Federal Court of Australia

McDonald v Commonwealth of Australia (No 3) [2025] FCA 1048  

ORDERS

ORDERS APPROVING VARIATIONS TO THE SCHEME

THE COURT NOTES THAT:

A. Unless otherwise stated, a capitalised term in this Order bears the same meaning as that as defined in the Settlement Deed, including the Scheme, made between the Applicant and the Commonwealth of Australia and dated 30 August 2024, as varied by the Orders dated 16 September 2024, 14 November 2024 and 28 May 2025.

B. For the purposes of clause 5.2 of the Deed, the parties have agreed in writing to the variations of the Scheme approved by this Order.

C. In addition to the variations of the Scheme approved by this Order, the Report of Applicant, Respondent and Administrator on Conduct of Registration Process and Administration of Settlement Distribution Scheme filed on 22 August 2025 contains general guidance to the Administrators, reflecting the Parties’ agreement on their intentions concerning eligibility for the Scheme, and an agreed position between the Parties and the Administrators, to increase the accuracy, timeliness and cost-effectiveness in the Registration Process and the Administration of the Scheme.

THE COURT ORDERS THAT:

1. Pursuant to ss 23, 33V(1), 33ZF and 37P of the Federal Court of Australia Act 1976 (Cth) (Act) and order 20 of the Orders made on 16 September 2024, the Court approves the following variations to the Scheme.

(a) Clause 2(bb) of the Scheme be varied to add after the end of that clause:

Further, the reference to: (i) ‘signed’ in paragraphs A(iii) and B(iii) of column B of Item 1 of the table in clause 43 below and paragraph A(iii) of column B of Item 1 of the table in clause 44 below; and (ii) ‘signed from a Trustee Referee’ in column B of Item 3 of the table in clause 44 below, means:

(i) an oral statement made by a Trusted Referee to Shine Lawyers or the Administrator by telephone or otherwise; or

(ii) an electronic declaration made by a Trusted Referee; or

(iii) a Trusted Referee applying their signature to a statement which contains a declaration,

to the effect that they promise that the information provided by them in their statement (including any attachments to that statement) is true and that they understand that lying may be a criminal offence;

(b) Subclause (k) of clause 7 of the Scheme be replaced with the following:

(k) will provide an affidavit or affidavits verifying the process which has been followed for:

(i)  all Registration Applicants who have Signed their Registration Form by oral statement; and

(ii)  all Trusted Referees who have signed by oral statement a statement from a Trustee Referee referred to in the tables in clauses 43 and 44 below.

(c) The following new clause 12A be added after clause 12 of the Scheme:

12A. The Administrator will provide an affidavit or affidavits verifying the process which has been followed for:

(i)  all Registration Applicants who have Signed their Registration Form by oral statement made to the Administrator; and

(ii)  all Trusted Referees who have signed by oral statement made to the Administrator a statement from a Trustee Referee referred to in the tables in clauses 43 and 44 below.

(d) Clauses 13 and 14 of the Scheme be replaced with the following clauses:

13. Subject to clause 13A below, for each Potential Claimant and, subject to Part E below, each Potential Descendant Claimant to be considered by the Administrator for eligibility to participate in the Scheme:

(a)  a Registration Form must be received by Shine Lawyers by the Registration Date which contains at least the Potential Claimant’s or Potential Descendant Claimant’s name, and contact details, and

(b)  if the Registration Form is not Completed and Signed by the Registration Date, the Registration Form must be Completed and Signed within 28 days of the Registration Date. Shine Lawyers must use reasonable endeavours to assist each such Potential Claimant and/or Potential Descendant Claimant to Complete and Sign their Registration Form within this 28 day period.

13A. If any Registration Forms referred to in clause 13(a) above are not Completed and Signed within the time specified in clause 13(b) above:

(a)  Shine Lawyers must provide all such Registration Forms to the Administrator as soon as is reasonably practicable after that time;

(b)  The Administrator may, in their absolute discretion and within a further 21 days of that time, take any action they consider appropriate to facilitate such Registration Forms being Completed and Signed (but should avoid taking any actions which replicate any unsuccessful actions previously taken by Shine Lawyers to assist a Potential Claimant or Potential Descendant Claimant to Complete and Sign their Registration Form).

Any such Registration Forms which are:

(a)  Completed and Signed within the further 21 days are to be considered by the Administrator for eligibility to participate in the Scheme.

(b)  not Completed and Signed within the further 21 days are not to be considered by the Administrator for eligibility to participate in the Scheme, unless the Court otherwise orders.

14. Subject to:

(a)  any order of the Court; and

(b)  clauses 13 and 13A above and 26 and 27 below,

no further Registration Forms (Completed and Signed or otherwise) will be accepted after the Registration Date.

