Federal Court of Australia

McDonald v Commonwealth of Australia (No 4) [2025] FCA 1450

ORDERS

THE COURT ORDERS THAT:

1.    The affidavit of Michael McCarthy dated 11 November 2025 be treated as read on this application.

2.    For the purposes of clause 2.15.1 of the Deed, the revised Administrators’ estimated costs of $3.196 million (inclusive of GST) are approved.

3.    The interlocutory application by the Administrator dated 10 October 2025 seeking orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) be dismissed.

4.    There otherwise be no orders as to the costs of the two interlocutory applications.

5.    Any objection by the Administrator to the upload of the unredacted Affidavit of Julia Kaye dated 25 September 2025 to this matter’s online file is to be made by way of a brief written submission filed by 3 December 2025 and served on the parties and the funder.

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, and the registration extension reasons in McDonald v Commonwealth of Australia (No 3) [2025] FCA 1048. I adopt the same terminology in these reasons.

2    Before the Court is an interlocutory application by the Administrator in these proceedings, dated 24 September 2025, to approve an increase in its estimated costs from $1.8 million, exclusive of GST, to $3.196 million inclusive of GST. I shall describe this as the costs increase application.

3    Also before the Court is a further interlocutory application by the Administrator dated 10 October 2025 seeking suppression orders pursuant to s 37AF of Federal Court of Australia Act 1976 (Cth). I shall describe this as the Administrator’s suppression application.

Background

4    On 14 November 2024, the Court made orders appointing David Orr, Sal Algeri and Julia Kaye of Deloitte as Administrator of the Settlement Distribution Scheme set out at Schedule 1 of the Deed of Settlement dated 30 August 2024 and executed between the applicant and respondent in this proceeding: see principal reasons at [10]. The Court also made orders approving the Administrator’s estimated costs of $1.8 million (exclusive of GST): principal reasons at [101]. Although individuals may be collectively appointed as an Administrator, in substance the three tenders before the Court came from three leading financial services firms. Accordingly, I either use the term Administrator, or the names of the firms concerned.

5    Deloitte was appointed following a competitive tender process, in which there were three tenders for the Administrator function. Deloitte was appointed by the Court after submissions by the parties: principal reasons at [101]. As I explain below, the Court was encouraged by both parties (the applicant and the Commonwealth) to appoint Deloitte, in preference to the other two tenderers, McGrathNicol and Grant Thornton. There was no suggestion from either of the parties that the tendered amounts were likely to be insufficient. The tenders of all three firms were in evidence before the Court, on an open basis. The tenders of Deloitte ($1.52 to $1.79 million GST inclusive) and Grant Thornton ($1.9 to $2.4 million GST inclusive) were more comparable; whereas the tender of McGrathNicol was significantly more, with an estimated range between from $4.9 million to $6.9 million (GST exclusive, being approximately $5.4 million to $7.6 million GST inclusive), depending on the number of registrations.

6    The Settlement Deed allowed for up to $6 million in costs for the administration of the settlement scheme. Under clauses 2.15.11 and 2.15.12 of the Deed, the Commonwealth is liable to pay this sum only in respect of the Administrator’s costs. The Deed does not provide a mechanism by which any difference between the Administrator’s actual costs and $6 million could make its way to group members. The applicant and the Commonwealth suggest however that any difference between the Administrator’s actual costs and $6 million could be applied to pay additional legal costs claimed by Shine: see principal reasons at [102]. The Court was informed there is an agreement between the Commonwealth and the applicant to this effect. The principal reasons make clear that any further amounts above $1.8 million sought to be deducted by the Administrator for its costs are subject to any further Court order: see principal reasons at [576].

7    There are two mechanisms under the Deed by which the Administrator’s approved costs may be met. In the first instance, pursuant to cl 2.15.11(a) of the Deed, those costs are to be met from the interest earned on funds paid by the respondent into a settlement fund account pending their payment to eligible group members.

8    Second, clause 2.15.11(b) of the Deed provides that if such interest is insufficient to meet these costs, these costs may be met by the Commonwealth out of a fund of $6 million that has been set aside for this purpose: see principal reasons at [101]-[104] and [576].

9    There has never been any explanation given to the Court of how the parties reached the sum of $6 million as an agreed maximum sum for the Administrator’s costs. Nevertheless, in considering the costs increase application, it is appropriate for the Court to recognise that the parties did agree this was an appropriate sum for the Commonwealth to promise to expend, in terms of taxpayer funds, on the costs of the administration of the settlement scheme.

10    Despite some misgivings, for the reasons set out below, the Court approves the increase in costs sought by the Administrator, but dismisses the suppression application.

Increase in costs application

11    Mr McCarthy, of the firm Hutton McCarthy, solicitor for the Administrator submitted that the Court can:

be satisfied that the administration is progressing well, living eligible claimants are receiving interim payments promptly, and eligibility determinations are being addressed promptly also. The administrator and the parties are working together to ensure the scheme is being run efficiently.

While additional work has been required of the administrator than was anticipated originally, this additional work is of real benefit to the class. In particular, it’s directed at ensuring access to the settlement scheme and ensuring claimants are well-informed. And finally, that no claimant will be worse off due to the additional costs, because they will be covered by a combination of interest and part of the Commonwealth’s agreed administration costs component.

12    Mr McCarthy outlined, by reference to the evidence of Ms Kaye, a member of the Administrator, that there were two primary reasons why an increase was sought.

13    First, the information and materials provided by group members seeking to become eligible claimants; and what Ms Kaye described as the higher than expected number of registration forms that failed to meet to meet the requisite minimum requirements for registration (e.g the inability to provide exact dates and required supporting documents). Ms Kaye deposed that at the tender stage she estimated that around 20% of applications by group members would be incomplete and would require follow up with claimants, but that this turned out to be closer to 50%.

