Title: State of South Australia v Lampard-Trevorrow
- Citation: [2010] SASC 56; (2010) 106 SASR 331
- Court: Supreme Court of South Australia – Full Court
- Judges: Doyle CJ, Duggan & White JJ
- Date: 22 March 2010
- Areas of law: Tort, Procedural Fairness, Misfeasance, Fiduciary Duty, Negligence, Duty of Care
Case overview (State of South Australia v Lampard-Trevorrow)
This case concerns Bruce Trevorrow, an Aboriginal child who was forcibly removed from his parents in 1958 by the Aborigines Protection Board (APB) in South Australia, without their knowledge or consent. Decades later, he sued the State of South Australia for the harm caused by this removal. After Bruce passed away, the appeal was continued by his widow, Mrs Lampard-Trevorrow, as the executrix of his estate.
Timeline of Facts
Bruce was taken to hospital at 13 months old for illness (on Christmas Day 1957).
Instead of returning him to his parents, on 6 January 1958, the APB placed him in foster care with a white couple (the Davies) without informing or getting consent from his family.
For many years, his parents had no idea where he was, despite being in contact with the APB.
He was later returned to his family in 1966, but by then, he had already faced serious emotional and psychological harm. From age 11, he was in and out of state institutions. As an adult, Bruce suffered from depression, alcoholism, identity loss, poor health, and erratic employment.
Bruce later brought legal claims against the State.
Legal Issues and Findings of the Court (State of South Australia v Lampard-Trevorrow)
Authority under the Aborigines Act 1934 (SA):
Section 10 made the APB the “legal guardian” of Aboriginal children. However, the Court held this did not grant power to remove children from parents without consent. The APB exceeded its legal powers in Bruce’s case.
Procedural Fairness:
Though the law didn’t clearly recognize this at the time, even in 1957 Bruce’s parents should have been given notice and a chance to be heard before their child was removed. The APB failed to provide procedural fairness, violating their common law duties.
Misfeasance in Public Office:
The APB (or its Secretary) knew it lacked authority to place Bruce in care, yet did so anyway. This misuse of power amounted to misfeasance in public office, and the State was vicariously liable.
False Imprisonment:
The Court overturned the trial judge’s finding here. Bruce’s foster care didn’t meet the strict legal test for false imprisonment, as there was no total restraint akin to imprisonment.
Fiduciary Duty:
While a guardian-child relationship might involve fiduciary duties, the Court found the APB’s duties here did not amount to such a broad fiduciary breach. Any wrongdoing was due to acting without legal authority, not failing a fiduciary duty.
Negligence:
The Court upheld the trial judge’s finding that the APB owed a duty of care. It breached this duty by not assessing the risks of separating Bruce from his family or investigating his family’s situation, i.e., whether separation was truly necessary. Harm from that separation was foreseeable.
Limitation Period – Extension of Time:
The Court upheld the trial judge’s decision to grant an extension of time under the Limitation of Actions Act 1936 (SA). Bruce only discovered key facts about his unlawful removal in 1997, and he could not have filed earlier. The State’s failure to disclose information also contributed to the delay.
Decision
The Supreme Court of South Australia dismissed the State’s appeal in most respects. Bruce Trevorrow’s removal was unlawful, procedurally unfair, negligently handled, and a misuse of public power. The trial judge’s award of damages stood.
Why This Case Matters?
This was the first successful Stolen Generations case in Australia, holding a government liable in tort for removing an Aboriginal child without lawful authority. It set a precedent for how historical injustices involving colonial child removal policies could be challenged through modern legal principles.
List of references:
- https://www.austlii.edu.au/au/journals/AUIndigLawRw/2010/7.pdf
- https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2010/56.html
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