Ordered To Pay Costs Over Stolen Generations Test Case, Collard Family Appeal To High Court

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An Aboriginal family left devastated more than four decades after seven of their children were removed in the 50s and 60s are now asking the High Court to appeal a decision ordering them to pay the WA government’s legal costs following an unsuccessful Stolen Generations test case.

In the absence of any national or state-based compensation scheme for victims of the Stolen Generations, Donald and Sylvia Collard took their claim for damages to the WA Supreme Court in 2013, saying the state had breached its fiduciary duty in forcibly removing their children.

The Collards had seven of their children taken from them from 1958 to 1961 and placed in the ‘care’ of the Child Welfare Department, where they were separated into state homes.

The test case was the first of its kind in Western Australia and was significant for other Stolen Generations victims in the state who have waited a lifetime for full reparations.

Apart from damages, the Collards told the court they “wanted answers”. One daughter, taken from a hospital when she was only six months old, said she wanted “some explanation why I was taken as a little baby and why my life turned out the way it did because of this”.

Justice Janine Pritchard said in the judgement “there is no doubt that all the children, and Don and Sylvia, have been deeply scarred by their separation, by the fracturing of their family relationships and by their disconnection from their Aboriginal culture”.

But in April 2013, Judge Pritchard ruled against the Collards in a 410-page judgement, saying “the evidence leads to the conclusion that the state was not, and is not, subject to the fiduciary duties alleged by the plaintiffs”.

"Even if the state was subject to those duties, the plaintiffs did not establish that the state breached those duties, other than in relation to a decision which was made in November 1959 not to return Ellen to Don and Sylvia's care,” Judge Pritchard said.

It was a devastating decision for the family, with father Don Collard telling NITV at the time it had made him “bitter”.

Judge Pritchard ruled against the usual practice of the unsuccessful party covering the costs of the successful party, saying that the Collard’s case was “rare and exceptional” and they wouldn’t have to pay the WA government’s legal costs.

The WA government successfully appealed that decision this year, which could run into the tens of thousands of dollars.

The Aboriginal Legal Service of Western Australia and the Human Rights Law Resource Centre last week said it had asked the High Court for permission to appeal.

The Human Rights Law Centre’s Ruth Barson said the WA government’s appeal on costs had added “salt to the wounds” to an already devastating decision.

“Legal cases on issues of public importance, like redress for past policies of forced removal, are an important part of our legal system. While appropriate safeguards around litigation are vital, the ability to bring cases of public importance should not be restricted to the wealthy,” said Ms Barson.

“Losing such a significant case was devastating for the Collards, so being left with the Government’s hefty legal bill is just like adding salt to their wounds.”

Aboriginal Legal Service of WA CEO Dennis Eggington said the test case was critically important and that Aboriginal people shouldn’t be threatened by the prospect of huge legal costs on their path to justice.

“Families who had their children stolen, or people who were forcibly removed and grew up away from their families, suffered and continue to suffer tremendous grief. The Collards’ case was about shedding light on this grief, and achieving some sense of justice,” said Mr Eggington.

“Aboriginal people should have access to justice – particularly on such important public interest matters. Aboriginal people bringing important public interest legal cases shouldn’t face the threat of enormous legal costs being awarded against them.”

Amy McQuire

A Darumbul woman from central Queensland, Amy McQuire is the former editor of the National Indigenous Times and Tracker magazine.

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