(e) Clauses 20 and 21 of the Scheme be replaced with the following:

20. A Deemed Registrant who is a:

(a) living Potential Claimant; or

(b) living Potential Descendant Claimant claiming on behalf of a Potential Claimant,

must Sign and provide to Shine Lawyers a Completed Registration Form within 28 days of the Registration Date to participate in this Scheme or any further time allowed by the Court.

21.  Where a Deemed Registrant who is a Potential Claimant dies before completing and Signing a Registration Form on their own behalf, the Registration Form may be Completed by, or on behalf of, a living Spouse of the Potential Claimant, or if there is no living Spouse, a living Child of the Potential Claimant and Signed by that person. Where that occurs, the living Spouse or living Child will become a Potential Descendant Claimant for the Potential Claimant and will be entered in the Register as such. For the person to participate in this Scheme, the Registration Form must be Completed and Signed and provided to Shine Lawyers within 28 days of the Registration Date or any further time allowed by the Court.

(f) Clause 23 of the Scheme be replaced with the following:

23.  Subject to order of the Court, the Administrator is not required to accept Registration Forms from Deemed Registrants that have not been Completed and Signed in accordance with clause 20 or 21 of this Scheme and provided to Shine Lawyers within 28 days of the Registration Date. However, if any Registration Forms of Deemed Registrants are not Completed and Signed within 28 days of the Registration Date, the Administrator may, in their absolute discretion and within a further 21 days of that time, take any action they consider appropriate to facilitate such Registration Forms being Completed and Signed (but should avoid taking any actions which replicate any unsuccessful actions previously taken by Shine Lawyers to assist the Deemed Registrant to Complete and Sign their Registration Form). Any such Registration Forms which are:

(a)  Completed and Signed within the further 21 days are to be considered by the Administrator for eligibility to participate in the Scheme.

(b)  not Completed and Signed within the further 21 days are not to be considered by the Administrator for eligibility to participate in the Scheme, unless the Court otherwise orders.

(g) The following new clause 24A be added after clause 24 of the Scheme:

24A. The Administrator will provide an affidavit or affidavits verifying the process which has been followed for:

(i)  all Deemed Registrants who have Signed their Registration Form by oral statement made to the Administrator; and

(ii)  all Trusted Referees who have signed by oral statement made to the Administrator a statement from a Trustee Referee referred to in the tables in clauses 43 and 44 below.

(h) Clause 25 of the Scheme be replaced with the following:

25. The Applicant will, through a solicitor or solicitors from Shine Lawyers, provide an affidavit or affidavits verifying the process which has been followed for:

(a)  all Deemed Registrants who have Signed a Registration Form by oral statement; and

(b) all Trusted Referees who have signed by oral statement a statement from a Trustee Referee referred to in the tables in clauses 43 and 44 below.

(i) Clause 26 of the Scheme be replaced with the following:

26. If a Completed and Signed Registration Form on behalf of a deceased Potential Claimant is:

(a)  received by Shine Lawyers by the Registration Date or with approval of the Court after the Registration Date; or

(b)  to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 13(b) or 13A above or by order of the Court; or

(c)  in circumstances where the Claimant is a Deemed Registrant:

(i)  received by Shine Lawyers within 28 days of the Registration Date or with approval of the Court after that time; or

(ii) to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 23 above or by order of the Court,

a living Child or Spouse of that deceased Potential Claimant who did not previously apply to be registered may lodge a Completed and Signed Registration Form with the Administrator in respect of that deceased Potential Claimant.

(j) Subclause (b) of clause 43 of the Scheme be replaced with the following:

(b) in respect of whom there exists a Registration Form that was Completed and Signed and:

(i)  received by Shine Lawyers by the Registration Date or any further time allowed by the Court; or

(ii) is to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 13(b) or 13A above or by order of the Court; or

(iii)  in circumstances where the Claimant is a Deemed Registrant:

(A)  received by Shine Lawyers within 28 days of the Registration Date or with approval of the Court after that time; or

(B) is to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 23 above or by order of the Court;

(k) Column B of Item 1 of the table in clause 43 of the Scheme be varied as follows:

i) the full stop (‘.’) at the end of paragraph A(iv) be replaced with ‘; or’;

ii)     the following be added after paragraph A(iv) (as varied above):

(v)   1 point of current identification that does not include the date of birth of the Potential Claimant but which has been issued by the Commonwealth Government or Northern Territory Government (for example, but not limited to, a Medicare card or other social security card) AND the Potential Claimant includes a statement of their date of birth in their Signed Registration Form.

For the avoidance of doubt, a statement from a Trusted Referee referred to in paragraph A(iii) above or paragraph B(iii) below may be given orally.

