Federal Court of Australia

Yasmin v Commonwealth of Australia (No 3) [2025] FCA 732

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (FCA Act), the Court approves:

(a)    the claims assessment methodology set out in the document described as “Schedule B to the Settlement Distribution Scheme”, which is reproduced in an Annexure to the Court’s reasons for judgment dated 3 July 2025;

(b)    for the purposes of cll 52 and 53 of the Settlement Distribution Scheme, the following amounts to be paid from the funds held in the Settlement Fund by Australian Unity Trustees, or from funds held by the Administrator in a trust account comprising part of the Settlement Fund, to the Administrator for Administration Costs:

(i)    $1,324,564.85 for Administration Costs incurred between approximately 21 October 2024 and 1 March 2025 and the subject of the report dated 1 May 2025 contained at annexure “MGB-4” of the affidavit of Mark Geoffrey Barrow affirmed on 2 May 2025; and

(ii)    $61,610 for Administration Costs being fees of Indonesian Liaison Officer Simon Philips Ryfal Badjo incurred between 20 February 2025 and 10 April 2025 and the subject of the report dated 12 June 2025 contained at annexure “SAT-1” of the affidavit of Samuel Alexander Tierney affirmed on 12 June 2025.

2.    Pursuant to ss 33V and 33ZF of the FCA Act and for the purposes of cl 56 of the Settlement Distribution Scheme:

(a)    the amount of up to $15,000 per month commencing 1 June 2025 is approved to be paid from funds held in the Settlement Fund by Australian Unity Trustees to the Administrator on account of Administration Costs which have been incurred or are expected to be incurred by the Administrator up to 1 December 2025;

(b)    the Administrator is authorised to use the amount paid under order 2(a) to pay disbursements which have been incurred or are expected to be incurred by the Administrator, including Counsel's fees, interpreter fees, scout fees, and Indonesian Liaison Officer fees, but may not use that amount to pay KCA fees, or his own fees without Court approval; and

(c)    orders 2(a) and 2(b) above shall operate nunc pro tunc so that the Administrator is authorised to spend a total of $75,000 in the period 1 June 2025 to 30 November 2025 in accordance with these orders.

3.    Pursuant to ss 37AF(1)(a), (b)(i) and (iv), 37AG(1)(a) and (c), and 37AJ of FCA Act, until the hearing and determination of the Final Distribution Application, in order to prevent prejudice to the proper administration of justice and/or to protect the safety of any person, the following material is not to be published or disclosed to or by any person or entity, and is to be restricted to the parties, the parties' legal representatives, the presiding judge and necessary court staff:

Affidavit of Mark Geoffrey Barrow affirmed on 6 June 2025

(a)    Table 1 at paragraph [35];

(b)    the Participating Group Member name referred to in the heading “Case Study 1”;

(c)    the Participating Group Member name referred to in paragraphs [74]–[81];

(d)    Image 1 at paragraph [77(b)];

(e)    the estimated Participating Group Member Entitlement referred to in paragraph [81];

(f)    the Participating Group Member name referred to in the heading “Case Study 2”;

(g)    the Participating Group Member name referred to in paragraphs [83]–[88] and [90];

(h)    Image 2 at paragraph [86];

(i)    the estimated Participating Group Member Entitlement at paragraph [90];

(j)    the Participating Group Member name referred to in the heading “Case Study 3”;

(k)    the Participating Group Member name referred to in paragraphs [91]–[95];

(l)    the estimated Participating Group Member Entitlement at paragraph [95];

(m)    Image 3 at paragraph [93(c)] and Image 4 at paragraph [93(e)];

(n)    the Participating Group Member name referred to paragraphs [100]–[101];

(o)    the estimated Participating Group Member Entitlement at paragraph [100];

Annexure “MGB-2” to Affidavit of Mark Geoffrey Barrow affirmed 6 June 2025

(p)    the Participating Group Member names referred to at pages 54–56 inclusive;

Annexure “MGB-3” to Affidavit of Mark Geoffrey Barrow affirmed 6 June 2025

(q)    the Participating Group Member names referred to at page 58;

Annexure “MGB-5” to Affidavit of Mark Geoffrey Barrow affirmed 6 June 2025

(r)    the Participating Group Member names referred to at pages 69–70 inclusive; and

Annexure “MGB-7” to Affidavit of Mark Geoffrey Barrow affirmed 6 June 2025

(s)    the Participating Group Member names referred to at pages 108–115, 117–119, 121 and 123–156 inclusive.

