Williams v Minister, Aboriginal Land Rights Act 1983 & Anor S246/2000 [2001] HCATrans 284 (22 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S246 of 2000

B e t w e e n -

JOY WILLIAMS

Applicant

and

THE MINISTER, ABORIGINAL LAND RIGHTS ACT 1983

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001 AT 2.00 PM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC: If the Court please, I appear with my learned friend, MS C.E. ADAMSON, for the applicant. (instructed by Kingsford Legal Centre)

MR C.T. BARRY, QC: I appear with my learned friend, MR D. COWAN, for the respondents. (instructed by the Crown Solicitor for New South Wales)

GLEESON CJ: Yes, Mr Hutley.

MR HUTLEY: Your Honour, this application raises four issues of general importance, in our respectful submission. Firstly, what is the proper approach of an appellate court, the Supreme Court of New South Wales, under section 75 of the Supreme Court Act to findings of fact where the Court of Appeal is of no disadvantage to that of the trial judge? Secondly, if such a review requires the identification of error, what is meant by that term in those circumstances? Now, our submission is that if error is required, it is demonstrated by a difference of opinion. Thirdly, whether a duty of care or fiduciary duty was owed by the Aborigines Welfare Board to the applicant, at least in respect to the question of the duty of care, a question described by the Court of Appeal as one of great significance? Fourthly, and if such a duty did exist, what was the standard required of the Board in the circumstances of this case?

GLEESON CJ: Mr Hutley, did all the causes of action that your client pursued against these defendants involve damage as a necessary element?

MR HUTLEY: Yes, your Honour. The breach of fiduciary duty strictly would not require damage as a necessary element for there to be a breach but for any recovery there would have to be damage.

The Court of Appeal upheld a number of critical factual findings of the trial judge in circumstance where the latter had no advantage on the ground that the appellant in the Court of Appeal had not established error. The Court of Appeal did not consider the issue of duty of care or fiduciary duty and particularly what, in the circumstances, such a duty would have required of the Board.

Both steps were, in our respectful submission, a necessary precursor to a consideration of the trial judge's findings of fact at the trial. His Honour had found that there was no duty of care or fiduciary duty and had made no express finding as to what the standard of care would have been had he established that.

The failure, in our respectful submission, of the Court of Appeal to determine those questions involved a failure to comply with its duty under section 75A(6) of the Supreme Court Act, namely the duty to determine the issues necessarily raised by the appeal. That failure, in our submission, necessarily led the Court of Appeal into error if the appellant's submissions as to the duties and their content were as submitted. As if so as submitted, and the content of that duty, your Honours will find at page 543 of the third volume of the application book. I will turn to it in detail.

The failure, as we submit, led the Court of Appeal into error because the Court of Appeal, if that standard were the required standard, would have been required to determine (1) how the applicant, in fact, behaved at the Lutanda home; (2) what the carers of the applicant, in fact, knew about the conduct of the applicant; and (3) whether the disclosure of that behaviour to an appropriately attuned representative of the AWB would have led to a recommendation that the applicant be sent to a child guidance clinic for attention. The evidence was had such a recommendation been forthcoming she would have been taken to such a child guidance clinic. Fourthly, what would have occurred to the applicant had she been so taken?

Just by way of background: the applicant was a ward of the Aborigines Welfare Board under the Aborigines Protection Act from shortly after her birth on 13 September 1942 until her 18th birthday. Between 1942 and April 1947 she resided at an institution at Bomaderry run by the United Aborigines Mission. Thereafter, until 1960, she resided in an institution known as Lutanda, which was run by persons associated with the Plymouth Brethren. Between 1947 and 1960 no officer of the Aborigines Welfare Board ever visited Lutanda to inquire after her position.

At trial the trial judge rejected the applicant's claim on all bases. His Honour found that there was no duty, whether fiduciary or at common law, there was no breach of any duty and any breach of duty would not have caused any damage.

McHUGH J: But did not the trial judge make a finding that there was no ground or reason which would have justified the referral of the applicant to some form of psychological or psychiatric care?

MR HUTLEY: Your Honour, that can be answered in a number of ways. Yes, but that finding - and it is one of the findings referred to by the Court of Appeal - was in a context where his Honour had found that there was no duty and then went on to consider what would have happened had the Aborigines Welfare Board visited but made no finding as to what the standard imposed upon the Aborigines Welfare Board in that visit would be. His Honour, in effect, found that the Aborigines Welfare Board would have been satisfied by being told by the carers that my client was, in their opinion, normal.

