Cubillo v Commonwealth [2000] FCA 1084

FEDERAL COURT OF AUSTRALIA Cubillo v Commonwealth [2000] FCA 1084 ABORIGINES – children –separation – whether forced or consensual – whether application of general policy without regard to individual circumstances EVIDENCE – demarcation between matters known to a judge personally and matters before a court formally as evidence – trial judge bound by evidence formally before the court – ability of a trial judge to accept part only of a witness' evidence – weight to attach to documentary evidence – application of the Briginshaw test to a non party witness – whether principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation – rule in Jones v Dunkel – absence of witnesses claimed to be material witnesses – tendency evidence in civil trials – admissibility – s 97 Evidence Act 1995 (Cth) – whether risk of concoction WRONGFUL IMPRISONMENT – whether applicants detained – wrongful imprisonment and deprivation of liberty – whether detention unlawful – whether statutory powers exceeded – whether application of general policy without regard to individual circumstances STATUTORY DUTY – whether statutory duty arose – whether statute precluded duty arising – whether statute allowed recovery for breach of statutory duty NEGLIGENCE / DUTY OF CARE – whether duty owed – whether general duty of care owed in exercise of powers under welfare statutes – whether breach of duty EQUITY – fiduciary duty – guardianship – exercise of statutory powers over wards – whether Commonwealth owed and breached fiduciary duties to part Aboriginal people – psychiatric injury – defences – limitation statute not applying to equitable actions – limitation by analogy – laches VICARIOUS LIABILITY – liability of the Commonwealth – whether tortfeasor servant or agent of Commonwealth – application of independent discretion rule – whether chain of command or control – whether Commonwealth controlled the administration of Aboriginal affairs in the Northern Territory as part of its ordinary governmental functions – whether Director of Native Affairs or Welfare subject to the control of the Commonwealth through the Administrator in the performance of his functions DAMAGES – assessment of damages – loss of cultural, social and spiritual life – loss of entitlements and advantages under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – mitigation – exemplary damages – whether conscious and contumelious disregard for welfare and rights of the applicants – wanton cruel and reckless indifference – aggravated damages LIMITATION OF ACTIONS – applications for extension of time – whether extensions should be granted – delay in bringing action – persons under disability – prejudice to the Commonwealth – hardship – whether material facts became known to the applicants The Constitution ss 49, 75(iii) Judiciary Act 1903 (Cth) s 44 Parliamentary Privileges Act 1987 (Cth) s 16 Rights of the Terminally Ill Act 1995 (NT) Medical Treatment (Amendment) Bill 1995 (ACT) Euthanasia Laws Act 1997 (Cth) Criminal Code (Qld) Criminal Law Consolidation Act 1935 (SA) s 82A Criminal Code (NT) s 174 Health Act 1911 (WA) s 334 Defence Act 1903 (Cth) s 61A Criminal Code (Tas) ss 122, 123 Human Rights (Sexual Conduct) Act 1994 (Cth) Family Law Act 1975 (Cth) Aboriginals Ordinance 1918 (NT) ss 3, 3A, 4, 5, 6, 6(1), 6(2), 7, 8, 13, 13(6), 16, 17 Aboriginals Ordinance 1911 (NT) Northern Territory Aboriginals Act 1910 (SA) Welfare Ordinance 1953 (NT) ss 8, 14, 17, 17(2), 24, 32, Northern Territory Acceptance Act 1910 (Cth) s 6(1) Northern Territory (Administration) Act 1910 (Cth) ss 4(1), 4(2), 13(1) Northern Territory (Administration) Act 1947 (Cth) s 4U Evidence Act 1995 (Cth) ss 55, 60, 73, 74, 97 Limitation of Suits and Actions Act 1866 (SA) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 23(3) Limitation of Actions Act 1936 (SA) s 48 Statutes Amendment (Miscellaneous Provisions) Act 1972 (SA) Limitation Act 1969 (NSW) ss 60E(1)(b), 60G, 60I(1)