(l) Subclause (b) of clause 44 of the Scheme be replaced with the following:

(b) in respect of whom there exists a Registration Form that was Completed and Signed by the person and:

(i)  received by Shine Lawyers by the Registration Date or any further time allowed by the Court; or

(ii) is to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 13(b) or 13A above or by order of the Court; or

(iii)  in circumstances where the Claimant is a Deemed Registrant:

(A) received by Shine Lawyers within 28 days of the Registration Date or with approval of the Court after that time; or

(B) is to be considered by the Administrator for eligibility to participate in the Scheme in accordance with clause 23 above or by order of the Court;

(m) Column B of Item 1 of the table in clause 44 of the Scheme be varied as follows:

i) the full stop (‘.’) at the end of paragraph A(iv) be replaced with ‘; or’;

ii)     the following be added after paragraph A(iv) (as varied above):

(v)   1 point of current identification that does not include the date of birth of the Potential Descendant Claimant but which has been issued by the Commonwealth Government or Northern Territory Government (for example, but not limited to, a Medicare card or other social security card) AND the Potential Descendant Claimant includes a statement of their date of birth in their Signed Registration Form.

For the avoidance of doubt, a statement from a Trusted Referee referred to in paragraph A(iii) above or anywhere else in this table may be given orally.

(n) Column B of Item 3 of the table in clause 44 of the Scheme be varied as follows:

i) subparagraph (iii) of paragraph A be replaced with:

(iii) attaches any documentary records to assist in verification of the relationship (and the matters included in the statement), although supporting documentation is not required to meet this criterion.

ii) subparagraph (iii) of paragraph B be replaced with:

iii) attaches any documentary records to assist in verification of the relationship (and the matters included in the statement), although supporting documentation is not required to meet this criterion.

ORDERS EXTENDING THE REGISTRATION DATE

THE COURT NOTES THAT:

A. The Administrators estimate that final payments to Eligible Claimants and Eligible Descendant Claimants under the Settlement Distribution Scheme will begin by 30 January 2026 at the earliest, if the registration date is extended to 3 October 2025.

THE COURT ORDERS THAT:

1. Pursuant to ss 23, 33Y, 33ZF and 37P of the Federal Court of Australia Act 1976 (Cth) (Act), the Court approves a variation of the Registration Process approved by orders 2 and 6 made on 16 September 2024 (16 September Orders) such that the Registration Date for the purposes of clause 2.2.1 of the Deed of Settlement dated 30 August 2024 (Deed) be 3 October 2025, or such later date as the Court may by subsequent order specify (Extended Registration Date).

2. Pursuant to ss 23, 33X, 33Y and 37P of the Act, the Court orders that Shine Lawyers are to take all reasonable steps to communicate to prospective eligible claimants and to the communities listed in Annexure E of the Orders of 16 September 2024 the fact of the Extended Registration Date.

3. For the avoidance of doubt, the applicant is not required to repeat the steps required by Orders 7 to 17 of the 16 September Orders.

4. Any reference to the “Registration Date” in the Orders made on 28 May 2025 be read as a reference to the Extended Registration Date.

5. Pursuant to ss 23, 33ZF and/or 37P of the Act, the Administration Finalisation Date for the purposes of clauses 1.1.1.a and 2.20.1 of the Deed, is the date which is 42 weeks after the Extended Registration Date, or such later date as the Court may by subsequent order specify.

6. Pursuant to ss 23, 33ZF and/or 37P of the Act and subject to further order, the Administrator is, at the latest, to commence final payments to eligible claimants as soon as practicable after 30 January 2026, and in any event within 2 weeks of 30 January 2026.

7. Any costs sought of the interlocutory applications dated 11 July 2025 and 6 August 2025 be dealt with in accordance with:

(a) orders 3 to 13 and 21 of the Orders made on 28 May 2025 (insofar as costs are sought by the Applicant or Shine Lawyers) or

(b) clause 2.15 of the Deed (insofar as costs are sought by the Administrators).

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1 These reasons should be read in conjunction with the Court’s principal settlement approval reasons in McDonald v Commonwealth of Australia [2025] FCA 380. I adopt the same terminology in these reasons.

2 Before the Court are two interlocutory applications, both related to the fact that 31 August 2025 is the date by which registration forms must be received by the applicant’s lawyers from persons who want to be considered eligible claimants in the distribution of the settlement sum in these proceedings. I shall refer to this as the registration end date, although in the previous reasons it was described as the Registration Date, which is what it is called in the Settlement Deed (as defined at paragraph [9] of the principal reasons). The interlocutory applications were filed on 11 July and 6 August 2025 respectively.

3 The first interlocutory application is an application to extend the registration end date by three months, from 31 August 2025 to 30 November 2025. It also seeks various consequential amendments to previous orders of the Court providing for means by which persons may be notified of the registration end date.