14    Second, Deloitte’s experience with what Mr McCarthy described as a “very highly engaged cohort”. Ms Kaye deposed that her original estimate for the Deloitte tender was that approximately 50% of the cohort would contact Deloitte’s “Claims Contact Centre”. She deposed that:

The Tender Response assumed four levels of contact during the 52-week duration of the Administration; high with 6 operators, medium with 5 operators, low and minimal (each with two operators). It was assumed that there would be two high-weeks, two medium weeks, 33 low weeks and 13 minimal weeks.

15    Ms Kaye deposed that a “far greater” number of calls had been made, with calls also taking longer than she had anticipated when preparing the tender. The estimate in the tender was that the cost of the call centre service would be $151,854 whereas Ms Kaye’s current estimate is $923,000 because the call centre has been required to operate “at a high level each week”. As Mr Edwards for the applicant pointed out, Ms Kaye’s evidence demonstrates the call centre has been the overwhelming aspect of the increased costs, given that the entire amount of increase sought is just over $1.1 million (without GST).

16    To be clear, when Ms Kaye in her evidence speaks of “cost” and when Mr McCarthy also did so, I have inferred that what is meant is not the cost to Deloitte of providing the service, but the price Deloitte charges for delivery of the service, including its profit margin.

17    Mr McCarthy accepted that after the case management hearing on 11 August 2025 and some initial reporting to the Court about the level of incomplete forms, the Commonwealth, the applicant and the Administrator met to work out how they might change the requirements of the Scheme, because they were “a little too tight”. Examples had been tendered at the previous case management hearing and there had been exchanges during the hearing between the Court and Mr McCarthy.

18    I remain of the view that much of this should really have been obvious to anyone who had worked with cohorts of group members such as the cohort in this case. It should have been obvious because of the kinds of information people were being asked to provide, the passage of time since many of the events people were having to identify, the experiences of this cohort of people about not having identity documents, access to which others in the Australian community might take for granted. Much of the engagement now materialising should have been obvious because the information was often having to be provided by families, rather than the individuals who had been the workers.

19    When pressed on how the 20% figure in the tender had been struck, Mr McCarthy submitted:

But, essentially, my client has administered a number of schemes, not exactly like this scheme but of this nature, with various people, particularly with disadvantaged people. And she spoke to Yamagigu, and she assessed all of those matters, and she came up with 20 per cent as being the reasonable figure.

20    I do not find this submission persuasive, and I explain why at [78] to [88] below.

Chronology

21    In Mr McCarthy’s earlier affidavit dated 6 August 2025, filed in support of the extension of the registration date, an application from the Administrator for an increase to its estimate costs was foreshadowed (at [31]-[38]).

22    That costs increase application was accepted for filing on 29 September 2025, and listed for hearing on 15 October 2025. That application was accompanied by an affidavit in support sworn by Ms Kaye (as noted above, appointed together with Mr Algeri and Mr Orr as Administrator) (first Kaye affidavit). Initially the sum sought was exclusive of GST. By an amended application filed shortly before the hearing, the Administrator sought approval for essentially the same sum but expressed as a sum of $3.196 million on a GST inclusive basis. The parties agreed any approved increase should be GST inclusive, and the Court accepts this is appropriate.

23    On 1 October 2025, my chambers wrote to the parties and inquired whether they sought leave to file any further material in relation to the present application. On Wednesday 8 October 2025, the parties provided a minute of consent seeking leave for the Administrator, applicant and respondent to put on further evidence. The Court made that order on the same day.

24    Pursuant to those orders, the Ms Kaye filed a second affidavit in support on 8 October 2025 (second Kaye affidavit).

25    The effect of those orders was that the applicant was to file any evidence in support by 10 October 2025, and such evidence was ultimately filed on 13 October 2025, in the form of an Affidavit of Ms Sarah Jayne Thomson. The Commonwealth elected not to put on any evidence in relation to the costs increase application.

26    On 10 October 2025, my chambers wrote to the parties and indicated that Ms Kaye should be available to give evidence orally at the 15 October 2025 hearing by Teams. Ms Kaye was unable to do so, for reasons which were entirely reasonable. Mr McCarthy instead agreed to be available to answer the Court’s questions on instructions, to the extent he was able to do so. The Court is grateful to Mr McCarthy for his cooperation in seeking to answer all the matters the Court put to him during the oral hearing.

27    On 10 October 2025, the Administrator filed the Administrator’s suppression application, supported by an affidavit of Ms Kate Grimley, a partner at Deloitte SRT, which I infer to be a related entity to Deloitte. This affidavit was ultimately read in support of both the Administrator’s suppression application and the costs increase application.

28    That day the Administrator also filed two sets of submissions, one in support of the Amended Costs Application and one in support of the Suppression Application. The consent orders proposed by the parties and made by the Court on 8 October 2025 did not provide for the filing of written submissions, but the Court nevertheless has considered them, as well as the oral submissions made on behalf of the Administrator, the Commonwealth, the applicant and LLS at the hearing. Ms Colantonio for LLS, the litigation funder, made limited submissions by way of a proactive suggestion about how the $6 million sum agreed to by the Commonwealth could be used to generate further interest, but aside from that, LLS made no substantive submissions on either interlocutory application.

