by Antonio Buti
‘Hi, Joanna, what have we got today?’ It is just another filing to the clerk, so the question is friendly, rhetorical, acknowledging a familiar face. She reads, ‘Statement of Claim in the matter of Bruce Allan TREVORROW, the plaintiff, and THE STATE OF SOUTH AUSTRALIA, the defendant’. She assigns it action number SCCIV-98-741.
And so it begins.
Chapter 10
‘WE’RE ON OUR WAY’
Filing a statement of claim in a civil matter only initiates the action. It is simply a pleading—that is, a document setting out the allegations to the court. Richardson has to be sure there is a cause of action available in law for the offences Bruce alleges. That is all it is. If the court accepts that a cause of action is available, Bruce still has to prove the allegations. The statement of claim provides the framework to the legal case; Bruce has to build his case upon that framework.
Even before he can start building his case, before the court hears any evidence, the defence is working to collapse the framework. That means trying to convince the court that no cause of action is available and that it should strike out the claim. It is an anxious time for Richardson because if the statement she has filed on Bruce’s behalf should be struck out, she has nowhere to turn and she will have failed Bruce. She knows there will be many skirmishes—that is what she calls them—before she can give Bruce his so-called day in court. The State of South Australia wastes no time in letting her know it is ready to engage. It has little choice. The allegations, if proved, could result in substantial financial damages. It also could have serious consequences beyond Bruce’s case. Richardson is prepared for what she knows could be years of procedural hearings and conferences before they go to trial. She hopes that Bruce is physically and emotionally prepared for the wait.
She knows, too, that the wait will be worse for Bruce than it is for her and her legal team. They have always known what to expect and, now that they are engaged in battle, each member of the team knows what they must do, so they just get on and do it. Bruce can only wait, relying on Richardson to tell him what is going on. She knows from experience that after every conference and interim proceeding, which seem to lead to yet another round of conferences and proceedings, Bruce will begin to despair that his day in court will ever arrive. It is her duty—one that does not appear in the job description—to keep Bruce positive, no easy task with a man so emotionally and physically fragile. She makes a mental note to call Bruce today to let him know that she has filed the statement of claim.
Bruce is alleging that the State did not have the power to remove him the way it did—that is, without the consent of Joe and Thora, or, if it had sought consent but failed to obtain it, without a court order. As a result, it had falsely imprisoned him. Further, he alleges, the State knew that the way it removed him from his biological parents and placed him with the Davies family was illegal. The legal opinions of the Crown Solicitor in 1949 and 1954 are clear. Other archival material lends support to these opinions. Bruce will also claim that the State breached its fiduciary and common law duties of care by, among other things, not protecting him from harm and not providing him with independent legal advice about what had happened to him. And much did happen to Bruce while he was under the care of the State until he turned eighteen years of age.
Richardson phones Bruce. She can barely hear his voice; he does not sound well. ‘Keep him positive,’ she reminds herself. ‘Sound optimistic.’ She tells him she has filed the statement of claim; it is a strong claim, she assures him. He thanks her but his voice sounds listless.
Bruce is not sleeping well. He is agitated, restless, depressed. He is still a regular visitor to the local hospital and to the medical centre. He decides to go back to Bairnsdale, home country for Veronica. Within a month, they are back in the Gippsland region of Victoria. Veronica is happy to be home, but the change does not improve Bruce’s state of mind and general wellbeing. By the end of August, he is in Latrobe Regional Hospital, consumed with suicidal thoughts. He hears voices, he is paranoid. Doctors assess him as being of high risk to himself. He feels the stress of the court case, as Richardson knew he would. He is often drunk and aggressive to people, including his family. Too often, Veronica is a target of his aggression.
The months go by, sluggishly for Bruce, and when 1999 arrives he is still suffering, visiting doctors, psychiatrists and the regional hospital. Ever restless, he makes brief visits to Meningie, where he will sometimes phone Richardson for an update on the case. She tells him that the government is going to defend the action strongly. But, she reassures him, she always expected this. It will be a long and difficult battle. Nevertheless, she is confident they will succeed. She reminds him brightly, ‘Your case is different from other Stolen Generations cases.’
Richardson would only recently have learned the result of the Joy Williams hearing, one of those ‘other’ cases. Commencing around the time Bruce and Richardson first met, it does not finally go to trial until 1999. At trial, Justice Abadee finds that Williams failed to prove her allegations and he holds that the Aborigines Protection Act 1909 did not transfer guardianship from Williams’ mother to the Aboriginal Welfare Board or to any other body or person.18 On appeal, the New South Wales Court of Appeal upholds the trial judge’s decision, remarking that the plaintiff’s case suffers from ‘an insuperable causation problem’.19 In other words, the Court of Appeal affirms Justice Abadee’s finding that the Aboriginal Welfare Board owed no duty of care, meaning that no breach of duty or causation could be established. The plaintiff’s action in negligence therefore fails.20
Matters are no better in another case from the Northern Territory, Cubillo v Commonwealth.21 As in the Kruger and Bray cases, the Aboriginals Ordinance 1918 is again placed under judicial scrutiny in Cubillo. The same Aboriginal legal service that brought the Kruger action is running this case, though the legal team has learned the lesson of its unwise constitutional arguments and now concentrates on common law actions. The action fails but, from its failings, Richardson is able to learn much. She follows the progress of Cubillo intently.