Now, as we submitted, the standard of care, if there be a duty, was a standard of care which imposed upon the Board an obligation to bring to bear in the process of inquiry, not an inquiry after psychological conclusions by persons not attuned to the problems which the state of knowledge which the Board was seized of, would inform the Board that a problem may be evolving but rather to ascertain facts which the state of learning which the Board was seized of would inform an informed member of the Board that a problem could be evolving.

McHUGH J: The difficulty about all this is that your case was radically transformed between trial, in fact between the pleading stage of the trial and the Court of Appeal.

MR HUTLEY: Your Honour, at the pleading stage there were transformations and we accept that. At the trial this was the case put and we actually have, if it would assist, the entire submissions made at first instance and the entire submissions were based on a case which was to this effect. My client was subjected to a risk of attachment disorder at Bomaderry. My client went to Lutanda.

McHUGH J: There was a finding of fact, was there not, that when she left Bomaderry she was perfectly all right.

MR HUTLEY: Your Honour, we challenged that finding of fact in the Court of Appeal and the court, in our respectful submission, erred in requiring us to demonstrate "error" and, in our respectful submission, under section 75(6) we are entitled in respect of a finding where the Court of Appeal was in no different position to the trial judge to the Court of Appeal determining for themselves their answer to that question.

GLEESON CJ: Where do we find the Court of Appeal dealing with that finding?

MR HUTLEY: Your Honours will find it at - the Bomaderry finding is 534, paragraph 95 of the application book. The finding was a finding that she was not at risk or that she was, as it were, normal in essence. It said:

I would reject the first of these submissions. The finding may have been a difficult one to make -

this was to do with the degree of attachment with Sister Saville -

and it may have rested on necessarily exiguous materials. But it was a finding open to the trial judge, and the evidence marshalled against it does not demonstrate that it was appellably wrong.

Now, in our respectful submission, the Court of Appeal was in exactly the same position as the trial judge. This was all material which was essentially documentary. They were all accepted for this purpose.

Your Honour, our central submission is this. This was a finding about the psychological state of a 41/2-year-old child by his Honour at a remove. Our submission is that to make that finding one can only make it on subsequent material. In other words, you cannot know whether someone is psychologically harmed or not except from finding whether their conduct is consistent with the existence of such harm.

His Honour made a finding in relation to her psychological state on material solely directed to her contacts at Bomaderry. As I am reminded, behaviour associated with attachment disorder starts to manifest in years later than the years she was there. We submitted that, in effect, his Honour - really no one was in a position, on the basis of that material, to make a finding of normalcy.

GLEESON CJ: Is the finding referred to in paragraph 95 the finding that we find in paragraph 94?

MR HUTLEY: No. Your Honour, it essentially goes back to the finding concerning Sister Saville.

GLEESON CJ: If you look at paragraph 94, there is a reference to a finding:

that the plaintiff experienced bonding and attachment -

about Sister Saville and then there is a submission about that finding, made by your side, which:

was "a finding which his Honour could not make", was "a finding beyond his Honour's capabilities as the trial judge to make", and was "a finding that no judge could come to".

Are they not dealing with those submissions in paragraph 95?

MR HUTLEY: Yes, your Honour, but the finding of bonding - some bonding was a possibility. The critical ultimate finding of his Honour was that she had achieved a bonding to an extent that she was normal.

GLEESON CJ: But if the Court of Appeal is dealing with an argument from counsel, expressed in terms of the argument recorded in paragraph 94, why is it not appropriate for the Court of Appeal to deal with that argument according to its terms?

MR HUTLEY: Your Honour, because in terms it was not the full extent of the argument and secondly, the Court of Appeal applied a test to it that the question as to whether they found contrary to the trial judge was one of demonstrating error.

GLEESON CJ: There just is not any doubt, is there, that in paragraph 95 they are dealing with the submission in paragraph 94?

MR HUTLEY: Yes, your Honour.

GLEESON CJ: Because paragraph 94 refers to three submissions. Paragraph 95 refers to the first of those submissions. Paragraph 96 refers to the second of the submissions and paragraph 97 refers to the third of the submissions.

MR HUTLEY: Yes, your Honour.

GLEESON CJ: So the origin of the language in which they expressed themselves in paragraphs 95, 96 and 97 is to be found in the language of the submissions with which they were dealing, is it not?

MR HUTLEY: No, your Honour. Your Honour must go back to the test which their Honours considered they had to apply in determining whether a question of fact of this character should be challenged and they found that one had to demonstrate that the trial judge was wrong and your Honour will see that - - -

GLEESON CJ: But the question of fact is about the relationship between the child and Sister Saville.