29    Where appropriate, I refer to the parties’ submissions in my reasons below.

Applicable principles and approach

30    The Administrator’s written submissions conveniently collected appropriate principles applicable to the costs increase application:

4.     The monitoring and approval of administration costs in class action settlements falls within the Court’s protective role to ensure that the settlement and its administration are fair and reasonable to all class members. That role continues beyond settlement approval and into the administration “to ensure that the settlement distribution process is undertaken in a timely, efficient and cost-effective fashion”. [citing Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527, [103] (Murphy J); Bolitho v Banksia Securities Ltd (No 18) [2021] VSC 555, [1573] (Dixon J), quoted with approval in McDonald v Commonwealth of Australia [2025] FCA 380 (Settlement Judgment), [120] (Mortimer CJ); Matthews v AusNet Electricity Services Pty Ltd (Ruling No 40) [2015] VSC 131, [14] (J Forrest J).]

5.     When faced with an application to increase costs or make further deductions from a settlement fund, the Court “will be vigilant to ensure that the interests of group members are protected and that only reasonable costs are charged in a settlement distribution process”. [citing Reilly v Australia and New Zealand Banking Group Limited (No 6) [2024] FCA 965, [20] (O’Bryan J).]

6.     The overarching test is whether allowing the additional costs sought would be “in the interests of Group Members considered as a whole”. It is relevant to, but not determinative of, that test that the costs have been independently assessed as fair and reasonable. [citing Yasmin v Commonwealth of Australia (No 3) [2025] FCA 732, [35] (Horan J).]

31    Both the applicant and the Commonwealth accepted these were appropriate principles for the Court to apply, and the Court agrees. Plainly there is an evaluative exercise of the Court to undertake: as to the basis for the increased costs sought, the reasonableness of the sums sought in the context of the administration task being undertaken, and an evaluation of where the interests of group members lie in respect of the application.

My reasoning

32    In considering the Court’s supervision of settlements reached in class actions, the legal representatives for the applicant, the three individuals from Deloitte whom the Court has appointed Administrator, the costs assessor, and the legal representatives for the Administrator, all function as service providers. Within their own areas of expertise and experience, they are providing services to the parties, in particular to the applicant and group members, to facilitate the implementation and administration of a settlement the Court has approved as one that is fair and reasonable and in the interests of group members.

33    While this function forms part of their firms’ ordinary commercial activities, from the perspective of the Court and its role in the administration of justice, these firms and individuals within them are providing services to litigants before the Court, in a jurisdiction where – quite uniquely – the Court’s exercise of judicial power includes a supervisory and protective role in respect of group members. Reimbursement for the services provided is an outcome of the Court’s supervisory role, and is bounded by considerations of reasonableness and appropriateness to the service provided to group members as part of the administration of justice. The Court is not, by its orders, engaged in any function of facilitating or maximising the commercial sustainability and gain of the service providers.

34    It is not a complete answer to the Court’s concerns to say merely that additional funds sought by the Administrator will be paid by the Commonwealth, and therefore there will be no potential financial detriment to group members in allowing the Administrator’s application (see [6] above and [76]-[77] below). It is true, as the authors of Class Actions in Australia (Grave D, Adams K and Betts J (3rd ed, 2022)) write at p. 1045:

There is an onerous duty on the Court when approving settlement under s 33V of the Federal Court Act to ensure such settlement is fair and reasonable to all group members … Such duty comprises part of the Court’s protective role and necessarily extends to the appointment of an administrator of the approved settlement scheme.

35    But the supervisory role of the Court extends further than the protection of group members. The authors of Class Actions in Australia also quote part of the following paragraph of Lee J’s judgment in McKenzie v Cash Converters International Ltd (No 4) [2019] FCA 166 at [13], with which I respectfully agree and set out in part:

The court’s role in these types of applications is often referred to as being an “onerous” one. … Integral to this process is a necessity for the court to be satisfied that any amount paid by a respondent to settle Part IVA proceedings is able to be distributed to group members with minimum cost and maximum efficiency. Indeed, this goes so far as being an obligation of the court when one has regard to the provisions of s 37M(3) of the Act which requires the civil practice and procedure provisions, which includes s 33V of the Act, to be applied in a way which best promotes the quick, inexpensive and efficient resolution of controversies.

36    The role of a settlement administrator has also been compared to that of a trustee, who is “required to properly and reasonably account for their costs and expenditure”: see Stanford v Depuy (No 7) [2017] FCA 748 at [24] (Wigney J).

37    It is implicit in the characterisation of the task of an administrator to which I have just referred, and to the overarching obligation for the Court to conduct its proceedings as effectively and efficiently as justice allows, for those who are providing professional services to group members to be held to high standards of accountability for the remuneration they seek, by way of Court order.

Deloitte’s tender as the basis for Court approval, and subsequent evidence

38    Shine had sent a detailed letter of invitation to prospective tenderers. The invitation letters to Deloitte and McGrathNicol are in evidence (Exh VA-3 Tabs 17 and 18), and I infer the letter to Grant Thornton took a similar form. The tender invitation letter to Deloitte was 5 pages long and set out in some detail the claims made in the proceeding (and therefore who the cohort of group members was), the fact that immediate family members could make claims, the registration date (of 31 August 2025), the amounts payable under the settlement and the timing of those payments, and the role of the Administrator. The invitation letter required prospective tenderers to set out:

a.     The relevant experience of your organisation for the role of administering and distributing the settlement fund in the Stolen Wages NT Class Action. In responding to this criterion, please provide information about your organisation’s:

i.     experience in handling human rights claims;

ii.     experience in undertaking large-scale scheme administration, and large-scale administration of claims;

iii.     electronic claims processing and scheme administration system;

iv.     technology and infrastructure (to the extent it will be utilised in the administration); and

v.     approach to data and cyber security.

b.     The names, relevant experience and location of the key personnel within your organisation who will be responsible for administering and distributing the settlement fund, including their experience in dealing with First Nations people, and human rights claims generally. As part of your response, please provide information about:

i.     your proposed method of communicating with group members; and

ii.     cultural training or competencies currently held/undertaken by key personnel, or your proposals for effecting same.

