Batley, Paul --- "Seeking a Civil Remedy for Uncivil Acts: Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales" [1995] AboriginalLawB 32; (1995) 3(73) Aboriginal Law Bulletin 21

• Seeking A Civil Remedy For Uncivil Acts

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Seeking a Civil Remedy for Uncivil Acts

Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales

Unreported, NSW Court of Appeal

23 December 1994

by Paul Batley

Joy Williams was born at Crown Street Women's hospital in September 1942. She was taken from her mother at, or shortly after, birth and placed in Bomaderry Children's Home under the supervision of the United Aborigines Mission.

Many records cannot be found, but it seems clear that Ms Williams was made a ward of the Aborigines Welfare Board ('the Board') very shortly after her birth and was one of an estimated 5 500 children removed from Aboriginal parents in New South Wales between 1883 and 1969. The Board, originally the Aborigines Protection Board, was abolished in 1969 and the "welfare" of Aboriginal children became the province of the State's child welfare authorities under the Child Welfare Act.

In April 1947 the Secretary of the United Aborigines Mission wrote to the Board describing Ms Williams as a "white child" and requesting her removal to "a Home for white children at Wentworth Falls". The letter went on to explain that Bomaderry was overcrowded and might have to close unless the number of children was reduced. "By the removal of the white children this purpose will be partly achieved, as well as children being placed in [a] more suitable environment". On 16 April 1947 Joy Williams, then aged four and a half, was admitted to Lutanda Children's Home, an orphanage for white children operated by the Plymouth Brethren at Wentworth Falls. The reason for her admission was expressed on a Lutanda form as follows: "To take the child from association of Aborigines as she is a fair skinned child."

Ms Williams lived at Lutanda until 1960 when she turned 18. Her evidence is that she believed herself to be a white child among other white children. She learned, as did other children of her generation, to have a low opinion of Aborigines. She felt, inexplicably, different from the other orphans. She was not placed in foster homes or adopted. She alone of all the children remained in the home at Christmas. She ran away several times and was brought back by the police. It was after one of these unsuccessful abscondings that she was told that she was Aboriginal. She recalls being told, "You have mud in your veins." She says that she cut her arms to see if she could find mud in her blood.

Ms Williams was a vagrant in the years following her discharge from Lutanda. She served a term of imprisonment in 1961. Between 1962 and 1965 she had eight admissions to psychiatric hospitals. Her first daughter became a ward and was adopted. She had two more children. She met her mother in 1973. In the early 1980s she was reunited with other members of her family at Cowra through Link Up.

In 1985 Ms Williams commenced a Bachelor of Education degree at Wollongong University. She now has a Master's degree and is a published poet.

In 1987 Joy Williams sought legal advice about whether she might have a claim for compensation arising out of her removal and upbringing. She saw a psychiatrist in 1988 who found that her adult psychiatric difficulties were, on the balance of probabilities, the consequence of her institutionalised childhood.

Ultimately, in October 1991 Ms Williams was examined by Professor Brent Waters, an expert in childhood and adolescent psychiatry. He diagnosed a serious psychiatric condition that, more likely than not, was a result of her treatment as a child and adolescent. Her referred to published literature of the 1930s and 40s which warned that failure to provide a sufficiently nurturing environment for children could and often would, create severe problems which would continue into adulthood.

After being refused legal aid and being unable to secure alternate sources of funding, Ms Williams commenced proceedings in the New South Wales Supreme Courtt for negligence, breach of fiduciary duty and wrongful imprisonment. She applied for an extension of time within which to bring her claim under the Limitation Act 1969.

This application relied on transitional provisions giving effect to amendments to the Limitation Act for causes of action which accrued before the amendments took effect on 1 September 1990. Time could be extended by the Court in this case if the application was made before 1 September 1993 (the end of the transitional period) and the court "decides that it is just and reasonable to do so"(section 60C).