4 In support of the first interlocutory application, Sarah Jayne Thomson, a legal practitioner employed by Shine Lawyers Ltd, the applicant’s solicitor, has filed an affidavit. This affidavit:

(a) Notes that Shine Lawyers had not obtained the instructions of the applicant in filing the first interlocutory application;

(b) Cross-refers to a previous affidavit relating to the progress of various steps in relation to the registration process; and

(c) Notes various concerns Ms Thomson holds about the progress of the registration process, as well as benefits she believes will arise from an extension of the registration end date.

5 The second interlocutory application is an application to extend the date by which the administration of the settlement scheme is to be finalised by the Administrator (as defined at paragraph [10] of the principal reasons).

6 Michael McCarthy, has filed an affidavit in support of the second interlocutory application. Mr McCarthy is a partner at Hutton McCarthy. He and Mr Tom Hutton are the Legal Advisors to the Administrator for the purposes of cl 31 of the Scheme which is Schedule 1 to the Deed. He deposes that he is authorised to make this affidavit on the Administrator’s behalf. I shall refer to the date Mr McCarthy focusses on as the administration end date.

7 Mr McCarthy’s affidavit:

(a) Notes the steps the Administrator is required to take in finalisation of the Settlement Distribution Scheme (as defined at paragraph [9] of the principal reasons);

(b) Estimates the time required to complete these steps following the registration end date;

(c) Notes various difficulties arising out of the receipt of duplicate and incomplete registration forms, as well as the shut down period at the end of the calendar year; and

(d) Foreshadows an application by the Administrator for an increase in approved costs.

8 Late on Friday night, 8 August 2025, a further affidavit from Ms Thomson was filed. That affidavit covered four main topics:

(a) Ms McDonald’s instructions;

(b) A further update on the progress of registration;

(c) Ms Thomson’s estimates about costs, and the time payments would take if the Registration Date was extended;

(d) Ms Thomson’s somewhat altered opinion about what is in the best interests of potential eligible claimants, in terms of whether the registration and administration end dates should be extended.

9 The interlocutory applications and the affidavits, now read into the court record, are available on the Court’s online file in this proceeding.

10 Following the hearing of the two interlocutory applications on 11 August 2025, and pursuant to orders of the Court made on 12 August 2025, the parties and Administrator provided a report to the Court addressing, in the language of the 12 August order:

what has been agreed, and what might be capable of agreement, to increase accuracy, timeliness and cost effectiveness in the Registration Process conducted by Shine Lawyers and the administration of the Settlement Distribution Scheme (Scheme) conducted by the Administrators (including through any variation of the Scheme).

11 This report was provided to the Court on 22 August 2025. The report also provided the Court with an update in respect of the registration and administration processes. I refer to this report as the 22 August report.

12 A draft minute of consent order was filed by the parties on 26 August 2025. The proposed order reflects a number of agreed variations to the Scheme referred to in the 22 August report, being variations designed to improve the Scheme’s efficiency and fairness, and facilitate the registration of potential eligible claimants and eligible descendent claimants in a timely way.

The progress of the settlement registration and distribution to date

13 To date, the Administrator has provided two reports to the Court on the progress of the administration of the scheme, on 1 May 2025 and 1 July 2025. A further update was provided in the 22 August report.

14 As of 22 August 2025, the Administrator has received 9,014 registration forms from Shine Lawyers, determined 2,233 claims of descendants (see paragraph [139] of the principal reasons) to be eligible, determined 740 claims of living claimants (see paragraphs [137]-[138] of the principal reasons) to be eligible, and had made 644 interim payments to those eligible living claimants (in relation to interim payments, see principal reasons at [253]-[261]).

15 The Administrator’s reports of 1 May 2025 and 1 July 2025 are available on the Court’s online file.

The position of the lead applicant Ms McDonald

16 Ms Thomson’s 8 August affidavit contains evidence about the difficulty she had in securing instructions from Ms McDonald concerning this interlocutory application.

17 In her 8 August affidavit Ms Thompson deposes to the content of her call with Ms McDonald, once she did reach her. She deposed:

7.     I confirm I have now had the opportunity to speak with the Applicant, Ms Minnie McDonald, in relation to the proposed extension to the Registration Date, and related matters including the Administrators' proposal for an extension of time to make payment.

8.     Ms McDonald informed me that:

(a)     she is getting sick, and old;

(b)     she wants to receive the rest of her money as soon as possible. (It is my understanding that Ms McDonald has already been paid $10,000 together with her reimbursement payment of $30,000, and that the money she is yet to get would be the balance of the assessed entitlement for her own claim, and her share of her claims in respect of her father and mother if they are eligible);

(c)     she agreed that she needs to think about other people in the community, and that some people have not been reached yet and are still finding out they need to register, and she still thinks people need a good opportunity to register, but she also thinks lots of people want to get paid soon and they want to know when they will get their money. She thinks Easter next year is too long away for people to get paid as she has waited a long time; and (d) she thinks it is "hard" to work out if the deadline should be extended if that means that it takes a lot longer for people to get paid.