Annexure “SAT-1” to Affidavit of Samuel Alexander Tierney affirmed on 12 June 2025

(t)    the Participating Group Member names referred to at pages 22–29, 31– 33, 35 and 37–70 inclusive.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J

1    This consolidated representative proceeding was settled on the terms set out in a Deed of Settlement dated 4 October 2023 together with a Settlement Distribution Scheme (SDS). The settlement was approved on 22 December 2023 pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Yasmin v Commonwealth [2023] FCA 1661 (Yasmin (No 1)).

2    In broad terms, the settlement provided for the Commonwealth to pay a Settlement Sum comprising $27.5 million by way of compensation and an amount up to $2.5 million for Administration Costs, plus an amount in respect of the Applicant’s Party/Party Costs (with each of those terms being defined in the Deed of Settlement). The Group Members are unaccompanied Indonesian minors who arrived in Australia between 2007 and 2013 after having been apprehended on suspected illegal entry vessels (SIEVs), and who were then allegedly unlawfully detained or imprisoned on the basis that they were adults, before being removed to Indonesia. The Group Members were investigated for, and in some cases charged or convicted of, people smuggling offences under the Migration Act 1958 (Cth). The claims made in the proceeding are summarised in Yasmin (No 1) at [9]–[23].

3    On 26 February 2025, after the parties reached agreement on the amount of the Applicant’s Party/Party Costs, I made orders approving the payment of amounts to be deducted from the Settlement Fund in respect of the Applicant’s Other Solicitor/Client Costs (as defined in the Deed of Settlement) and the legal costs incurred in resolving the outstanding issues concerning the costs of the proceeding: Yasmin v Commonwealth (No 2) [2025] FCA 123 (Yasmin (No 2)).

4    Mark Geoffrey Barrow of Ken Cush & Associates (KCA) has been appointed as the Administrator of the Scheme.

5    By an amended interlocutory application dated 12 June 2025, the Administrator seeks the Court’s approval of:

(a)    a claims assessment methodology to be set out in proposed Schedule B to the SDS; and

(b)    payments to the Administrator from the Settlement Fund for Administration Costs of $1,324,564.25 incurred between approximately 21 October 2024 and 1 March 2025, and $61,610 in respect of fees of an Indonesian Liaison Officer incurred between 20 February 2025 and 10 April 2025; and

(c)    the payment to the Administrator from the Settlement Fund of the amount of up to $15,000 per month from 1 June 2025 until 1 December 2025 on account of Administration Costs which have been incurred or are expected to be incurred by the Administrator.

Claims assessment methodology

6    In his affidavit affirmed on 25 February 2025, the Administrator indicated that he intended to develop a claims assessment methodology to determine the entitlement to compensation of each Participating Group Member in order to effect the finalisation of the Scheme.

7    In that affidavit, the Administrator stated that it was becoming increasingly difficult for him to administer the Scheme in a way that fairly and reasonably balanced the interests of Group Members, in circumstances where the Administration Costs paid by the Commonwealth (that is, the amount of $2.5 million paid pursuant to the Deed of Settlement) had been exhausted and any future costs would therefore be Additional Administration Costs which (subject to the Court’s approval) are payable from the Settlement Sum available for distribution to Group Members.

8    The Administrator explained that, since the approval of the settlement, there had been an unanticipated increase in the number of potential Group Members who needed to be located and contacted, and whose claims needed to be assessed, giving rise to further costs beyond those which had been estimated at the time of settlement approval. As a result, the total Additional Administration Costs were likely to “exceed by a large measure the estimates given to the Court as at the date of settlement”. The Administrator considered that it was “neither fair nor reasonable that such large costs of distribution should be visited on the Participating Group Members”, and stated:

I am of the opinion that it is in the best interests of group members to consider and develop a streamlined way this Administration can be finalised whilst seeking to minimise to the greatest possible extent (having regard to my functions under the Scheme) the (approved) Additional Administration Costs which are to be deducted from the Distribution Sum.