c.     A timeline identifying the dates by which you anticipate key milestones (such as eligibility assessments) will be completed, and the end date by which you anticipate fully distributing the settlement fund to eligible group members.

d.     In respect of the costs and disbursements of administering and distributing the settlement fund please provide estimates for the following on the basis of 10,000, 12,500 and 15,000 registrations:

i.     the basis on which costs and disbursements are to be billed including approximate cost per Potential Claimant and Potential Descendant Claimant;

ii.     an itemised estimate of the costs and disbursements for all aspects of the administration and distribution of the settlement fund; and

iii.     whether you propose that all or any part of your costs and disbursements as administrator will be capped, in an unqualified or qualified way, including the role of the Court or an independent supervisor in any uplift of a cap.

e.     How and when you propose to report to group members and the Court on your progress in administering and distributing the settlement fund.

f.     How and when you propose to manage the Settlement Sum whilst the SDS is on foot. Please prepare your response with, for example, reference to taxation, funds management or other relevant considerations.

39    The Deed and Scheme were attached to the letter. From that, prospective tenderers could see that the sum of $6 million had been agreed between the parties to be set aside as a maximum for the costs of administration of the scheme. They could also see that the Deed permitted access to the interest being earned on the settlement sums as the first way in which to pay the fees of the Administrator before needing to access any part of the $6 million maximum the Commonwealth had agreed to pay. In other words, any person familiar with these settlements, such as the Administrator, would have been able to see that more than $6 million was available for their fees.

40    All three tender responses were before the Court: Exhibits VA-3 Tabs 19 to 21. Each tender comprised a series of Aboriginal themed photography, or photography of remote and desert areas of Australia, and some used some Aboriginal themed graphics and Aboriginal language terms. Various representations about each firm’s experience and knowledge in working with First Nations Peoples and on class actions settlements were made, as were various representations about each firm’s commitment to community engagement with Aboriginal and Torres Strait Islander Peoples in particular, the adoption of reconciliation Action Plans, and various representations about the values to which each firm adhered including in its use of supply chains.

41    Deloitte’s tender in particular commenced with an Aboriginal-styled graphic. Each page of the tender had this graphic. In the letter to Ms Thomson of Shine Lawyers on the first page, Deloitte said:

We have a deep understanding of the complexities in respect of standing up and operating people driven, and technology enabled solutions in this space. Our end-to-end solution can be customised and rapidly deployed to provide a consistent experience for all Claimants. Our solution provides a single platform to collect, store and manage Claimant information in a secure environment to facilitate the distribution of remediation payments and query management.

In addition, Deloitte has deep relationships with Indigenous community groups in the Northern Territory, and we have a unique partnership with the yamagigu Consulting Group in the area. This team will support you and our project team by delivering Indigenous cultural awareness training and by explaining cultural sensitivities such as the importance of deep listening skills.

We will work collaboratively with your team to leverage your existing knowledge of the Claimant population and how you engage with Claimants to deliver successful query management processes to ensure consistent and efficient user experience for Claimants. Our Claims and Contact Centre brings many years of experience with settlement administration, distribution of wage remediation payments and settlement funds experience to deal with Claimants in an empathetic and effective manner.

Our tailored solution in this proposal draws upon our experiences in class action settlement administration processes and showcases our suggested methodology to conduct the settlement administration in a cost-effective, responsive and stakeholder appropriate way. In particular, we have extensive experience in the preparation of payment files for execution, ensuring the right people are receiving the right entitlement.

42    Under the heading “communicating with Claimants”, Deloitte said:

Our approach to class action settlement administrations is designed to optimise the end user experience to maximise engagement and nurture trust. Central to our solution is an online portal which serves as the primary communications channel, that is easy to access and navigate. Our platform will be setup in a closed registration process whereby only those Claimants who have submitted a Registration form can proceed through the eligibility process. Supporting this channel with a phone line attended to by live operators (and an after-hours voicemail service) and the use of Interactive Voice Responses (IVR) further enhances the Claimant experience as it provides immediate information to the callers and reinforces the portal as the primary communication channel.

43    This approach appears digitally driven, assuming easily accessible and reliable internet access and suitable up to date hardware and software available to claimants. While it is correct that the other tenderers also adopted this approach, it perhaps should have been more apparent that this was not a good fit with the cohort of group members in this case, experiencing high disadvantages and living in remote communities. The Court’s attention was not drawn to any of these issues when asked to consider and approve the tenders. The McGrathNicol tender did nominate a specific First Nations person who would act as a consultant during the administration and on p. 32 of its tender stated:

The Administrators are bound by the SDS to be independent and to act fairly and in the interest of all Claimants, which means the Administrator needs to be reasonably satisfied as to a potential Claimant eligibility before concluding a distribution is payable.

The SDS sets out the nature of the information that is acceptable for demonstrating one's eligibility, which may include photos (of potential Claimants who are alive); state records; signed statements; birth certificates, death certificates or adoption papers.

Certain aspects of fulfilling these documentary requirements may be challenging for the potential Claimants. Despite their best endeavours, potential Claimants may not be able to provide usual forms of identification such as birth certificates, driver's licence, passport. It may also be the case that records are incomplete, particularly in the context of people of the Stolen Generation.

With respect to the potential Claimants that are descendants (spouse and children) we recognise that our processes will need to be cognisant of aboriginal laws and customs; for example, with respect to adopted children who have been adopted in accordance with aboriginal law and customs.

We also foresee that our process will need to remain accessible and able to be used by potential Claimants who are not comfortable communicating and reading written English.

