monetary compensation ($35 000) (36) for harm resulting from ill-treatment while under state care. (37)
The Tribunal Assessor held that on the balance of probabilities 'the applicant was subjected to a series of indecent and sexual assaults by the alleged offender' (38) and accepted that Linow suffered from psychiatric disorders. However, with poignant but unintended irony, the Tribunal denied her claim because the Assessor believed that she would not have experienced emotional harm had the sexual assaults occurred whilst she was living in a loving family environment: it was her removal and institutionalisation that caused her psychological harm. (39) On appeal, the Victims Compensation Tribunal overturned the decision, holding that compensable injury had to be a direct result, not the 'direct result of the sexual assaults'. (40) Further, an aggravation of an existing condition by an act of violence would qualify as a compensable injury.
The Stolen Generations litigation outlined above highlights the difficulties experienced by Stolen Generations litigants. Major obstacles have arisen in relation to doctrinal arguments, issues of evidence, the historical standard of the time, and policy. That was to change, however, with the case brought by Bruce Allan Trevorrow in the Supreme Court of South Australia.
III THE TREVORROW CASE
A The Litigation and Factual Background
The Aboriginal plaintiff, Bruce Allan Trevorrow, sued the State of South Australia in the Supreme Court of South Australia for misfeasance in public office, false imprisonment, breach of duty of care and breach of fiduciary and statutory duties. The claim arose out of his removal (at age 13 months) from his Aboriginal family in 1957 and his placement with a foster family in 1958. The plaintiff claimed that the circumstances of his removal from his mother and natural family and his ongoing separation for almost a decade had led to injury, loss and damage. He sought relief by way of declarations and damages. The state denied any liability arising from any of the pleaded causes of action .(41)
Gray J relied on the oral evidence of Bruce's siblings and half-siblings, as well as some documentary evidence, to make findings about family life in Joseph Trevorrow's (Bruce's father) (42) and Thora Karpany's (Bruce's mother) household in the 1950s and 1960s. (43) At the time of Bruce's birth (on 20 November 1956), Joseph and Thora lived with their three children--Hilda, aged nine, George, aged five, and Tom, aged three--in a home in the fringe-dwelling camps outside of Meningie. Joseph also had three children from a previous relationship, Joseph, Rita and Alice, who would occasionally come to stay with Joseph and Thora. (44)
Whilst Joseph and Thora were financially impoverished, Gray J concluded that 'the general picture of a well-nourished family, both physically and mentally, and of a happy family emerged from the evidence.' (45) Joseph was in regular (albeit casual) employment and the children were fed and clothed and were encouraged to attend school. (46) Relatives living nearby would help Thora and Joseph with their children when necessary. (47)
In 1957, Bruce had become ill before Christmas and, on Christmas Day, Joseph enlisted the help of his neighbours to drive his son to the Children's Hospital where he was admitted. (48) Joseph died in January 1966 having never seen the plaintiff again after that Christmas Day.
Although the Court was presented with conflicting evidence about the plaintiff's general wellbeing and family life at the time he was admitted to hospital, (49) after considering all the evidence, Gray J found that Bruce was neither malnourished nor neglected, nor was he 'without parents' when he was admitted to hospital on Christmas Day 1957. (50) Rather, Gray J found that Bruce was only in hospital for the purposes of treatment: he had not been abandoned and it was expected that he would return to the care of his parents when he recovered. (51)
Bruce recovered rapidly whilst in the Children's Hospital and by New Year's Eve the hospital records noted that he was 'going well'. (52) Soon thereafter, he was fostered out to Martha and Frank Davies without the consent of his parents. (53) At the time, Martha was not licensed as a foster parent and no attempt was made to assess properly whether Martha was an appropriate foster mother. (54) Gray J found that this process was authorised and arranged by an officer of the Aborigines Department, acting with the general authority of the Aborigines Protection Board ('APB'). (55)
Evidence from welfare officers confirmed that the usual practice was for contact to be maintained between the natural family and the child after removal. (56) An issue at trial was the extent to which Thora had sought the return of the plaintiff. (57) Gray J found that 'the documentation tendered at trial clearly establishes that Thora did seek contact with and the return of the plaintiff and that she did so repeatedly over a period of years.' (58) The Court also found that Thora's requests were consistently ignored or rejected and that there was 'a level of determination on the part of the APB that the plaintiff and Thora were not to have contact'. (59)
In 1963, the proclamation of the Aboriginal Affairs Act 1962 (SA) transferred guardianship of the plaintiff from the APB to Thora. Gray J found that no steps were taken to personally notify Thora of this change until 1966. (60) The state's submission that newspapers provided adequate public dissemination of the changes to guardianship was rejected. (61)
There was no evidence that any agency of the state monitored the plaintiff's wellbeing with the Davies family until February 1964. (62) Even though there were periods where the plaintiff appeared to live relatively happily with the Davies, (63) he was also experiencing developmental problems, depression and speech difficulties from around the time of his third birthday. (64) In 1964, when Bruce was about eight years old, his behaviour began to deteriorate markedly. He began stealing money from Martha, soiling his underwear, having difficulties at school and was generally described by welfare officers as destructive and irresponsible. (65) It was around this time that the plaintiff was informed that he was not a natural member of the Davies family. (66)
The evidence showed the plaintiff to be psychologically disturbed and, by the age of 10 years, he was being prescribed drug treatment including tranquillisers and antidepressants. (67) The evidence also established that he was emotionally scarred by Martha's recurring threats that if his behaviour did not improve he would be sent to another foster family. (68)
On 20 November 1966 (Bruce's 10th birthday), following a further request by Thora, welfare officers arranged Bruce's first meeting with Thora and his natural siblings. (69) Martha reported to a welfare officer that his behaviour following this visit was not good and soon after he developed a limp that apparently had no physical cause. (70) Bruce continued to have contact with Thora, including weekend visits to his natural family in Victor Harbor. Meanwhile, Martha's ability to cope deteriorated as Bruce's poor behaviour continued. (71)
In May 1967, Bruce went to Victor Harbor, apparently to spend the school holidays with his natural family, but ended up staying there permanently because Martha refused to take him back. (72) Neither the plaintiff nor Thora received formal notice of the return. (73) Gray J found that the return generally took place 'in the most unsatisfactory of circumstances.' (74) Thora and Martha were both ill-prepared by the state for this change. (75) In particular, Gray J noted that Bruce was not given the opportunity to say goodbye to his foster family. (76) Nor was he prepared for the '"rough and tumble" of indigenous life at Victor Harbor.' (77) Whilst his siblings 'had learnt the art of survival in that environment--the plaintiff had not.' (78)
Approximately 12 months after his return to Thora, Bruce was facing charges of larceny. (79) He was institutionalised...
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