The two plaintiffs are Lorna Cubillo and Peter Gunner. Cubillo was born in 1938 in the Northern Territory and was cared for by her aunt after her mother died. Patrol officers forcibly removed Cubillo in 1945 and placed her in the Retta Dixon Home in Darwin, where she remained until she turned sixteen. Peter Gunner was born in 1948 on a pastoral station in the Northern Territory. Patrol officers removed him when he was seven or eight years old and they sent him to St Mary’s Church of England Hostel in Alice Springs, where he remained until he was sixteen. Cubillo and Gunner claim that their removal and detention constituted wrongful imprisonment and deprivation of liberty. They also allege that the Northern Territory Director of Native Affairs and the Commonwealth Government breached their statutory duty, duty of care and fiduciary duty to them. They claim damages for breach of ‘duty of guardian’, though this is not developed at trial. In presenting the claims, counsel for Cubillo and Gunner state, ‘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. By the actions of the Commonwealth, they lost 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.’
The Federal Court of Australia allows the plaintiffs to proceed to trial in opposition to the Commonwealth’s application to have the case struck out. In essence, the Commonwealth argues it did the plaintiffs no wrong at all. Not persuaded, Justice O’Loughlin observes, ‘These 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 determination on the merits … is warranted.’ At trial, Justice O’Loughlin decides against Cubillo and Gunner; however, in handing down his reasons for the decision on 11 August 2000, he remarks that the removal from family was ‘an occasion of intense grief’ and had resulted in ‘terrible pain’ to the children and their families. The subsequent appeal to the Full Court of the Federal Court is dismissed. An application for leave to appeal to the High Court, heard on 3 May 2002, is denied because the High Court is of the view that there is no likelihood of success in overturning the Federal Court’s decision.
Almost ten years later, a royal commission is to hear devastating testimony about conditions at the Retta Dixon Home where Lorna Cubillo spent nine of her young years.22 During eight days of hearings in Darwin, the Royal Commission into Institutional Responses to Child Sexual Abuse hears graphic testimony of what went on at Retta Dixon, a facility that operated from 1946 until 1980. It is enough to cause some in the gallery of Darwin’s Supreme Court to shudder. Others shed tears. The home bore the name of its Baptist founder and was supposed to be a house of God but, ABC Radio reports, those who lived there described it as a house of evil. ‘Children at the home were raped … including some so badly they were forced to go to hospital where they were watched by their abuser to make sure they did not alert authorities. One man told the inquiry of having to wear nappies to school as a boy to stop the bleeding after being sexually assaulted. Other children were allegedly flogged with a belt until they bled.’23
Cubillo, who at the time of the Royal Commission was seventy-six years old, told the commission about house parent Desmond Walter groping her. He then beat her because she refused to clean his residence. She also alleged that staff chained her friend Ruth Dooney like a dog to her bed. ‘Ruth used to have fits and was chained up with a dog chain to her bed because of the fits.’ They fed her on the ground while chained and forced her to use a bucket as a toilet, she said.24 The Royal Commission would hear scores of accounts of child sex abuse.
Although one cannot suggest that testimony heard at the Royal Commission would have changed the facts as counsel argued them to support their actions ten years earlier, it might have given the Court pause to consider the enormity of actions carried out in the Commonwealth’s name. It might have reinforced the impression of government agencies acting with ill-advised and cavalier disregard of the best interests of Aboriginal children.
While she realises the difficulties with this type of litigation, the Cubillo decision does not discourage Richardson. She does not think the ruling is fatal to Bruce’s case as the facts of the situation are different and, in her opinion, so is the respective legislative framework around the removal.25 Perhaps that is the important difference, she thinks.
Meanwhile, other things that Richardson believes might shape a court’s attitude to claims like Bruce’s have been happening. Well before the courts decide Cubillo and Gunner, a not-for-profit organisation forms the National Sorry Day Committee. Established in response to the tabling of the Bringing Them Home report, the committee introduces an annual National Sorry Day, with the first to be held on 26 May 1998. When Bruce watches the evening news, he sees that people across Australia, Aboriginal and non-Aboriginal, have joined in their many thousands to mark the day. One million people have left condolence messages in Sorry Books. All mainstream media have given the day extensive coverage. He thinks it is good to have a Sorry Day, though he has not participated in any of the proceedings. He is still struggling, not in the mood to be involved in community events.
It does not stop there. The federal government establishes a Stolen Generations memorial in Canberra. On it, these words are inscribed: ‘This place honours the people who have suffered under the removal policies and practices. It also honours those Indigenous and non-Indigenous people whose genuine care softened the tragic impact of what are now recognised as cruel and misguided policies.’ Prime Minister Howard makes a statement of regret in parliament on 26 August 1999, couched in general terms, acknowledging past mistreatment and the resulting hurt and trauma for Aboriginal people. He does not specifically mention the Stolen Generations.