We will be working closely with and seeking the advice of Sarina Jan who will assist us in assessing these types of pieces of information from a cultural lens, to inform McGrathNicol in our eligibility assessment and ensure we make balanced assessments based on all the relevant criteria as set out in the SDS.

44    On the next page dealing with “Eligibility” the McGrathNicol tender also describes the need for cultural advisor input into the eligibility assessment process. The McGrathNicol tender stated:

We are proposing a team that provides a social infrastructure, using cultural experts, who are deeply connected to the relevant communities to inform the Administrators of any intricate cultural matters relevant to the Administrators decision making process.

45    In hindsight, the issues McGrathNicol sought to address by using a cultural advisor are aligned with the issues Deloitte now contend have exacerbated and increased the time and costs to conduct the administration. Save for what I outline below, there is no express consciousness of these matters in Deloitte’s tender.

46    Returning to Deloitte’s tender, on the “Communications” page Deloitte did say:

COMMUNITY OUTREACH

The yamagigu team, with existing networks in the NT can be deployed to communities throughout the Northern Territory to assist with requests for supporting evidence where there are eligibility issues and explaining distribution statements to Group Members. More detail on our existing network of Aboriginal community organisations can be found in “Our Indigenous Expertise” section on slide 12.

47    Under the heading “Our indigenous expertise”, Deloitte said:

As a firm, we work on many projects that affect First Nations Australians and want to do our best to bring the right intention and the right capability to the task of getting the best outcomes from each of these projects. Deloitte Australia has adopted a four-pillar Indigenous Strategy that we believe can assist in every action we take, including project work. This strategy, with the pillars of Voice, Treaty, Truth and Country, together with the Truth and Reconciliation Action Plan (RAP) form part of our plan to achieve our aspiration of undisputed leadership. Deloitte has established a RAP Working Group to drive forward these actions for our organisation and community.

48    It is not apparent to the Court how this four-pillar strategy has constructively advanced the work Deloitte has done in the present administration, or in reality how it could have done so, given its high-level objectives.

49    The page went on to describe the Indigenous artworks present in Deloitte’s offices, roundtable discussions Deloitte attends at the Institute of Chartered Accountants about growing the numbers of Indigenous Chartered Accountants, a partnership with a coffee company and membership of the Supply Nation program.

50    Under the heading “Data Quality and Data Integrity”, Deloitte said its assumptions were:

The Registration process and outreach endeavours will be led by Shine Lawyers between September 2024 and August 2025.

Our yamagigu team will assist, where necessary, during the application of the eligibility criteria to Registrations collected by Shine Lawyers,

51    In her first affidavit, Ms Kaye repeats the assumption that the Administrator would not be undertaking outreach, including through yamagigu (at [24]). [Y]amagigu is the indigenous consulting group Deloitte referred to in its tender. However she does not depose to any efforts by yamagigu to assist, where necessary, in the application of the eligibility criteria to registrations.

52    Otherwise, there is no reference in Ms Kaye’s affidavit material, or Ms Grimley’s affidavit, to Deloitte using yamagigu.

53    In other words, whatever Deloitte said in its tender about yamagigu, there is no evidence before the Court that substantive advice and pro-active contributions have been sought from that organisation to ensure that the approach to eligibility criteria and communications with group members have been appropriately informed by a real understanding of the disadvantages faced by this cohort and the severe communications challenges imposed by living in remote communities.

54    The applicant’s settlement approval submissions at [60]-[68] set out the tender process, and noted that the tenders from Deloitte and Grant Thornton were considerably less than McGrathNicol. The applicant submitted (at [66]) that it is undesirable for the same Administrator to be appointed in this proceeding and the related Western Australian proceeding Street v State of Western Australia (see principal reasons at [12]).

55    The Commonwealth’s submissions at [172]-[176] made similar points, with the additional submissions that McGrathNicol proposed to commence payments faster than Deloitte and Grant Thornton, which might suggest McGrathNicol had unrealistic timeframes ([175]).

56    At the settlement approval hearing, the Court was informed that that Murphy J was going to appoint Grant Thornton in the Street proceeding. Taking that into account, the parties expressed a preference for Deloitte:

MR W. EDWARDS: And your Honour would be comfortably satisfied, we would say, on the basis of Ms Antzoulatos’ affidavit that appropriate notice of this hearing, consistent with your Honour’s orders, has been given. That, of course, is an important factor to take into account. Returning, then, to the deed – and I will come back to the registration process in a moment – your Honour will have seen in clause 2.2.3 that it is the applicant, via Shine Lawyers, that is responsible for completing that process, and that’s the process your Honour has ordered. It was to commence as soon as approved by the court, and your Honour did that, and it’s to continue concurrently with the administration unless or until concluded, and so what it is contemplated is that if the court approves the settlement and appoints the administrator, they will start administering at the same time as the registration process is continuing. Your Honour will have seen - - -

HER HONOUR: Are both administrators – at the moment – well, there was in the material a submission that there was a – although three had tendered, there was a choice to be made between two who were reasonably close in terms of their tender prices, but I think I saw in your orders that there might have been a proposal for one.

MR W. EDWARDS: You - - -

HER HONOUR: But in any event, is it the case that those administrators are ready and willing to start promptly?

MR W. EDWARDS: We believe so, your Honour. The reason that we have put forward the firm Deloitte in these orders is because a concern that Ms Antzoulatos had and the Commonwealth shared is that if one organisation were to be administrator for this case and also for the West Australian case, it would be too much for them. Now, we understand that Murphy J is going to appoint Grant Thornton in the West Australian case.

HER HONOUR: I was going to ask about that, and I won’t press you on how you understand that, but that’s what you put as the understanding for the moment. So Deloitte - - -

MR W. EDWARDS: Yes.