9.     Ms McDonald instructed me that she thinks the Court should decide how much longer people should have to register, and how long it will be until people get their money.

10.     Having regard to my instructions from Ms McDonald and the fact that different categories of Group Members have different interests in the outcome of the Application for extension of Registration Date, I consider that it is a matter for the Court whether to extend the Registration Date, and if so, by how much, and to give directions to the Administrator in relation to the expedition of payments to Group Members. I therefore seek to provide the Court with information to enable the Court to make this decision.

18 I have set this out because the position of Ms McDonald as the lead applicant is a matter to which I have given some weight in reaching my conclusions about whether to extend the registration end date and if so by how much.

19 Ms McDonald’s wish that the Court should decide (expressed at [9] of the 8 August affidavit, above) is, at a human level, very understandable, and it shows trust in the Court’s processes.

20 At the hearing on 11 August 2025, counsel for Ms McDonald confirmed that her position as lead applicant was that she supports the making of this application but wants to leave the decision about any extension to the Court.

21 The tenor of what is being reported to the Court as the lead applicant’s own attitude is that the most important consideration for her is that eligible group members receive their payments as soon as practicable. In the circumstances, the Court gives weight to the views expressed by Ms McDonald through her solicitors, and also considers her views are likely to be representative of at least a significant number of eligible claimants who have already registered, especially living eligible claimants, being in the same category as Ms McDonald.

The proposed variations to the scheme

22 It is convenient to note at the outset the variations to the Scheme proposed by the parties in the minute of consent filed 26 August 2025. In outline, the proposed orders relevantly provide for:

(a) additional means by which a registration form may be “signed” for the purposes of the Deed;

(b) a mechanism by which people whose registration forms which are not “completed and signed” for the purposes of the Deed by the registration end date may nevertheless become eligible claimants and participate in the settlement;

(c) certain provisions in relation to Deemed Registrants under the Scheme;

(d) a variation to the sorts of documents which may accompany registration forms; and

(e) various consequential amendments relating to the provision by the Administrator of affidavit evidence of processes followed.

23 To the extent the proposed variations bear on the Court’s task in determining the applications for extensions to the registration and administration end date, I refer to them further below.

24 I am satisfied that the proposed variations represent a pragmatic solution by the parties in the interests of group members.

The Registration end date extension application

25 The main points made by Ms Thomson to support an extension of the registration end date are:

(a) A number of registration forms provided before the settlement was approved have not yet been converted;

(b) Information in relation to the settlement is still spreading among potential claimants by word of mouth;

(c) Community stakeholders require more time to conduct outreach;

(d) Shine Lawyers requires more time to review and if necessary correct any deficiencies in registration forms; and

(e) Taking these points into account, without an extension to the registration end date, it is likely that “far fewer group members in this proceeding will receive compensation than occurred” in the Street v State of Western Australia proceeding (WAD 237 of 2020).

26 Ms Thomson initially deposed that she could not give any estimates of the legal costs (and disbursements) involved in such an extension. However in her 8 August affidavit she was able to provide some details about costs incurred to date by Shine Lawyers, and estimates of costs likely to be incurred if any extension were granted.

27 Ms Thomson deposes that, between 18 December 2024 and 31 July 2025, Shine Lawyers incurred about $3.3m in professional fees, and about $350,000 in disbursements conducting outreach and progressing the process of registering claimants. Between 1 August and 31 August 2025, Shine Lawyers expects to incur about another $2.1m. Ms Thomson states that Shine Lawyers anticipates paying significant costs to stakeholders engaged to conduct outreach in this month. If the registration end date is extended, Ms Thomson deposes that Shine Lawyers expects to incur fees and disbursements of $382,000 in September 2025, $305,800 in October 2025, and $283,800 in November 2025. While these costs are considerable, I infer that due to the use of community organisations in the outreach process, the legal costs are substantially less than originally estimated in the material before the Court on the settlement approval application.

28 While Ms Thomson also gave evidence in relation to the impact an extension of the registration end date would have on the date at which claimants would receive payment, this evidence has now been overtaken by further estimates provided by the Administrator in the 22 August report.

29 The estimates of the Administrator in relation to possible registration end dates and the corresponding dates on which final payments would commence are set out as follows:

30 The relationship between extensions to the registration end date and the corresponding dates on which final payments would commence is not linear. For example, a registration end date of 3 October is estimated to lead to final payments being made on 30 January 2026, while a registration end date two weeks later, on 17 October 2025, would lead to payments commencing about seven weeks later, on 13 March 2026. The Administrator provides the following explanation for this:

We note that the Christmas break may result in unfairness to some claimants if Distribution Statements and Rejection Notices are issued at a time when they may not be received, reducing the capacity of claimants to seek a review of the decision under section U of the Scheme.

