Cubillo v Commonwealth of Australia [1999] FCA 518

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