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Neil Foster
Mon, 19 Nov 2007 11:54:47 +1100
Cases of restitution for historic wrongs


Dear Chaim, Lionel and colleagues;

While it is not precisely what Chaim is asking about, the recent South Australian decision of Trevorrow v State of South Australia (No 5) [2007] SASC 285 (1 August 2007) raises some of these issues. In Australia the "Stolen Generations" issue refers to Aboriginal children removed from their families and placed into the care of non-Aboriginals or institutions. Mr Trevorrow was the first claimant awarded significant damages for the consequences of his removal. The action succeeded in misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence. An extension of time was granted in those common law actions that required it; but it was also noted that the equitable action for breach of fiduciary duty would have been successful, and that was not subject to a limitation under SA law. An equitable "limitation" defence of laches was rejected - see [948] ff.

However, the case is not quite what Chaim was looking for, of course, since the events are not perhaps old enough to be "historic" wrongs (the removal of Mr Trevorrow occurred in 1957, and time did not even begin to run against him until he turned 18. And there was no action for restitution.

While I don't know a lot about it, I know there has also been research into the issue of money that was paid to Aboriginals who were under the "protection" of the State, and paid into "trust funds" which were never released. See 'Eventually They Get It All' ... Government Management of Aboriginal Trust Money in New South Wales [2007] UNSWLRS 45 (6 August 2007). I am not sure whether or not this has been the subject of litigation, or is being addressed more at a political level.


Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
MC159c, McMullin Building
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931


>>> Lionel Smith 19/11/07 10:37 >>>

Chaim, a recent Canadian case of that kind concerned a racist "head tax" levied on Chinese immigrants in the late C19 and first part of the C20, which was litigated quite recently; unjust enrichment was one of several claims. The claims failed on substantive grounds, the limitation point being left aside: Mack v. A.-G. (2002), 60 O.R. (3d) 737 (C.A.), leave to appeal refused (2002), 101 C.R.R. (2d) 375 (S.C.C.). A political settlement was later reached. There was a conference in 2003 that led to a book, Dyzenhaus and Moran, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (2005).

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