MR HUTLEY: Yes, your Honour, but the importance of that fact was whether the bonding was such as to render the child beyond the risk of attachment disorder. The submission was that to say there was some bonding really took the matter not very far. The question was, had this child been at risk of deficient bonding? The Court considered - - -

GLEESON CJ: On page 533 at line 11, whether they were right or wrong, they stated that the evidence:

does not permit a positive conclusion that there was a risk.

You may disagree with that statement but that is their finding.

MR HUTLEY: Your Honour, with respect, no. The question has to be looked at from this point of view. The position at Bomaderry was that the child was there for a number of years. The position was there were certain conditions existing at Bomaderry of crowding. The position, as we submit it was, is that a finding as to normalcy is a finding which is not one which can be made internal to the facts of any person's upbringing because, quite frankly, it is not observable as one of the text said. It is like trying to say the only way you know you have rickets is if it manifests certain symptoms. The question of whether one is or is not properly attached or a risk of attachment has fallen in can only be determined by subsequent conduct. One simply cannot know of any child, whether that child is or is not properly attached, until one observes what the consequences are.

McHUGH J: But this argument of yours seems to lead to a conclusion that the actual facts of the case have really nothing to do with this case, that the Board's breach lay in not having procedures which would have examined the state of affairs at Bomaderry, said this can give rise to this disorder and, therefore, any child living in that environment should have been examined. Is that - - -

MR HUTLEY: Your Honour, the state of knowledge evolved. At trial we submitted in the first instance the state of knowledge when she was born was sufficient to give rise to that. There were questions, of course, associated with the war which would have impacted, as we conceded, on the performance of what one could have done about the problem but his Honour found as a fact that, by 1951, the state of knowledge of the Board was such that it was aware that children brought up in institutions, which had the characteristic of Bomaderry, that is crowded, many young children, et cetera, et cetera, were at risk that subsequently they would develop the symptoms of attachment disorder.

McHUGH J: That is what I am saying. That is why, it seems to me, that your arguments about these particular findings seem to be rather irrelevant.

MR HUTLEY: Your Honour, except that the only important finding was his Honour's finding that she was perfectly normal because if his Honour found that she was perfectly normal, his Honour - - -

McHUGH J: On your argument you can live with that, because that is what you would expect to be observed.

MR HUTLEY: No, no. His Honour found that as a psychological fact. We accepted, for the purposes of appeal, that her behaviour did not exhibit the problem because when you are subjected to this condition your behaviour starts to manifest subsequently.

GLEESON CJ: Can you tell me what sort of a person is not at risk of psychological harm?

MR HUTLEY: Your Honour, theoretically speaking, every person has a risk of psychological injury in the same way as every person has a risk of just about every illness in the world. The question is, have you been exposed to conditions which heighten that risk.

GLEESON CJ: What sort of child in an orphanage is not at risk of attachment disorder?

MR HUTLEY: Your Honour, that again is a matter of science. Attachment disorder effectively, and the risk of it, the evidence was, is an increasing risk depending upon the period at which one becomes exposed to areas of deprivation of attachment. From the area of nought to about - and the precise ages - two or three, it is extremely high. From three to four onwards it decreases. From five, if the interruption takes place, from about five onwards it falls away to very little. The learning in Bowlby is, if you are there from ground zero, as my client was, effectively you are in the high risk category. That was the learning which the Board became aware of, as his Honour found, in 1951. So the Board then became seized of the fact of my client had been a ward of theirs since she was one month of age. It became seized of the fact that the Aboriginal Welfare Board at Bomaderry had experienced conditions of great crowding and - - -

GLEESON CJ: Thank you, Mr Hutley.

MR HUTLEY: Your Honour, so we accepted - - -

GLEESON CJ: I think your time is up, Mr Hutley. Yes, Mr Barry.

MR BARRY: Your Honours, the finding made by the trial judge in relation to the matters of fact that my learned friend seeks to agitate appear first, relevantly, at page 80 at paragraph 148. About line 20 down to about line 25 there is the finding that was made in relation to that issue by the trial judge and on page 83 is the, perhaps, critical finding on this question made at first instance. It starts in paragraph 154, line 11 through to line 25, and that leads then to the conclusion that your Honours will find at page 84, line 20.

McHUGH J: But, you see, on the case that is put against you all these findings are irrelevant, that they do not meet the duty case that is put against you. The duty case is not whether or not this particular child was showing a manifestation of any psychiatric or emotional disorder but whether she was put in an environment which exposed her to a risk which required a particular field of expertise to examine. Now, what her particular situation was, or may have been observed to be, seems to be irrelevant on that case and what is put against you is that it was necessary to determine the duty and the standard of care required.

