Federal Court of Australia
Wreck Bay Aboriginal Community Council v Commonwealth of Australia [2023] FCA 660
NSD 70 of 2021 | ||
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BETWEEN: | WRECK BAY ABORIGINAL COMMUNITY COUNCIL First Applicant JULIE ANN FREEMAN Second Applicant | |
AND: | COMMONWEALTH OF AUSTRALIA Respondent | |
DATE OF ORDER: | 19 June 2023 |
THE COURT ORDERS THAT:
1. Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the proposed settlement of the proceeding on the terms set out in the heads of agreement dated 23 May 2023 be approved.
2. Pursuant to s 33ZB of the FCA Act, all persons who are group members who have not opted out (Group Members) are affected and bound by Order 1.
3. The matter be stood over for a further case management hearing on a date to be fixed.
4. A copy of these reasons be provided to the 896 registered Group Members (in respect of whom the solicitors for the applicants have contact details).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
LEE J:
1 My job as a judge today is to work out whether the settlement of the Wreck Bay class action against the Commonwealth about PFAS contamination is fair and reasonable to those who are part of the class action (group members).
2 The solicitors (Shine) and the barristers for Wreck Bay Aboriginal Community Council and Julie Freeman think it is fair and reasonable.
3 These reasons explain to group members and anyone else who is interested why, after looking at it in detail, I agree with Shine and the barristers and think the settlement should be approved.
4 I have asked Shine to send these reasons to the 896 group members presently known to Shine, who have provided their contact details.
5 By now, everyone who knows they are a group member (approximately 955 people) should have seen a notice or a video (available at https://www.shine.com.au/service/class-actions/pfas-contamination-class-actions/jervis-bay-pfas-contamination) and may have gone to a community meeting I required to be held at Wreck Bay explaining what was going on. To anyone listening today, Mr Edwards SC has explained the approach taken by those who agreed to the settlement.
6 The five key points are:
(1) the Commonwealth will pay $22 million to Wreck Bay Aboriginal Community Council, Julie Freeman and the group members;
(2) the amount is being paid to finalise all claims for loss to the value of the Wreck Bay Land, for inconvenience and upset, and impact to the use of the Wreck Bay Land, including traditional use;
(3) even though they are paying the money, the Commonwealth does not admit they did anything wrong;
(4) this settlement does not stop a claim for injury being brought for those who have gotten sick or died (or may get sick or die in the future), and someone says the Commonwealth should pay because it is the fault of the PFAS; and
(5) up to $5 million will go to pay the legal costs, so Shine estimates at least $16.5 million will be the amount of money left to be paid to everyone after additional distribution costs.
7 I am not working out today how much should go to everyone who says they are a group member. That will be set later after I have got the assistance of an expert, Mr Joshua Creamer, in working out a final list of who actually is a group member.
8 I will approve the costs being paid now because they are capped and after seeing lots of these types of cases, the costs (although they might seem large) are within what would be expected for a complex case like this.
9 I asked the barristers, who are very experienced in matters like this, to write a detailed opinion explaining why they think the settlement is better than me having to decide the case and work out who wins and who loses. Everyone can see this opinion because I have attached it. The opinion refers to one confidential document (Schedule B), which I will also make fully available to anyone that wants to read it after the time passes to appeal the settlement. Schedule A was not relied upon.
10 The opinion shows things have been thought through carefully and it makes sense to me.
11 Although there was no doubt about the PFAS contamination, and the community strongly believes a great wrong has been done, the class action is very complicated and raises difficult questions. For example:
who knew what about PFAS and what knowledge would be said at law to be the “knowledge” of the Commonwealth;
the effect of special legal limitations that apply to dealings with the Wreck Bay Land;
a novel claim for damages because of the loss of use of the Wreck Bay Land for cultural and traditional purposes (although claims for cultural loss have been considered in other areas of the law, the present case raises new issues as to how the Court approaches measuring such damage);
real questions as to whether the loss claimed was legally caused by the Commonwealth doing something wrong at the time it could be proved it was using PFAS; and
real questions about how much money would be able to be awarded even if the class action was successful.
12 I think these risks pointed out by the barristers are very real ones.
13 I read 42 submissions from community members and heard today from 12 group members (the Court received 29 written submissions and Shine received 13). I am grateful for those who took the time to write and to speak at the hearing. I have taken all these submissions (particularly the objections) carefully into account. They will remain on the Court file to be read by anyone who wants to read them. I will also direct a digital recording of the oral submissions of community members be kept with the papers.
14 The most important thing coming out of the objections is how deeply the community feels about the contamination of the land and the spiritual and cultural damage it is said to have caused.
15 Another important objection was concern about people within the community continuing to become sick. I understand the seriousness of that concern, but the settlement does not mean no action can be taken about personal injury. I told everyone at the hearing and repeat it now: group members should take legal advice about any personal injury claim they may have.
16 A concern was also raised about distribution of the money, but this will be addressed later.
17 The other objections were that the damage is so great that the settlement sum is simply not enough and the Commonwealth is not admitting liability. Many people were concerned about the impact of PFAS on future generations.
18 It is understandable people in the community will feel a very great wrong has been done and that more money should be paid and the Commonwealth should admit it is liable.
19 All I can say is three things.
20 First, there is a difference between an event happening which people consider to be wrong and whether it is possible, as a matter of law, to say that someone else is legally responsible for that wrong and, if so, all the claimed losses.
21 Secondly, if the case went to a hearing and did not settle, I would be required to decide it according to law – not on what some people might think is “fair” – a topic upon which people might have different views. For the reasons the barristers have explained, this might mean no money is recovered or significantly less than is now offered. For my part, having read and seen the evidence of what it appears the Commonwealth actually knew when it apparently stopped using PFAS at Wreck Bay, the risk of getting less than the settlement amount at a hearing is very real.
22 Thirdly, I can’t make the Commonwealth pay more money or make an order restoring the land – I must decide whether the deal that has been agreed is fair – not some other deal. I also can’t get the Commonwealth to admit legal liability – the whole point of the settlement is because this is disputed and the settlement avoids a complex hearing to work out whether the Commonwealth is liable.
23 The barristers and Shine have, in my view, carefully weighed all relevant matters, as have I when reviewing the materials given to me and hearing the submissions today. There is no doubt that the settlement is well within the range of settlements that can be regarded as being fair and reasonable having regard to all the circumstances.
24 I approve the settlement. Orders will be put in place to record the settlement and, as soon as possible, to distribute the money to be paid under it justly
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. |
Associate:
Dated: 19 June 2023
