States loses costs bid in Stolen Generation test case
A WA family who launched a landmark 'Stolen Generation' test case has been spared an estimated $400,000 costs order after the State lost a bid to recoup the money it spent successfully defending the law suit.
Supreme Court Justice Janine Pritchard yesterday ruled against a State submission for the nine members of the Collard family to pay its costs, finding there were special circumstances because the action had been a test case.
A spokeswoman for Attorney-General Michael Mischin the State was disappointed by the Supreme Court costs decision and the State Solicitors Office was considering whether an appeal would be warranted.
The spokeswoman there had been a "significant amount of legal resources expended in defending the action" and while costs had not been fully calculated, the defence was likely to have cost an about $400,000.
Donald and Sylvia Collard and seven of their children launched the potential multi-million-dollar action, claiming the State had breached a fiduciary duty owed to the family after it forcibly removed the siblings from their parents' care between 1958 and 1961.
In a 410-page judgment delivered in December, Justice Janine Pritchard dismissed the claim for damages after finding that the State was not subject to the fiduciary duties alleged by the family.
The State then sought an order for the Collard family to pay its costs, arguing there should be no departure from usual orders.
But in yesterday's decision, Justice Prichard found the case involved novel legal principles, the action had significance for other Aboriginal people who were made wards of the State and the claim sought to develop the law.
"Having regard to all of these circumstances, I am satisfied that this is one of those rare and exceptional cases where the justice of the case warrants a departure from the usual order as to costs," Justice Pritchard said. "In this case, there should be no order as to costs, so that the parties will bear their own costs."
