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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-18 Daily Xml
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TREVORROW, MR B.

The Hon. M. PARNELL (17:21): I move:

1. That the Legislative Council notes that—

(a) On 1 August 2007, the late Mr Bruce Trevorrow became the first member of the stolen generation to successfully sue the state for compensation as a result of his removal from his family as a baby;

(b) Mr Trevorrow was awarded and paid compensation of $775,000, including interest;

(c) the state government has launched an appeal against the judgment;

(d) the state government has undertaken not to seek recovery of any of the compensation payment or interest as a consequence of the appeal; and

(e) in relation to legal costs, the state government has expressly reserved its right to seek recovery of legal costs on both the original action and the appeal against the widow and estate of the late Bruce Trevorrow.

2. The Legislative Council calls on the Attorney-General and the Premier to direct that the lawyers representing South Australia provide the court and the respondent with an undertaking that, regardless of the outcome of the appeal, it will not seek to recover any legal costs from the widow or the estate of the late Bruce Trevorrow.

Last week was the first anniversary of Sorry Day but, because of the tragic events in Victoria and the parliamentary drama involving the $42 billion stimulus package, this important anniversary was all but lost in the media. That is a real shame because it is important for us to keep the momentum going on the road to reconciliation.

I do not think any of us could forget the emotion of the formal apology delivered by the Prime Minister in parliament. Millions watched it on television and I, along with other members, watched it on the big screen set up in Elder Park and it was an important national moment. As the first anniversary approached a week or so ago, it was by sheer chance that a friend of mine rang and asked whether I knew about the latest developments in the Trevorrow case. I did not, because the most recent judgment in that case was handed down on Christmas Eve and the only reporting it received was a very small item in The Australian on Boxing Day. So, it was, very much by circumstance, buried in the holiday media.

What I did know was that Bruce Trevorrow was the first member of the stolen generation to successfully sue the state government for wrongful removal from his family as a baby. I knew that he was awarded some $500,000 plus interest by the Supreme Court of South Australia, and I also knew the state government had appealed against that decision. In fact, the South Australian government appeal was only a fortnight after the Prime Minister's apology. So, the timing was pretty awful.

At that time, which was a year ago, I urged the government not to appeal but instead put in place a mechanism for compensation for the stolen generation outside the court system. The Greens said that we needed to have a process that did not involve members of the stolen generation having to run the gamut of the court system, with all of the costs and the stress that that process entails. We wanted the government to set up a special compensation tribunal, and I made that same call way back in 2007, when the original Trevorrow decision was handed down.

The decision to appeal against the Trevorrow judgment, whilst it was condemned by many, was softened a little by the announcement that the state would not seek to recover the compensation paid to Mr Trevorrow. Numerous assurances were given to this effect by the Crown Solicitor, representing the state. Also, the Attorney-General said in a radio interview, which was broadcast on 29 February 2008, that the government was 'letting Mr Trevorrow keep that money. That was our pledge'. Later he said, 'Mr Trevorrow's payout is his to keep.'

Sadly, Mr Trevorrow passed away last year, but the appeal against the judgment is being maintained now against his widow. What I did not know until last week—and that is why I have raised this matter now—is that the state of South Australia has steadfastly refused to rule out the possibility of chasing Mr Trevorrow's widow for legal costs in relation to the original decision and this latest appeal. On 12 November 2008, the Crown Solicitor wrote to the solicitors representing Mr Trevorrow's widow saying:

I am instructed to advise you that the state reserves its right to recover from the estate any costs awarded as a consequence of the outcome of the appeal.

Lawyers for Mr Trevorrow's widow argued that the appeal should be permanently stayed; in other words, permanently postponed so as to give effect to the government's commitment not to seek recovery of the compensation. The court declined to do that, but the court was clearly concerned that Mr Trevorrow's widow was being put in an invidious position. His Honour Justice White said:

It can be seen that the state has expressly reserved the right to recover from the estate any costs which it may be awarded as a consequence of the outcome of the appeal. Those costs may include (depending on the outcome of the appeal) some or all of the costs of the appeal and some or all of the costs of the trial.

There is no doubt that those costs will be substantial. My understanding is that the first trial went for around a month or so; an appeal is likely to go for a lengthy period as well. On Christmas Eve last year, as I said, the court handed down its decision on whether the case should continue. After deciding that the case could continue, His Honour Justice White said in his conclusion:

The circumstances of the trial at first instance, and the content of the notice of appeal, indicate that the hearing and determination of the appeal will be a substantial matter. The task of this court will be made much more difficult if it does not have the benefit of submissions from counsel for the respondent [Mr Trevorrow's widow], as well as from counsel for the state. One can readily understand the reluctance of the present respondent to commit the estate's resources to the defence of the appeal if the effect will be to diminish substantially the estate's assets. In these circumstances, I refer for the consideration of the state the approach mentioned by Gleeson...Chief Justice [and Justices] Gummow and Heydon in [the High Court case] CSR Ltd v Eddy...

His Honour went on to quote from that judgment, as follows:

It is common in this court in cases where the resolution of a point is desirable from the point of view of a large and recurrent litigant, whether corporate (for example, an insurance company) or governmental (for example, the Commissioner of Taxation or the Australian Competition and Consumer Commission), but the other party to the litigation is not a recurrent litigant and is not well-positioned to meet adverse costs orders on the point being tested, for the grant of special leave to be made conditional on appellants paying the other side's costs in any event and on appellants not seeking to disturb costs orders in the courts below which were favourable to the other side.

This is about as broad a judicial hint as it is possible to make. What His Honour Justice White is effectively saying to the state government is: you should have a serious think about whether justice is being served by your refusal to rule out chasing Mr Trevorrow's widow for legal costs. They are my words, but that is effectively what His Honour was getting at.

In my estimation, it is quite likely that the combined legal costs of the parties would be many times the value of the original compensation. That means that the award of damages could effectively be wiped out, with huge legal bills remaining to be paid by Mr Trevorrow's widow. I think it would be a heartless government indeed that went down that track.

The solution to this problem is very simple: the Attorney-General or the Premier need to instruct the lawyers representing the state of South Australia in this appeal not to pursue legal costs against the Trevorrow family on the appeal. I am comforted by some of the public comments made by the shadow state attorney-general in this matter. On the ABC's PM program on Tuesday 16 December, which I think was the day on which arguments were heard in the Supreme Court on this question of costs, Isobel Redmond, the shadow minister, said:

I'm puzzled and saddened as to the idea that the government is thinking of taking action in a case where the costs could well outweigh the amount of compensation that was involved in the first place.

In that interview she also said:

But if the case results in a cost finding against the claimants, then I expect that there'd be resistance to every claim forcing every claimant to go onto a court case and the fear of the costs and therefore the lack of getting their compensation.

In the same interview in that program the chief executive of the Aboriginal Legal Rights Movement, Mr Neil Gillespie, said:

Well, I'm very disappointed that the state is even continuing its appeal against the landmark decision for Bruce Trevorrow. To be so penny-pinching that it's going to pursue costs, or it may pursue costs, is nothing short of appalling.

I think that if the government does not resile from its current position it may well show the community that the apology that was given this time last year, and that we so strongly supported, was not much more than a hollow piece of theatre. I think the apology was worth more than that, and I think those of us who engaged in that debate strongly believe that. We need to ensure that the injustices of the past are not perpetuated into the future. I commend this motion to honourable members.

Debate adjourned on motion of Hon. B.V. Finnigan.

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