HER HONOUR: - - - would be an appropriate - - -

MR W. EDWARDS: That’s right.

HER HONOUR: - - - administrator in this matter, in your submission.

MR W. EDWARDS: In my submission. Provided that your Honour does do that.

Now, your Honour, I’m not going to be coy about this. The settlement approval hearing in Western Australia was last week. His Honour said on the transcript he was minded to appoint Grant Thornton.

HER HONOUR: I see.

MR W. EDWARDS: His Honour directed us to check with Grant Thornton some things about how quickly they needed moneys set aside for their fees. So we’re working on the basis that Grant Thornton will be appointed. We think orders will formally go up to his Honour in that case if not this week, very early next week.

HER HONOUR: All right.

MR W. EDWARDS: But we do press the submission that those are the two contenders, but it would be undesirable for the one firm to be doing both jobs at the same time.

57    Senior Counsel for the Commonwealth submitted:

HER HONOUR: And will you address where the Commonwealth – well, the court has a choice about administrator.

MS McLEOD: Yes. Yes.

HER HONOUR: Will you address what choice the Commonwealth says the court should make?

MS McLEOD: Yes, your Honour.

HER HONOUR: Right.

MS McLEOD: And I can do that very briefly by flagging we’re happy with Deloitte’s. We have heard what has been said about Grant Thornton. They were one of the appropriate people, given their estimate and their experience, and we have heard what has been said about what’s likely to happen in the Western Australian case. Our preference is that one administrator not do both because of the burden of that work.

HER HONOUR: Well, Mr Edwards’ instructors are doing both.

MS McLEOD: Yes.

HER HONOUR: In terms of registration.

MS McLEOD: Yes, they are.

HER HONOUR: So why is it different for the administrator? Like, is it – do we know from the administrator – we don’t know from, for example, Grant Thornton - - -

MS McLEOD: Yes.

HER HONOUR: - - - that they – that their tender for this is made on the basis that they couldn’t do both.

MS McLEOD: That’s correct.

HER HONOUR: Do we?

MS McLEOD: No, we don’t have that information. And as I have said – or indicated, we don’t actually know for sure that they have been appointed by Murphy J.

HER HONOUR: No.

MS McLEOD: So we’re in a grey zone there. But as I said, either would be appropriate, in our view.

HER HONOUR: And on – on – from the Commonwealth’s perspective, is there any – do you put any explanation by way of submission about why the McGrathNicol tender is so much higher? Is it explicable on the documents? They were all given the same set of assumptions, as I understand it.

MS McLEOD: I don’t, your Honour, but can I park that for a moment.

HER HONOUR: Yes, please.

MS McLEOD: Because there may be something revealed in the documents I can help you with.

58    When the Court put the same question to the applicant’s Senior Counsel, he gave the following response:

HER HONOUR: And you don’t – I asked Ms McLeod but I hadn’t actually asked you. You don’t submit that there’s anything that stands out in the tender of McGrathNicol that illustrates why their tender is so much larger.

MR W. EDWARDS: I can’t point to something, your Honour. It was, however, striking that two firms came within a pretty close range of each other and one firm did not. Now, we can only speculate as to why that may be the case but given the familiarity that Grant Thornton had with the issues, if I could put it that way, I think it would be fair to say that their tender had the benefit of expertise attached to the number because the work they had done, I think, was felt by Ms Antzoulatos along the way to mean that the tender number could be approached with a great degree of reliability. And then when we saw Deloitte as having in a similar range, that suggested that either of those two within that range would be appropriate.

59    In other words, generally the two parties did not alert the Court to any considerations beyond the costs estimates and the role of Grant Thornton in the Street proceeding. The applicant’s submission implied the higher costs in the McGrathNicol tender should lead to the Court not approving that firm. As it turned out, that tender might have been not as out of range as initially suggested, on the material now before the Court.

60    The Court relied on the parties’ positions, but in hindsight should have interrogated the material more, especially given the disparity in the tender price from McGrathNicol, and the rather different proposed conduct of the administration by it. I do also accept however, as Senior Counsel for the applicant submitted, that much of the detail (in terms of assumptions) now revealed in Ms Kaye’s affidavit (eg at [46]) is not detail that was revealed in the tender, so these assumptions were unable to be interrogated by the parties at the time the Court was approving Deloitte.

61    As the evidence and argument ultimately developed on the increased costs application, Deloitte does not appear to have had any real experience in the administration of a scheme like the current one, involving vulnerable and disadvantaged group members many of whom live in remote and regional areas. This kind of situation should not be repeated in future settlement approval applications; more frankness is required by tenderers for administrator services and more scrutiny should be applied by the Court, if necessary by considering the appointment of a contradictor. As I observe elsewhere in these reasons, the Court still has no evidence at all about the quality of the services provided from the perspective of group members, and whether group members have been satisfied with them, and have felt assisted by them.

62    Finally, I note that the amount approved by the Court in its initial orders was $1.8 million, which represented Deloitte’s tender estimate on the basis of 15,000 registration: see p. 25 of its tender document. The evidence as it stands (from Ms Thompson’s second affidavit filed on the costs increase application) is that there have been 13,216 registrations as at 6 October 2025. In other words, the actual registrations have still not reached the threshold on which Deloitte submitted its original tender price, and yet it is still being contended the existed approved costs are inadequate.

No suppression orders sought at settlement approval

63    No suppression orders were sought, or made, in respect of any of the tender documents. The documents and the pricing and information in them, was all discussed in open Court during the settlement approval hearing. That was entirely appropriate, because of the nature of the services to be provided by the Administrator, the interests of group members and of the wider community in the steps proposed to administer the settlement of very large sums of taxpayer funds being paid out by the Commonwealth, and because of the Court’s supervisory role.