9    As at the time of that affidavit, the Administrator indicated that the methodology for the evaluation of entitlements might include —

adopting an approach of “deemed eligibility” in respect of claims under certain threshold dollar value without undertaking the sort of verification exercises that I have been using to date, the use of technology (i.e., WhatsApp or other video service provider calls) to assess some complex claims from Australia, thus obviating or minimising any further travel to Indonesia together with any associated costs, and the application of time limits in relation to the provision of documents.

10    In his subsequent affidavit affirmed on 2 May 2025, the Administrator elaborated on the proposed claims assessment methodology, which he intended to develop into “a stand-alone document containing all of the assumptions and processes I propose to apply, which will then be the subject of an application by me for approval by the Court”. The processes for verification of Participating Group Members’ eligibility would be “less rigorous and stringent” under the proposed methodology. Nevertheless, the Administrator considered that this would allow him to exercise his functions under the Scheme “in a fair and proper manner for all Group Members”.

11    The affidavit explained in detail the proposed methodology, under which the claims of Participating Group Members would be separated into four categories, or “Tiers”, based primarily on the threshold value of the entitlement claimed and the existence of any information to suggest that the Participating Group Member might not have been a child at the relevant time. Each “Tier” would adopt “a separate methodology for assessing claims to attempt to balance the interests of all Group Members by minimising the Administration Costs of assessing lower value claims for the benefit of all Group Members”.

12    Approximately 40% of Participating Group Members have “Tier 1 claims”, that is, where the entitlement is less than $25,000 and the Participating Group Member informed Australian authorities at the time of entry that he was a child and does not appear to be an adult in his or her Nominal Roll photograph. The Administrator proposed that such persons would be “deemed eligible” to receive compensation under the Scheme, subject to a short interview in order to verify identity. While this would reduce the administrative costs associated with the assessment of such claims, there would remain a risk that a Participating Group Member who might otherwise have been found to be ineligible might be deemed eligible to receive compensation under a Tier 1 claim.

13    If the Participating Group Member informed Australian authorities that he was an adult, or he appeared to be an adult in the Nominal Roll photograph, or if the claimed entitlement is between $25,000 and $100,000, the claim would be assessed as a “Tier 2 claim”, requiring additional steps to assess eligibility, such as an interview being conducted with a family member.

14    Each of Tiers 3 and 4 involve claimed entitlements greater than $100,000. Tier 3 claims involve circumstances where the Participating Group Member was not convicted of an offence under the Migration Act or where any such conviction has been set aside. Tier 4 claims involve circumstances where the Participating Group Member was convicted of an offence under the Migration Act and that conviction has not yet been set aside, which may constitute an implicit judicial finding that the Participating Group Member was an adult at the relevant time. The Administrator proposed that Tier 3 and Tier 4 claims would be subjected to the same verification processes that have been conducted to date, but with interviews being conducted remotely by WhatsApp video calls between Australia and Indonesia. For Tier 4 claims, it was proposed that this would include obtaining sworn evidence in the form of written statements and affidavits from the Participating Group Member and other relevant witnesses as to his eligibility for compensation under the Scheme, and an application to the Court for directions about the payment of compensation to the Participating Group Member.

15    In his 2 May 2025 affidavit, Administrator provided estimates of the costs of the verification processes involved in each of the four Tiers, along with estimates of the number and value of claims in each Tier.

(a)    Tier 1 covers approximately 40% of claims, which will involve costs of up to around $228,000 (about $2,074 per claim) in determining estimated entitlements of around $852,600 combined;

(b)    Tier 2 covers approximately 42% of claims, which will involve costs of up to around $479,000 (about $4,162 per claim) in determining estimated entitlements of around $2.46 million combined;

(c)    Tier 3 covers approximately 10% of claims, which will involve costs of up to around $255,000 (about $8,800 per claim) in determining estimated entitlements of around $5.31 million combined; and

(d)    Tier 4 covers approximately 8% of claims, which will involve costs of up to around $469,500 (about $20,412 per claim) in determining estimated entitlements of around $9.02 million combined.

