Peter Haig, a senior associate at Allens Arthur Robinson, was part of the legal team that acted for Neville Austin, an Aboriginal plaintiff, in his recently settled case against the State of Victoria. Haig tells his story.
|From left, Peter Haig, Neville Austin and Maryjane Crabtree at an Allens Arthur Robinson press conference announcing the settlement of Austin's claims against the State of Victoria.|
That is the situation that my colleague, partner Maryjane Crabtree, and I faced in June when the State of Victoria settled its long-running case with Neville Austin, an Aboriginal man who had sued the State over his separation from his mother in the 1960s and 70s.
Sitting beside Neville in a press conference announcing the settlement, at which Neville read the State's letter of apology and explained what it meant for him to have received it, was one of the most satisfying times I have had as a lawyer. It represented the culmination of what had been a hugely challenging and rewarding two years I spent on the case.
The case exposed me to a raft of fascinating and complex issues - both from a legal and a non-legal perspective.
Until the landmark decision of the Supreme Court of South Australia in Trevorrow v South Australia in 2007, litigation by victims of the 'stolen generations' had been a largely fruitless avenue for redress. That decision, and the Federal Government's subsequent apology to the 'stolen generations', were hailed in some quarters as "opening the floodgates" for such proceedings.
Though distinguishable in many respects, Neville's case bore some similarities to Trevorrow. The fact that it did not proceed to judgment, however, means that, unlike Trevorrow, it sets no legal precedent.
Had the settlement of Neville's claim not included a letter from the Department of Human Services acknowledging and apologising for the State's wrongdoing, the conclusion of the case may not have been reported in the press, let alone the law reports. It was that letter, remarkable for its content, that Neville sees as vindicating his determination to pursue this litigation.
In particular, it is the last paragraph in the letter that is most significant: "Please accept this letter as a true apology and expression of deep regret on behalf of the State of Victoria".
Neville's case was referred to Allens from the Public Interest Law Clearing House (PILCH) in late 2007. As with all pro bono matters that are referred to Allens, Neville's case was assessed by the firm's Pro Bono Committee. PILCH had by that time received a written advice from Jack Rush QC, who had undertaken a merits review of Neville's potential claim. The fact that a senior barrister considered the matter worth pursuing was significant. So was the fact that the matter involved assisting an Aboriginal man, as providing assistance to Aboriginal and Torres Strait Islander communities is one of the Pro Bono Committee's priority areas.
We were aware that it would be a difficult case requiring the commitment of considerable resources. Nevertheless, we saw it as an important contribution that we could make towards helping Neville tell his story and seek redress.
The resources devoted to Neville's case, and the efforts and standards applied, were every bit as great as for an equivalent billable matter. Having worked on a previous large-scale piece of pro bono litigation at Allens (representing Vickie Roach in her successful 2007 High Court challenge to voting laws disenfranchising prisoners), I know that this is the way the firm treats pro bono matters.
"Sitting beside Neville in a press conference announcing the settlement, at which Neville read the State's letter of apology and explained what it meant for him to have received it, was one of the most satisfying times I have had as a lawyer."
Upon accepting the matter, Allens assembled a team of lawyers from the litigation and dispute resolution department, overseen by Maryjane, to act for Neville. That team spent many months making freedom of information requests, foraging through old files, and meeting with and taking statements from Neville and other potential witnesses.
Significant legal research was undertaken to determine how to best formulate and pursue Neville's claim. The claim was filed in the Supreme Court of Victoria in early 2008, but not ultimately served until 2010. It was alleged that the State, as Neville's legal guardian, breached its common law and statutory duties to act in Neville's best interests in the years Neville spent as a ward of the State.
Until I took over her role in August 2009, the Allens team was led by Holly van den Heuvel, then a senior associate and now at the Victorian Bar. By the time she left for the Bar, Holly had developed a relationship with Neville that was vital to the running of the case. This relationship was largely forged through at times very confronting sessions with Neville, in which he recounted his story - parts of which were long-suppressed and very painful.
For Neville, whose life has been marked by tragedy and regular upheaval, the creation of an environment in which he felt secure and comfortable was essential. Managing the transition from Holly to me had to be handled delicately.
After assuming Holly's role (Holly continued to work on the case as Jack Rush QC's junior barrister), I developed a strong and trusting relationship with Neville. Without the level of trust and understanding that developed between the team and Neville, I am certain that the outcome we achieved would have been impossible.
As with any long-running matter in a big firm, the composition of the team changed over time, with junior lawyers rotating into other departments and moving in other directions. The particular sensitivities of this case, however, necessitated that we attempt to minimise any rupturing of relationships. Accordingly, Tim Goodwin, a lawyer who would ordinarily have moved off the matter following his rotation into a new department, remained part of the team through to settlement. Tim, who is himself Aboriginal, brought valuable insights into Aboriginal culture and, along with Andrew Barraclough and the other Allens lawyers involved, poured time and effort into getting to know Neville and understand his motivations.
The legal issues we confronted were varied and complex, including difficult questions of statutory liability, causation and assessment of damages. Given the passage of time, we also encountered difficult statute of limitations issues.
While unlikely to open any "floodgates", what the settlement of this case shows is the willingness of this State Government to consider cases on their individual merits and to be open to negotiating settlements that properly recognise those merits, including by apologising for the conduct of the relevant authority.
The apology given in this case has been immensely healing for Neville and for his community.