Working on any complex litigation involves labouring for long hours over many months, sometimes years. Richardson knows she can’t do it alone. Litigation of this complexity is a team task. Moreover, securing a team whose only focus is her case is not possible at the ALRM. Her unit is understaffed at the best of times; neither she nor her team can just drop all other cases, so their workload is intense. She knows there is no money to employ more staff and there won’t be for at least another few years, when the next round of federal funding becomes available. Richardson counts herself lucky that, over a number of years, she has had the help of many researchers, some paid but more often assisting as volunteers.26 She knows only too well that her adversary, the State of South Australia, does not labour under such constraints. She also knows that the trial judge will not be interested in her difficulties. If her case does not stack up, it will be thrown out. The government’s resources are also limited to a degree: the Crown Solicitor’s Office, too, has many other clients, and a finite number of staff to serve them. But it does not have to rely on volunteers to bolster its litigation team. The State has deployed Theresa Karpinski, a young, smart, energetic solicitor, to spend considerable time on the Trevorrow file, with the supervisory support of more senior solicitors in the office.
As is common in long-running, complex cases, Richardson, acting for Bruce, and Karpinski, for the State, will often appear at minor procedural hearings. When more complex procedural issues are at stake, the big guns—the QCs—will usually take their place: Layton for Bruce and Stephen Walsh for the State. At times when Layton and Walsh are unavailable, other barristers from the independent Adelaide Bar will appear, most often Andrew Collett or Nigel Wilson for Bruce and Patrick O’Sullivan for the State.27
While these procedural arguments are going on in the public arena of the court, Richardson and her volunteer researchers are busy in the background compiling more facts about Aboriginal children taken from their families. The Crown Solicitor’s Office is also bombarding them with documents, often which they had not asked for. This is part of the discovery process—a civil litigation procedure in which each party must make available to the other party all relevant documents that are not subject to legal privilege. This guards against courtroom ambush through which one party is confronted with evidence of which they were entitled to be aware but which the other party had withheld from them. In other words, it ensures that, in the interest of justice, courtroom argument ensues with each party having equal access to testimony. An insidious side-effect can be that a party can so inundate the other with documentation which, though relevant, is not material, that it diverts valuable time and resources from other essential work. It creates a fine line for the party supplying the documents between mischievous actions and withholding evidence. Oversupply is always an unwelcome possibility for an under-resourced legal team. On the other hand, in a letter dated 25 August 2003, the Department for Aboriginal Affairs and Reconciliation withdraws its approval for Richardson to access documents from the State Records office. Clearly, Richardson thinks, the State is not going to make her job easy.
Master of the Supreme Court, Judge Bowen Pain, presides over most hearings and conferences dealing with procedural matters that affect both plaintiff and defendant. The Supreme Court also has a case management procedure for civil cases to ensure that cases proceed to trial in an orderly fashion. Successive amendments to the statement of claim and constant requests by the State for better and further particulars of Bruce’s allegations are slowing the progress of the case to court. After yet another such hearing in 2004, in which Judge Pain rejects the State’s request to strike out certain paragraphs of the statement of claim, the State appeals the ruling.
Slowly, and patiently, Ric
hardson is gathering the elements of the plot of her courtroom drama. Yet there is much more to do before her barrister will have a story of the case that can be turned into a compelling narrative. ‘Hang in there, Bruce,’ she murmurs to herself, ‘we’re on our way.’
Chapter 11
THE JUDGE
Justice Thomas Gray sits in contemplative stillness, fingers resting idly on a just-closed file, its base perfectly aligned with the leading edge of his large jarrah desk, which is otherwise bare. Had he thought about it (he hadn’t), the geometric precision of the file might have been a visual metaphor for the dull rigour of procedural processing, which, for now, is all this closed file offers. No room for even constrained judicial creativity: just apply the procedural rules and move the case forward to trial. Little wonder his fellow judges were not rushing to claim this file for their own, no more than he had. He prefers appellate work.
Justice Gray has not taken the Trevorrow matter on because of its Aboriginal protagonist. He has felt no deep-seated need to fight for Indigenous justice as a special cause, yet over the years and with the cases he has taken on, he has gained considerable experience representing Aboriginal clients and sitting in judgment on a number of cases involving Aboriginal people. His neutrality is to be his strength in judging the Trevorrow case, his judgment of the issues not clouded by misplaced paternalism. Before going into law, Gray’s knowledge of Aboriginal culture was based on photographs he remembered viewing as a child of Aboriginal ceremonies, collected from his paternal grandfather, a pharmacist who lived at Orroroo.
Thomas Gray was born in 1946 and spent his childhood years in solidly middle-class Malvern, an inner-city suburb just south of the Adelaide central business district. His parents allowed him, his brother and sister a carefree life as children. He enjoyed running around the streets, exploring nature and playing cricket. When Bruce Trevorrow was on his way to Adelaide Children’s Hospital as a baby, Gray was probably playing backyard cricket with family and friends. Christmas at the Gray household was a time for all the family to come together. How different, he would think, had his life been from baby Bruce’s on that Christmas Day in 1957.