The costs assessment

64    Properly, Mr McCarthy relied on the assessment undertaken by Ms Harris, costs assessor, pursuant to cll 2.15.4 and 2.15.5 of the Deed. In the written submissions, he contended (at [13]):

Of the costs incurred by the Administrators so far assessed by the Costs Assessor, all have been assessed to be fair and reasonable. The Costs Assessor also acknowledged in her report dated 17 July 2025 that the costs were higher than anticipated, including because of the increased time spent undertaking eligibility reviews, and the additional complexity of the assessments.

65    The Deed does not provide for Ms Harris’ reports to be provided to the Court. As the Administrator relied on the reports in the present application, the Court wrote to the parties and asked that the reports be provided. The reports were annexed to an affidavit of Mr McCarthy dated 11 November 2025, and the parties consented to the affidavit being taken as read on this application. The Court has made an order to this effect above.

66    When Mr McCarthy’s affidavit was provided, the Administrator’s legal representatives also provided the following correspondence:

The Administrators respectfully submit that the Costs Assessor’s reports should not be made available on the online file. The Costs Assessor’s reports contain commercially confidential information which is subject to the Administrators’ application for suppression orders pursuant to 37AF of the Federal Court of Australia Act 1976 (Cth), and in respect of which her Honour is presently reserved.

In particular:

1.    Page 1 of each of the Costs Assessor’s reports dated 19 June 2025, 17 July 2025, and 8 August 2025 contains a table breaking down the costs budgeted and incurred across each of the phases of the Administration. Those figures are one of the matters over which the Administrators seek suppression orders (see items 9 and 10 of the Annexure to the interlocutory application dated 10 October 2025).

2.    Page 2 of each of the Costs Assessor’s reports dated 17 July 2025 and 8 September 2025 contains a table breaking down the sum of fees and sum of hours for each level of staff member involved in the Administration, from which the hourly rates of those staff members can be simply ascertained. Those rates are one of the matters over which the Administrators seek suppression orders (see item 14 to the Annexure to the interlocutory application dated 10 October 2025. The Deloitte Tender Response includes those rates).

In those circumstances, the Administrators request that the Costs Assessor’s reports not be uploaded to the online file. In addition, if the Court is minded to grant the Administrators’ application for suppression orders, the Administrators respectfully request that her Honour considers making such orders in respect the relevant parts of the Costs Assessor’s reports, also.

67    Ms Harris’ report dated 19 June 2025 covered the Administrator’s costs in the period 18 November 2024 to 31 May 2025, and was annexed as exhibit MM-1 to Mr McCarthy’s 11 November 2025 affidavit. In the report, Ms Harris refers to letters she received from the Administrator regarding its costs over the period, as well as a spreadsheet of professional costs. She notes that the number of calls received from group members has been significantly higher than anticipated, and accepts that the Administrator has taken “all reasonable steps to deal with these calls in a cost effective manner.” She concludes that costs incurred to 31 May 2025 were reasonable “having regard to the work undertaken”. She also considered Hutton McCarthy’s invoices to be reasonable.

68    Ms Harris’ report dated 17 July 2025 covered the Administrator’s costs in the period 2 June to 30 June 2025 and was annexed as exhibit MM-2 to Mr McCarthy’s 11 November 2025 affidavit. She again refers to letters and email from the Administrator providing information regarding costs, and a spreadsheet of professional costs. Ms Harris states that she has reviewed some individual time entries, and having received an explanation, found the costs charged for the work undertaken in June to be reasonable. This report also notes that the previous report gave incorrectly low rates. Ms Harris considered the revised rates (amounting to an additional $106,138 exclusive of GST) to be reasonable. She also considered the legal advice sought from Hutton McCarthy over the period, and the fees charged for that advice, to be reasonable.

69    Ms Harris’ report dated 8 September 2025 covered the Administrator’s costs in the period 1 July to 31 July 2025 and was annexed as exhibit MM-3 to Mr McCarthy’s 11 November 2025 affidavit. She reviewed letters and emails from the Administrator, and a spreadsheet of professional costs, and finds the work undertaken to have been reasonable.

70    Although Ms Harris’ reports are relatively light on detail, and do not necessarily fully explain her reasoning in finding the Administrator’s costs to be reasonable, I do not consider this to be inappropriate in circumstances where the sums involved for each period she assessed are (in the broader context of this proceeding) relatively small, and there is a need to constrain costs, including her own costs. I accept her assessments. Her assessments are, as Mr McCarthy submitted, relevant to and supportive of the costs increase application.

71    I deal with the question of suppression orders over Ms Harris’ reports below.

The matters relied upon

72    At [9]-[10] of the Administrator’s submissions, the Administrator relies upon:

9.     The estimated Administrators’ costs were calculated on the basis of a number of assumptions about the administration, informed by Deloitte’s previous experience administering other settlement distribution schemes, the requirements set out in the Scheme, and the information provided by Shine Lawyers. Those assumptions are set out in the First Kaye Affidavit, and relevantly included that:

(a)     the Administration would run for a period of 12 months;

(b)     50% of claimants (or approximately 7,500 Claimants out of an assumed maximum of 15,000 Registration Forms) would contact the Claims Contact Centre;

(c)     Registration Forms would be received in one or two large batches, and there would be no duplicates;

(d)     80% of claimants would provide sufficient information to enable an eligibility assessment to be completed, with the other 20% requiring outreach or a request for additional information to enable assessment of eligibility;

(e)     it would take the Administrators, on average, four minutes per Registration Form to determine eligibility, with an additional 11 minutes allowed for those Registration Forms which required further information or material to be obtained from Claimants; and

(f)     six payments would need to be made out of the Settlement Fund Account in total.