The Administrator has consulted with yamigigu [a First Nations consulting business engaged by the Administrator], who have indicated that approximately one month is a reasonable amount of additional time to allow in order to accommodate for departures from community and periods during which contact will be difficult.

31 The Court notes that these time estimates are qualified by the Administrator as follows:

It is the Administrator’s view that these timetables are ambitious and that there are factors that have the potential to delay the making of final payments. By way of example, if a large number of reviews are lodged in relation to Distribution Statements and Rejection Notices, this has the potential to delay the making of final payments.

32 This evidence, while only an estimate, has been of assistance.

The nature of the registration end date

33 At present, the registration end date functions as something of a hard cut off point. For example, a claimant who has provided a registration form by 31 August (the current end date) , but their form has not been identified as one that is “completed and signed” consistently with the Deed’s requirements will not be eligible to receive payment under the settlement.

34 At the 11 August hearing, it became apparent that the Deed’s definitions of when a form was “completed and signed” was one of the major factors holding up decisions on whether a person was being accepted as an eligible claimant or an eligible descendant claimant, or not.

35 The proposed variations to the Scheme address this issue through new cll 13, 13A and 14. These clauses provide for an additional 28 days during which Shine Lawyers must use reasonable endeavours to assist potential claimants who have provided a registration form which contains at least their name and contact details, but is not otherwise completed and signed, to facilitate the form’s completion. If this process is unsuccessful, the Administrator then has a further 21 days in which they may take steps to facilitate the form’s completion.

36 As the Court accepts the parties’ joint position that orders allowing for these variations should be made, these reasons proceed on the basis of the Scheme as amended.

My reasoning

37 Ms Thomson’s evidence suggests that efforts have certainly been made by Shine Lawyers to act consistently with the Court’s views as expressed in the principal reasons, and significant efforts have been made to use locally based and experienced organisations which regularly work with First Nations communities. Of course, these organisations are generally struggling for resources themselves and so it is understandable that when faced with relatively last-minute requests for assistance, not all of them have been able to help.

38 It is apparent from the principal reasons that the Court has been concerned at the level of legal costs incurred in this proceeding. The prospect of increased costs, and the potential for this to affect the amount of money available for distribution to eligible claimants, is in my view a factor tending against any extension of the registration date. The Court is, however, pleased to see that, on Ms Thomson’s evidence, there have been significant cost savings against original estimates. This vindicates the Court’s decision to postpone the deduction of future legal costs from the settlement amount (see principal reasons at [508]).

39 Initially, while the parties raised a number of issues arising in the course of the settlement process which have led to the question of whether to extend the registration end date, by the 11 August hearing the parties accepted that a measure they could take to alleviate some of the issues was to vary the Deed. Since the 11 August hearing, the parties have met and their agreement is reflected in the proposed variation orders. These variations are designed not only to speed up the process for Shine and the Administrator in adding registration forms that meet the Deed’s requirements, but should also extend the ‘net’ of people likely to qualify as eligible claimants or eligible descendant claimants. These welcome developments are factors which mean, in my view, the Court can look towards a shorter extension period. For example, the process by which registration forms which are not “completed and signed” by the registration end date can nevertheless be considered as part of the settlement addresses one aspect of the unfairness that might otherwise weigh in favour of a lengthier extension to the registration end date.

40 Another factor I have considered is that uncertainty persists in relation to how many individuals may be eligible to claim under the Scheme, but have not yet registered. The Court approved the settlement on the basis that there would be approximately 8,000-8,750 individuals who had worked in the Northern Territory during the claim period in relation for whom claims were likely be lodged (original workers), either by the individual themselves, a surviving spouse, or a descendant (see principal reasons at [333]-[336]). To be clear (because it was not especially clear in the parties’ submissions at the settlement approval stage) these numbers of 8,000-8,750 were the numbers of workers estimated to have been paid little or no wages during the claim period.

41 These numbers were not an estimate of the total number of likely claimants under the Scheme – that number is likely to be much greater because of the ability for multiple descendants (and spouses of original workers) to claim in respect of one original worker.

42 Since the hearing on 11 August 2025, Shine Lawyers has performed an analysis of the number of original workers, both living and deceased, likely to have either claimed themselves or have been subject to a claim lodged by a descendant so far. They estimate that, as of 22 August 2025, there were 5,761 such original workers. So, on those calculations there are around 3000 original workers for whom no claim has been made, whether by themselves or their descendants.

43 While I accept Shine Lawyers has done its best in providing these estimates, what cannot be known is how likely it ever was that the proposed distribution was in reality going to be able to reach, and be taken up by, 8,000-8,750 original workers or their immediate families. There are so many variables about the contemporary lives of First Nations Peoples who are original workers or the families of original workers, that there will always be a real element of speculation about the chances that all those people who should come to know about the Scheme will come to know about the Scheme and be able to access it by lodging registration forms. Many may not even be in the Northern Territory anymore; these matters are simply unknown.