16    On 6 May 2025, as requested by the Administrator, orders were made requiring him to file an interlocutory application and material in support seeking, among other things, approval of the claims assessment methodology proposed in the “stand-alone document” foreshadowed in paragraph 7(a) of his affidavit affirmed on 2 May 2025.

17    The interlocutory application is supported by a further affidavit of the Administrator affirmed on 6 June 2025, to which was exhibited a proposed Schedule B to the SDS, which comprises the “stand-alone document” setting out the claims assessment methodology in respect of which approval is sought. A full copy of Schedule B is annexed to these reasons.

18    The methodology set out in Schedule B is consistent with that described in the earlier affidavit, with some minor modifications. In particular:

(a)    The definition of Tier 1 claims has been modified so that a Participating Group Member will be excluded from deemed eligibility under Tier 1 (and therefore will be assessed under Tier 2) if he provided any information to Australian authorities at the time of entry which suggests that he is not an eligible Group Member under the Scheme, including where the Participating Group Member informed authorities that he was accompanied by a family member on the SIEV. The definition of Group Members under the Deed of Settlement only covers minors who were unaccompanied.

(b)    In respect of Tier 4 claims, the Administrator now proposes to obtain statutory declarations in lieu of sworn affidavit evidence from the Participating Group Member and other relevant witnesses, in the light of doubts about the Administrator’s ability to administer oaths remotely from Australia.

(c)    Further, the Administrator no longer proposes to seek Court approval of his decisions on eligibility of any convicted Participating Group Members with a Tier 4 claim. It is instead proposed that, if the Administrator finds himself unable to determine a Participating Group Member’s eligibility for a Tier 3 or Tier 4 claim, he may refer the claim to the Court for determination prior to or as part of the Final Distribution Application.

(d)    Additional clauses have been included to address the assessment of compensation payable to eligible Participating Group Members who are deceased, on the premise that their entitlement to compensation is not extinguished but is payable to the person who is legally responsible for the distribution of the deceased person’s assets to their legal heirs in accordance with Indonesian law.

(e)    Where the Administrator is unable to obtain information from the Commonwealth in relation to a Participating Group Member before the Final Distribution Application, even after the Administrator has sought information from the Participating Group Member which might assist the Commonwealth to locate such information, the Administrator will ultimately seek approval that the Participating Group Member be deemed ineligible under the Scheme.

19    According to the Administrator’s affidavit, there are 11 Participating Group Members who are deceased. In each case, the notice of intention to participate in the settlement was provided to the Administrator by the deceased person’s spouse or relative. Most of the entitlements are Tier 1 claims (below $25,000), but there are two Tier 3 or 4 claims which have been estimated at $215,311 and $421,796 respectively. In some cases, the Administrator does not know the date of death. Where the date of death is known, it may have been prior to the commencement of the representative proceeding or prior to the date of settlement approval. In such circumstances, cl 15 of Schedule B purports to confer an entitlement to payment of compensation on the legal personal representative of the deceased Group Member. Clause 16 provides that cl 15 operates irrespective of whether the Group Member died following his removal from Australia but prior to the commencement of the Consolidated Representative Proceeding, following the commencement of the Consolidated Representative Proceeding but prior to the Approval Orders made on 22 December 2023, or following provision by him of written notice to the Administrator of his intention to participate in the Settlement.

20    Threshold questions might arise as to whether a person who was deceased at the time that the representative proceeding was commenced can properly be regarded as falling within the definition of Group Members set out in the Consolidated Originating Application and Consolidated Statement of Claim, and whether the Group Members as so defined can include the legal personal representative of the estate of any such deceased person. In the event that cll 15 and 16 of Schedule B are inconsistent with the definition of Group Members in the proceeding and under the Deed of Settlement, the latter must prevail. Further questions might arise as to the position if a Group Member dies during the course of the proceeding, although it may be possible to take steps to deal with that situation. These questions have not been argued before me on the present interlocutory application, and are matters that can be addressed in the first instance by the Administrator in the administration of the Scheme.