Studdert J, at first instance, decided that the inquiry into whether it was "just and reasonable" to extend time required an application of the "latent injury" test in Section 601 of the Limitation Act. This requires the plaintiff to prove that at the expiration of the Limitation period s/he:

“i. did not know that personal injury had been suffered;
ii. was unaware of the nature or extent of personal injury suffered;
iii. was unaware of the connection between the personal injury and the defendant's act or omission”.

It also requires proceedings to be commenced within three years of the time when the plaintiff became aware (or ought to have become aware) of all of the three listed matters.

Studdert J found that the normal limitation period for Ms Williams would have expired six years after her 21st birthday, namely September 1969. He found that she was not aware of the nature, cause or extent of her injury until she received Professor Waters' report in October 1991 and that she had applied for an extension within three years of that date.

However, he then went on to find that it was not just and reasonable to extend the limitation period on two grounds:

i. insufficient evidence to establish the cause of action; and
ii. prejudice to the defendant caused by the delay.

His Honour found that the Board was doing no more than applying the "inappropriate and erroneous" assimilationist policies of the day and the question of negligence has to be decided with reference to the standards and state of knowledge of the 1940s. he held that there was no evidence that the Board had any alternative than to place Ms Williams at Bomaderry and then Lutanda. This meant that Ms Williams had not shown that she could make out a negligence claim and that her claim for breach of fiduciary duty failed for the same reason. He found there was no evidence to suggest that the taking of Ms Williams by the Board was unlawful and the wrongful imprisonment claim was bound to fail.

His Honour's other ground for refusing an extension was equally important. He said that the delay in bringing proceedings had irreparably damaged the defendant's capacity to defend the claim. Documents which were created in the 1940s could no longer be found. Officers of the Board and employees of Lutanda were deceased or very elderly or could be inferred to be no longer able to give evidence. It was not just and reasonable to extend time because the defendants could not "have a fair trial".

He concluded:

"The history of the plaintiffs childhood is a very strange one and nobody could reflect upon it without the stirring of much sympathy. However I cannot allow my decision to be dictated by emotion. Having weighed all the circumstances of this case, I am not satisfied that it would be just and reasonable to order that the limitation period be extended."

Studdert J's decision was reversed by a majority of the Court of Appeal. Kirby P, with whom Priestly JA agreed, found that Studdert J made an error of law when he found that Ms Williams' claim for breach of fiduciary duty fell within the time limit imposed by the Limitation Act and that the fiduciary claim could proceed, subject to the equitable defence of laches, whether or not the time limit for the negligence and false imprisonment claims was extended.

He held that the error vitiated Studdert J's discretionary decision and that it was convenient for the Court of Appeal to exercise the discretion afresh. The court had heard evidence from ANU historian Dr Peter Read, about alternatives to placement at Lutanda in the 1940s. There was also evidence that some staff of Lutanda were alive and remembered Ms Williams and that the psychiatrist who treated her in the 1960s was also available.

Kirby P held that the delay could cause ‘considerable disadvantage’ to the defendants but that the new evidence showed that there were people and material available to assist them to meet Ms Williams' case. He found that there was sufficient evidence to suggest that Ms Williams had "viable" causes of action, so that an extension of time would not be a futility.

His Honour said that:

"Justice in this case involves consideration of both sides ... There is an element of justice which requires, in my respectful view, the agitation and determination of her claim in an open trial, with her entitlement (or lack thereof) decided on the merits. If she can make good her contentions, she has suffered a grievous wrong at the hands of the agencies of the State."

He concluded:

'The law which has often been an instrument of injustice to Aboriginal Australians can also, in proper cases, be an instrument of justice in the vindication of their legal rights. It is not just and reasonable in this case to close the doors of the Court in Ms Williams' face. She should have her chance to prove her case. She might succeed. She might fail. But her cause will have been heard in full. It will then have been determined as our system of law provides to all Australians Aboriginal and non-Aboriginal- according to law, in open court and on its merits."