44 I consider that extending the registration end date for a lengthy period depends on a level of speculation and uncertainty about how likely it is a lengthy period will indeed capture substantially more original workers or their families. The Court must balance against the alleged numbers who have not registered and are the ones who are said to benefit from any extensions, the claimants who have made efforts to register under the Scheme, and their legitimate interests in finality, and receiving their money sooner rather than later.

45 What is known, however, is that a large number of registration forms are still being received at this stage, and especially over the last few months. For example, 331 new registration forms were received between 5 August and 8 August 2025 alone, on Ms Thomson’s evidence. Outreach is still being conducted in Northern Territory communities, and on this basis Ms Thomson estimated that Shine Lawyers would receive about 1,000 new registration forms by 31 August 2025.

46 In the circumstances, and balancing the factors I have outlined above, the Court’s view is that an extension of the administration end date to 3 October 2025 date is appropriate, but no further. This is because there is insufficient evidence that the benefits of a longer extension will outweigh the negative impacts, in the form of delays to payment of eligible group members and legal costs which are to be deducted from the settlement sum. Additionally, I am satisfied the steps taken by the parties and the Administrator following the 11 August 2025 hearing, and the amendments to the Scheme proposed by consent, will work to mitigate some of the potential negative impacts of not providing a further extension to the registration end date.

47 Another advantage of this proposed end date is that it avoids the potential delay surrounding the Christmas break referred to at paragraph [30] above, and thereby further delay for eligible claimants.

Spreading the word from this time onwards about the need to register

48 Much of Ms Thomson’s evidence implies that there has not been the expected take up in registrations, although her evidence also suggests an increased pace of registrations over the last month or so.

49 My impression from Ms Thomson’s evidence overall, together with the evidence of Ms Antzoulatos filed on the settlement approval applications, is that lessons are being learned by Shine Lawyers about which communications methods work better with people who live in remote communities, with the social, communications and material disadvantages and challenges experienced because of remote living, as well as cultural and social considerations which may make people in communities less likely to remain in one place for long periods of time, and less likely to come to know about the Scheme and in particular that there is a cut-off date for registrations.

50 It would not be cost effective or appropriate to impose further burdens on Shine, or the organisations it is now working with, by making specific orders attempting to spread the message more widely about the need for people to register if they wish to claim either directly or as descendants. Instead the Court will make a general order that all reasonable steps be taken by Shine Lawyers to communicate to prospective eligible claimants and to the communities listed in the 16 September 2024 settlement approval orders the fact of an extension to the registration end date. There is sufficient evidence before the Court that methods such as social media, websites and placing notices at locations such as such as health centres, stores and art centres, as well as in person outreach, are all reasonable steps to communicate with this particular cohort of group members. I do not consider the time and resources likely to be needed to produce and distribute a new or amended settlement brochure (one suggestion from the parties) is worthwhile at this stage. Notices can be placed at locations where community members are likely to see them, and otherwise the kinds of methods I have identified above should be sufficient. The Court is more confident on the recent evidence that there is a good understanding of communication methods that are likely to actually reach potential eligible claimants.

The Administration end date application

51 The main points made by Mr McCarthy to support an extension of the administration end date are:

(a) That the Administrator needs to take various steps following the registration end date, and so any extension to that date will delay the time at which those steps can occur;

(b) These steps include reviewing outstanding registration forms to determine whether claimants are eligible to participate in the settlement, seeking further information if the Administrator is not satisfied, determining quantum of payments, issuing distribution and rejection statements to claimants, and completing various administrative tasks; and

(c) That the time taken to receive registration forms from Shine Lawyers, the presence of duplicate and incomplete registration forms, and the holiday shut down period at the end of the year are likely to delay the Administrator’s work by approximately two weeks.

52 As Mr McCarthy noted at the 11 August hearing, irrespective of what occurs with the registration end date, some amendment to the administration end date is likely to be necessary. This is because the Deed set a fixed date for the administration end date at 12 months after the date of settlement approval. The Court made orders on 14 November 2024 approving the settlement, leading to an administration end date of 14 November 2025. While the registration end date, defined in the Deed as the date 6 months after the date of settlement approval, was extended to 31 August 2025 by consent orders of 16 September 2024 (see paragraph [35] of the principal reasons), the parties did not at that time seek commensurate orders extending the administration end date.

53 Mr McCarthy also deposes that the Administrator believes that an increase in approved costs is likely necessary to enable them to complete their work, because:

(a) Registration forms submitted to the Administrator require more work than had previously been anticipated, for the reasons outlined above; and

(b) Any extension to the Registration date will increase costs, including with respect to fixed costs associated with the operation of a call centre, electronic portal, database and other infrastructure.