MR BARRY: The answer to the first point that your Honour makes is that there were different cases presented at trial than presented on appeal. At trial the case was presented as a factual one, namely that she was, in fact, a disturbed child. The evidence of the disturbance was the behaviour in so far as there was evidence available given by other young people with whom she resided at Lutanda and the subsequent behaviour that she exhibited after she left Lutanda. That was rejected. That case was then, as I think it was put in the written submissions, transmogrified to a different case on appeal, that is a case that there was a risk that she might develop an attachment disorder leading to subsequent psychiatric disability.

McHUGH J: I do not know where it leads to, but it seems to me that the case is now put, the effect is that every child at Bomaderry and, perhaps, every child in an institution after 1951 at the latest should have been perceived as being at risk and should have been given special attention and care and examination and that it is put against you that that was not done.

MR BARRY: That would logically follow from the way in which the case was presented in the Court of Appeal but that was not the question of fact that the trial judge had to decide. The question of fact the trial judge had to decide was not was there a risk but was this, in fact, a child who exhibited signs of disturbance which warranted psychiatric intervention.

McHUGH J: But may it not raise the question as to, notwithstanding the way the case was conducted at the trial, whether or not they could run this new case on appeal?

MR BARRY: Not if the trial judge was not given the opportunity of deciding it.

McHUGH J: That depends whether it was necessary to make findings of fact, I suppose.

MR BARRY: It was, but it was only necessary to make findings of fact that the issues raised required and that his Honour did in fairly unequivocal terms.

HAYNE J: Now, some, at least, of this is related, is it not, to Professor Katz's evidence?

MR BARRY: Yes.

HAYNE J: I have in mind the evidence appearing at page 530 of the application book in volume 3, paragraph 90 of the Court of Appeal, where the Professor expressed opinions which, at lines 30 to 32, were said to be based in part upon an assumption that the plaintiff had "demonstrated disturbed behaviour" and was "known to be a troublesome child before" admission to Lutanda.

MR BARRY: That is so. That was the question of fact which the parties presented for determination and the trial judge decided it adversely to the plaintiff. So no question at first instance of "risk" arose.

GLEESON CJ: Now that is the question of fact to which paragraphs 94, 95, 96 and 97 are directed. Is that right?

MR BARRY: That is so, your Honour.

GLEESON CJ: And the response, as I understand it, in those paragraphs, 95, 96 and 97, which is said to evince a failure by an appellate court to discharge properly its duty to consider the findings made by the trial judge appears to be a response to the submissions that are put in paragraph 94.

MR BARRY: That is so, your Honour.

GLEESON CJ: Which are put in inverted commas.

MR BARRY: Yes. That is the way I would read it and our submission is that the way in which the Court of Appeal dealt with that was by examining the findings made by the trial judge in relation to the facts upon which Professor Katz based the opinion and coming to the conclusion that the trial judge had rejected the factual substratum, as it were, of Professor Katz's opinion and, therefore, the opinion.

GLEESON CJ: Am I right in thinking that, what I will call the issue about the relationship with Sister Saville, in a sense, had its origin in the assumption revealed by Professor Katz at page 530, line 30?

MR BARRY: That is so, but Professor Katz had made an assumption which was directly contrary to the finding of fact made on that question by the trial judge and then the trial judge took the view that in those circumstances the opinion only being as useful as the facts upon which it depended for its conclusions and it was one that ought to be rejected and did so.

It follows, in our submission, that on the question of duty, this was not a case where the determination of the extent of a fiduciary duty or whether there was one owed at all arose because of the way in which the facts were determined. The Court of Appeal, in our submission, correctly eschewed the prospect of trying to determine on a case, which was not an appropriate vehicle for such an important question, what the content of any such duty might be because of the way in which the case was fought at first instance and because of the findings of fact that were made by the trial judge on that question.

Your Honours would have observed that the case was an unusual one. It required a trial judge to make findings of fact relating to matters of fact of some antiquity and - - -

GLEESON CJ: That was because of the leave that was given to commence proceedings although they would otherwise have been barred.

MR BARRY: That is so, your Honour. But that is why the case was unusual to the extent that the evidence relied upon by the applicant depended upon the experts drawing inferences about circumstances which they thought must have existed, in effect, back in the 1940s and 1950s because there was no contemporaneous material of a technical or scientific nature available at the time. That put the case in a somewhat unusual circumstance, so the only way that the trial judge could decide what facts were established was by the evidence of people who were there at the time.

