Procedural justice, conflict of interest and the stolen generations' case

The Cubillo and Gunner hearing in the Federal Court of Australia possessed enormous historical, political and moral significance. The applicants ' suit against the Commonwealth argued that having been removed they were then wrongfully detained, that government breached its statutory and fiduciary duties and duty of care, and the Commonwealth was responsible for the injuries and damages they incurred as a result of their removal and detention. They sought monetary compensation and exemplary damages. In response the Commonwealth government sought to have the case for damages dismissed on a variety of grounds. From the perspective of the plaintiffs, the case had the potential to set an important precedent. From the Commonwealth's perspective a lot was at stake. Beyond the financial costs, the government's reputation was at risk. The Cubillo - Gunner action tested the Australian legal system's capacity to deal justly with a critical range of moral, historical and political issues raised by the 'stolen generations'. In his judgment delivered on 11 August 2000, O'Loughlin J dismissed each of the claims for damages by Lorna Cubillo and Peter Gunner. In this article attention is given to aspects of the case that have not yet received due consideration. It is argued here the Commonwealth government had an overriding resolve to win the Cubillo - Gunner case, which sat incongruously with the principle and practice of the federal government as a 'model litigant'. I consider whether the Commonwealth breached those standards in respect to three central elements of the model litigant standards - namely (1) the exercise of proportionate power, (2) the over-reliance on technical defences, and (3) a proper regard for accepting a responsibility to administer justice and fair play. I ask whether the appointment of Meagher as the Commonwealth's leading counsel was in the public interest?