My reasoning

54 At the time of the 11 August 2025 hearing, Mr McCarthy’s evidence was that most eligible claimants would receive their payments six months after the registration end date. Since that hearing, as set out above at paragraph [29], the Administrator has provided revised estimates, ranging between 17 and 21 weeks between the registration end date and the commencement of payments to eligible claimants. I accept that some proactive and productive discussions and revised planning has been undertaken by the Administrator, and with the parties, to bring down these estimates, as well as steps such as the Administrator assigning considerably more staff to deal with the distribution process.

55 Prior to the hearing on 11 August 2025, the Court requested that Mr McCarthy come prepared to explain, by way of non-identifying examples, what kinds of problems the Administrator is identifying in the registration forms received to date. Mr McCarthy provided a bundle of six examples (now marked as exhibit D-1), showing issues of various kinds, such as inconsistent birth dates, lack of documentation and absent bank details. Due to the fact that these forms contain personal information they will not be placed on the online file, and will not be available for inspection by third parties.

56 In relation to one of the examples, part of the issue was said to have arisen because they were assigned an incorrect birth date by the Government. At the hearing, I said that:

It would be ironic in the extreme if that kind of previous conduct, at least on this person’s account, was then to render them ineligible. That would be a travesty.

57 As I have explained, since the 11 August hearing the parties have met with the Administrator and agreed on a position in respect of efficiencies to be gained in the registration process, and changes made to the administration process more broadly to address these issues. The Court is more satisfied than it was on 11 August that these kinds of mis-matches in information provided will not work against claimants to either deny them registration or cause delays in registration forms being accepted.

58 As the principal reasons made plain, the overall intention of the Deed was to keep the registration process less rather than more complex, to require less rather than more information that might be difficult for potential claimants to provide, and to try as best as possible to require information to be provided in ways that group members would be able to comply with, rather than allowing registrations to be rejected for technical reasons. The Court’s approval of the settlement and the settlement process relied on these being features of the settlement: see principle reasons at [191]-[194]. I am satisfied that the parties’ agreed position in relation to amendments to the Scheme furthers these objectives and is in the interests of group members.

59 In his original affidavit, Mr McCarthy deposed (at [28]-[30]) to the need for a further 19 weeks, following payments being made to eligible claimants, to deal with failed bank transfers, and organise what needs to be done with payments not collected and any residue of the settlement sum, which must be dealt with in the way the Deed contemplates.

60 In my view, the Court’s orders should separate out these two periods – that between the registration end date and payments to eligible claimants on the one hand, and then the further 19 weeks on the other. Dealing with the periods separately gives as much certainty as possible to potential eligible claimants about when they will get their payments.

61 Accordingly, the Court’s orders include a notation to indicate to claimants, on the basis of the estimates provided by the Administrator in the 22 August report, when payments are expected to begin. That date is 30 January 2026. There is then an order providing that the Administrator must commence payments at the latest two weeks from that date, in order to accommodate the Administrator’s qualifications set out at paragraph [31] above. This order is expressed to be subject to further order, so that if the Administrator can on proper material justify a modification to when they should begin payments, the Court can be approached about this matter.

62 The administration end date should then be fixed at a date 42 weeks after the registration end date, being 24 July 2026. That is because this date does not affect the payments to eligible claimants, and so the Court is prepared to agree to the time requested by the Administrator.

Costs

63 As to Mr McCarthy’s evidence about costs, I reiterate the approach I took in the principal reasons to the question of costs: whether they be legal costs or costs of participants such as the Administrator, the Court expects high levels of discipline from those who are being paid to organise and administer the distribution. The same expectation applies to Shine’s legal costs. These are funds which might otherwise go to the workers and their families on whose behalf this whole proceeding is brought. Costs approved by a Court in a legal proceeding – whether legal costs or of participants such as the Administrator – are costs for the provision of services to litigants, and no more than that.

64 Costs claims will need to be fully and properly justified before the Court will consider any additional payments. The Administrator provided an estimate and is now warning that its estimate might have been incorrect. The Court was entitled to consider Deloitte’s estimate to have been carefully prepared and properly informed. The Court will need to be fully persuaded about why that estimate may now be contended to be insufficient.

Orders

65 Two sets of orders are made today. One set reflects the agreement of the parties to the Deed to certain variations designed to facilitate greater take ups in accepted registration, and to facilitate an increased rate of acceptance by the Administrator. By its orders, the Court approves the parties’ further agreement. The fact the parties have agreed to the variation has been material in persuading the Court it is in the interests of group members to extend the registration date for at least a short period.

66 The second set reflects the extension of the registration end date, and consequential orders.

Associate:

Dated:    29 August 2025