21    The question whether the Court should approve the Administrator’s proposed claims assessment methodology is governed by the same principles that apply to settlement approval under ss 33V and 33ZF of the FCA Act. Those principles are summarised in Yasmin (No 1) at [43]–[49]. In essence, the Court must consider whether the proposal is fair and reasonable and in the interests of Group Members considered as a whole. Given the stage at which the present questions arise, the question is primarily one of inter se fairness as between the Group Members, as opposed to fairness and reasonableness as between the parties to the proceeding. This includes considerations as to whether all claims are to be assessed by reference to the same principles and procedures; whether the assessment methodology is supportable as a matter of legal principle and consistent with the case that was to be advanced at trial; and whether that methodology is likely to deliver a broadly fair assessment, including whether the costs of a “more perfect” assessment procedure would erode the notional benefit of a more exact distribution: see Yasmin (No 1) at [62], referring to Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 at [43] (Moshinsky J). The Court must also be satisfied that the distribution scheme will be administered in a fair and reasonable way and will be implemented in a timely fashion: Jenkings v Northern Territory (No 5) [2021] FCA 1585; 398 ALR 8 at [19(c)] (Mortimer J).

22    In the present case, the Deed of Settlement and the SDS were not prescriptive of the process by which claims by Participating Group Members would be assessed and entitlements to compensation would be determined. Relevantly, cl 5.2(d)(iii) of the Deed of Settlement contemplates that the Settlement Scheme would include provisions for —

the assessment of claims pursuant to a streamlined, non-adversarial process in which the Scheme Administrator gathers information relating to each Group Member, and assesses each claim pursuant to the criteria set out in the Settlement Scheme, contacts the Group Member if necessary, and makes a determination as to the value of the claim …

23    Within the parameters of the Deed of Settlement and the SDS, the Administrator’s role and functions encompass the determination of an appropriate approach to the assessment and verification of claims made by Participating Group Members in a manner that balances the interests of the Group Members as a whole. As mentioned above, the Deed of Settlement envisages that the assessment process will be “streamlined” and “non-adversarial”. It is arguably within the scope of the Administrator’s discretion in administering the Scheme to adopt a pragmatic approach in relation to the eligibility of claims of relatively low value, having regard to the costs involved in the verification of those claims and the benefits to Group Members as a whole.

24    This is the mischief at which the proposed claims assessment methodology in Schedule B is directed. One of the main objects of this methodology is to address Tier 1 claims, in so far as there might otherwise have been a concern about deeming such claims to be eligible without full verification. The methodology also loosens the verification processes for Tier 2 claims, many of which are also of relatively low value. In circumstances where the Administrator proposes to continue to follow his existing processes for Tier 3 and Tier 4 claims, each of which involve an entitlement in excess of $100,000, there is arguably less need for the assessment methodology now to be articulated in a stand-alone document. Nevertheless, the claims methodology in Schedule B will clarify the approach to be adopted in conducting interviews and obtaining evidence remotely with the assistance of scouts in Indonesia.

25    It might have been sufficient for Administrator to provide the Court with an affidavit in which he explained the methodology and processes that he proposed to adopt in administering the Scheme, without necessarily seeking the approval of an amendment or addendum to the SDS in order to incorporate a document setting out that methodology. Ultimately, however, there may be some benefit in terms of consistency and transparency in having the claims assessment methodology included in a schedule to the SDS.