GLEESON CJ: How old was the applicant at the time this matter came on for trial?

MR BARRY: She was born in 1942; late 50s.

GLEESON CJ: That tells me all I need to know. She is four years younger than I am.

MR BARRY: She was quite young, your Honour.

GLEESON CJ: She is approaching middle age.

MR BARRY: That is so, your Honour, and our submission is that it was not necessary for either the judge at first instance or for the Court of Appeal to try to lay down some general principles in relation to fiduciary duty in view of the particular circumstances of this case and the way the facts were determined at first instance. It just was not the right case for those sort of questions to be determined and the Court of Appeal, in our respectful submission, correctly eschewed the task for those reasons. Those, your Honours, are our submissions.

GLEESON CJ: Thank you. Yes, Mr Hutley.

MR HUTLEY: Your Honour, the fallacy in my learned friend's submissions is this, that it proceeds on the basis that the only opinion sought from Dr Katz was on the basis that my client, the applicant, exhibited disturbed behaviour whilst at Bomaderry.

GLEESON CJ: I am not sure about that. I thought it proceeds on the basis that the paragraphs that you criticised in your submissions in the reasoning of the Court of Appeal were paragraphs that were dealing with an argument that was raised by Professor Katz.

MR HUTLEY: Yes, your Honour, but one has to appreciate that Professor Katz gave a series of opinions on varying assumptions. He gave an opinion, and your Honours have to be seized of the evidence. Until the first day of the trial the Crown had put forward an affidavit of a Mr Sattler, who was a director of Lutanda. He had given evidence that my client was the most troublesome child they had ever had at Lutanda and she was most troublesome when she arrived, from the very beginning. Therefore there was evidence that she was troublesome. Mr Sattler was unable to give evidence. The Crown decided not to read his affidavit and we read it and given leave to it.

During the course of the trial certain other evidence came to light. Professor Katz gave opinions, such as the opinion referred to at page 530 in paragraph 3 on the basis that her behaviour was "disturbed". He also gave alternate opinions - - -

GLEESON CJ: Before she was admitted to Lutanda.

MR HUTLEY: Before she was admitted to Lutanda. But the next paragraph he gave an opinion on the basis of assumptions which did not include that assumption because it was appreciated during the course of the case that there would be a factual issue at the end of the day as to whether she was exhibiting that behaviour when she arrived at Lutanda, therefore at Bomaderry.

Professor Katz opined that if she was exhibiting disturbed behaviour when she arrived at Lutanda that was an extraordinarily serious case. He also opined that even setting that aside, making assumptions which did not involve that assumption, she was in a position of risk.

Now, with all due respect to my learned friend, the case was not run on the basis solely that she was exhibiting disturbed behaviour when she was at Lutanda. The case was always run on the basis that being at Bomaderry exposed her to a risk. Now, true it is that because of findings of his Honour the case was focused on appeal but no one submitted on the appeal that we were debarred from the case we sought to run because of the conduct of the case at trial. My learned friends made no such submission before the Court of Appeal. The Court of Appeal never directed such - - -

GLEESON CJ: No, I think his point was simply that when you are reading the reasons for judgment at the Court of Appeal and, for that matter, the trial judge and criticising the way in which they expressed their conclusions, it is necessary to remember the course of the trial.

MR HUTLEY: Yes, but one was dealing with multiple opinions from Professor Katz with different sets of assumptions because there were issues about various matters. One of the bases run was the conditions at Bomaderry exposed her to a risk and Professor Katz's evidence was you could not tell whether the risk would fall in or not. That was to be considered by reference to subsequent conduct.

So, the case put on appeal was perfectly consistent with his Honour's case at trial, which his Honour in his judgment saw as a case about whether my client was normal or abnormal and had been exposed to conditions where she had not achieved a sufficient attachment to become normal. The question, we submit, is that the Court of Appeal has not engaged or fulfilled its obligation under section 75A to deal with findings consistent with that case. Those are our submissions.

GLEESON CJ: Thank you, Mr Hutley.

The outcome of this case turned upon decisions of the trial judge and the Court of Appeal on complex issues of fact which were further complicated by the manner in which the case was conducted at first instance and on appeal. We are not satisfied that there are sufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

Is there an application for costs?

MR BARRY: Yes, your Honour.

GLEESON CJ: With costs.

MR BARRY: May it please the Court.

GLEESON CJ: We will adjourn to reconstitute.

AT 2.38 PM THE MATTER WAS CONCLUDED