26    The proposed claims assessment methodology is designed to minimise the Additional Administration Costs involved in the assessment of lower value claims, in an attempt to balance the interests of Group Members as a whole. In the circumstances, and based on the evidence adduced by the Administrator, I am satisfied that the methodology contained in Schedule B is fair and reasonable as between Group Members and is likely to deliver a broadly fair assessment of claims. It is in the interests of all Participating Group Members to minimise costly and time-consuming verification processes in relation to low-value claims. The savings in Administration Costs that would otherwise be deducted from the Settlement Fund are likely to offset any risk associated with paying ineligible claims. The use of technology to conduct interviews remotely with the assistance of scouts in Indonesia will avoid or reduce the costs involved in travel to Indonesia to conduct such interviews or other verification processes. To the extent that the methodology involves judgment calls being made by the Administrator, I consider that this is within the bounds of reasonableness.

27    Accordingly, the claims assessment methodology contained in Schedule B is approved.

Administration costs

28    Under the Deed of Settlement and the SDS, any Additional Administration Costs (that is, beyond the amount of $2.5 million in Administration Costs to be paid by the Commonwealth) are to be deducted from the Settlement Fund, subject to approval by the Court. At the time of settlement approval, it was anticipated that the cost of administering the Scheme would exceed $2.5 million, and that there may ultimately be an application for approval of Additional Administration Costs of “up to $1.5 million”: Yasmin (No 1) at [57]. In other words, it was anticipated at that time that the cost of administration up to final distribution would be up to $4 million. The estimate of Administration Costs contained in Schedule A of the SDS was a total amount of $3,317,033.75.

29    Since settlement approval, a number of applications have been made for the approval of Administration Costs incurred by the Administrator. In each case, these applications have been supported by a report from an independent costs consultant, Ms Kerrie-Ann Rosati. To date, the Court has approved the following amounts to be deducted from the Settlement Sum in respect of Administration Costs:

(a)    on 21 June 2024, amounts of $388,512.20 and $1,334,414.45 (which were the subject of reports by Ms Rosati dated 20 May 2024 and 18 June 2024 respectively);

(b)    on 20 September 2024, an amount of $981,959.57 (which were the subject of a report by Ms Rosati dated 9 September 2024); and

(c)    on 26 February 2025, an amount of $590,520.51 (which were the subject of a report by Ms Rosati dated 5 December 2024).

30    Accordingly, the total amount of Administration Costs approved to date is $3,295,406.73.

31    The Administrator now applies for approval of an amount of $1,324,564.85 for Administration Costs incurred between approximately 21 October 2024 and 1 March 2025. Those costs are the subject of a report by Ms Rosati dated 1 May 2025.

32    Further, the Administrator seeks approval of an amount of $61,610 in respect of the fees payable to an Indonesian Liaison Officer incurred between 20 February 2025 and 10 April 2025, in respect of which invoices were inadvertently omitted from the instructions provided to Ms Rosati for the purposes of her report dated 1 May 2025. Ms Rosati provided a further report dated 12 June 2025 (exhibited to an affidavit of Mr Samuel Tierney affirmed on 12 June 2025), which separately addresses the reasonableness of those fees.

33    It is apparent that these additional costs will take the Administration Costs to date beyond the $4 million threshold that was anticipated at the time of settlement approval, to an amount of almost $4.7 million. Further, this is in respect of the period to March 2025, and there will be further costs incurred in the administration of the Scheme before the Final Distribution. The Administrator has provided an estimate of those future Administration Costs from 6 May 2025 in the range of $2,818,110 to $2,888,290 (including goods and services tax).

34    It follows that, on current estimates, the total Administration Costs will be approximately $7.5 million, of which around $5 million will be deducted from the Settlement Fund available for distribution to Group Members. Together with the deductions already approved in respect of the Applicant’s Other Solicitor/Client costs, this is likely to leave approximately $20 million for distribution as compensation entitlements, which represents about 66% of the total settlement amount (excluding party/party costs paid by the Commonwealth). As against this, it may be noted that, to the extent that the costs incurred in assessing and verifying the claims of Participating Group Members results in the exclusion of some claims as ineligible, this will result in a corresponding increase in the value of the claims of eligible Participating Group Members. In other words, the costs of administering the Scheme may be partially offset by resulting benefits to Participating Group Members.

35    It remains of some concern that there has been such a dramatic increase in the Administration Costs since the settlement was approved by the Court. I accept that this has largely been caused by the relative complexity of the tasks involved in identifying and locating Group Members and assessing their eligibility under the Scheme, along with the particular challenges arising from the unique characteristics of a class comprising foreign nationals spread across remote parts of Indonesia. Nevertheless, the point may come at which the Court’s protective function in relation to the interests of Group Members precludes the approval of any further increase in the Administration Costs, notwithstanding any report from an independent costs consultant about the reasonableness of those costs: cf. McDonald v Commonwealth [2025] FCA 380 at [119]–[120], [360]–[361], [363]–[365], [387], [597] (Mortimer CJ); Street v Western Australia [2024] FCA 1368 at [146], [224], [226] (Murphy J). In this context, the questions usually addressed by costs consultants are primarily concerned with the reasonableness of fees and expenses, as opposed to whether or not it is in the interests of Group Members considered as a whole for such costs to be incurred. The latter remains a question for the Court. Without pre-empting any future application, the Court is likely to take a dim view of any increase in costs beyond current estimates, particularly if the outcome were to reduce the amount of the Settlement Fund available for distribution to Participating Group Members below $20 million. One would expect that there are no longer any further “unknowns”, whether known or unknown, that might emerge between now and the final distribution.

36    Having regard to the fifth report from Ms Rosati dated 1 May 2025, I accept that the costs and expenses incurred by the Administrator between October 2024 and March 2025 were charged in accordance with the SDS and the KCA costs agreement and, subject to the adjustments or reductions made by Ms Rosati, were fairly and reasonably incurred in the administration of the Scheme. Accordingly, I approve the payment from the Settlement Fund of Administration Costs in the amount of $1,324,564.85.

37    Further, having regard to the sixth report from Ms Rosati dated 12 June 2025, I accept that the costs and expenses incurred by the Administrator for work performed by Mr Simon Phillips Ryfal Badjo in his capacity as the Indonesian Liaison Officer between 3 February 2025 and 10 April 2025 were fairly and reasonably incurred in the administration of the Scheme, together with the costs of the sixth Rosati report. In this regard, I note that the work performed Mr Badjo is in the place of the assistance formerly provided by Mr Colin Singer and Ms Ibu Aat Kaswati, whose fees were previously approved as Administration Costs and as a component of the final costs orders in the proceedings (as to the latter, see Yasmin (No 2) at [50]–[57]). Given the present location of the Participating Group Members, it is clearly necessary for the Administrator to engage someone to provide liaison services in Indonesia. Accordingly, I approve the payment from the Settlement Fund of Administration Costs in the amount of $61,610.

38    Finally, the Administrator seeks an order for the payment from the Settlement Fund of a monthly amount of $15,000 on account of Administration Costs to be incurred, with authority to use that amount to pay disbursements including the fees of counsel, interpreters, Indonesian scouts, and the Indonesian Liaison Officer. Clause 56 of the SDS provides for the Administrator to seek approval for funds in the Settlement Fund to be paid to him on account of Administration Costs to be incurred. While cl 56 is in terms directed to an application made by the Administrator at the time of settlement approval, and the Court made orders at that time approving the payment of an amount of $700,000 on account of Administration Costs, subsequent orders were made on 21 June 2024 and 25 February 2025 to approve the payment of $300,000 on account of Administration Costs to be incurred up to 31 December 2024, and $160,000 on account of Administration Costs to be incurred up to 31 March 2025. In the light of these orders, it is appropriate to make a further order approving the payment of a monthly “pre-payment” of up to $15,000 on a similar basis, on account of Administration Costs which have been incurred or are expected to be incurred up to 1 December 2025. It is clear from the Administrator’s affidavit affirmed on 6 June 2025 that this is intended to cover five monthly payments amounting to a total of $75,000 (on the basis that the payments are made in respect of costs incurred in each month from June to November 2025).

39    Finally, I will make confidentiality orders under ss 37AF and 37AG of the FCA Act in the terms sought by the Administrator, in respect of certain information in the affidavits relating to the names and entitlements of individual Participating Group Members, consistently with previous orders made in the proceeding.

Associate:

Dated:    3 July 2025

ANNEXURE