10.     As the administration of the Scheme has progressed, those assumptions have turned out not to be true. In particular, by reference to those set out at [9] above:

(a)     prior to the recent amendments to the Scheme, the number of Registration Forms with insufficient evidence or information for an eligibility determination was approximately 49%;

(b)     the Administration will in fact run for a period of approximately 20 months;

(c)     the number of Claimants contacting the Claims Contact Centre is significantly higher than anticipated, with 17,526 calls received between 7 April 2025 and 19 August 2025;

(d)     Registration Forms have been received in fortnightly tranches, with 14 tranches received to 5 September 2025, and approximately 7.4% of Registration Forms received being identified as duplicates;

(e)     prior to the recent amendments to the Scheme, it took the Administrators on average 22 minutes per Registration Form for an eligibility determination to be made; and

(f)     ten payments have been made out of the Settlement Fund Account for Interim Payments alone already, with additional Interim Payments and final Distributions still yet to be made.

73    Neither the applicant nor the Commonwealth contended these matters were not made out on the evidence, and the Court accepts there is evidence to support these submissions. I expand on some of these matters below.

74    The Court accepts that the extension of the registration date (by orders made on 29 August 2025) is an objective factor contributing to an increase in costs for Deloitte. It can be accepted that as soon as the Court approved the registration date extension it was likely this application would be made, and that it had been foreshadowed by Deloitte. This illustrates the issues I refer to elsewhere in these reasons about the importance of tighter and more active scrutiny of initial proposals at the settlement approval stage, both as to timelines, realistic assessments of work to be performed and to the likely costs of services.

75    The pressure (including the pressure felt by the Court) to secure settlement approval in as timely a way as possible should not overshadow the need for careful and thorough assessment of proposals put by service providers to the settlement scheme. It is more likely that public confidence in the settlement approval process, and indeed group member confidence, will be enhanced by realistic and thorough assessments at the first stage of settlement approval, rather than by service providers coming back to the Court and seeking more fees and costs, extensions of time and the like. That practice of returning to ask for more (whether it is more time and therefore delays, or more money) is more likely to erode confidence in the approval process, and in the Court’s role in it. Obviously, it also increases the use of public and private resources in the time and legal costs involved in coming back for further hearings and the considerable costs in submitting material of the magnitude submitted on these applications.

76    The Court also accepts that to the point of the costs increase application, the Administrator’s costs have been paid out of the interest on the settlement sum. It can be accepted that at least some of the amounts sought on the increased costs application will also be covered in this way. The remainder will be drawn from the $6 million which as I have explained is quarantined by the terms of the Deed from being available to group members.

77    Thus, it can be accepted that there is no impact on the amount of the settlement sum available to group members by the costs increase application. Nevertheless the $6 million is a maximum, and represents taxpayer funds, so that any further proposed expenditure should be reasonable and justifiable. The expenditure should also accord with the requirements in s 37M of the Federal Court Act.

78    Given the matters I have highlighted from the original tender by Deloitte, it remains my view that Deloitte ought to have anticipated many of these issues now relied on as increasing costs and factored them into their original tender. Not having done so appears to me to be the main reason for the costs increase application.

79    The parties may also bear some responsibility for not having really worked through in a careful and proactive enough kind of way the eligibility criteria set out in the Deed, and not having turned their minds sufficiently to the challenges this particular cohort of people might have in providing some of the identity documents required, in being able to identify with enough precision some of the dates and locations of work required under the Deed, and in gathering sufficient information where the actual workers had passed away. These challenges were better recognised by the amendments made to the Deed after discussion between the parties and the Administrator. Thus, while Deloitte’s material describes the improved access to the distribution scheme as a “benefit” to group members, it is what they should always have been entitled to.

80    With closer attention paid to the ‘real life’ circumstances of this cohort of group members, and with greater consultation with organisations who are working daily in remote communities, more suitable arrangements should have been made in the original Deed and Scheme. Again, that is all with the benefit of hindsight, but these are matters to be taken into account in future class actions with similar cohorts of group members.

81    In oral submissions Mr McCarthy submitted to the Court that Ms Kaye had spoken to yamagigu as part of preparing the tender and had “assessed all those matters”. It is unclear what this referred to, but I infer to the prevalence of various forms of disadvantage, and also remote locations, in the group member cohort. He also submitted that the assumption was that Shine would undertake a very extensive outreach program.

That they would be travelling from community to community, and they would be working with people to make sure that the forms that were being prepared met the requirements of the scheme. Now, Shine have a lot of experience with this type of matter, having completed it in other jurisdictions. And I think that was influential in my client’s thinking about what level of further information would be sought. That position has been changed. And I think it’s good that that position has been changed, because it has meant that there’s more money available for the class members. But I think it is influential in my client’s original thinking when the tender was first submitted.

82    Mr McCarthy did not positively contend that Deloitte had ever worked on a class action of this kind before. The evidence before the Court discloses no substantive level of consultation by Deloitte with any organisations who are working regularly with First Nations Peoples in the communities where group members in this class action live. While I accept there was some reliance by Deloitte on the outreach program in which Shine was engaged, the weaknesses in that program are matters the Court has already made findings about: see principal reasons at [456]-[478] and [516]-[560]. The weaknesses are of the same character as those now apparent in Deloitte’s approach to the services it is providing to group members.

83    Mr McCarthy made the point (in reply) that initially Deloitte was required to apply the distribution Scheme as it was initially drafted, and that the so-described “strictness” of some of the eligibility requirements stemmed from the Deed and Scheme themselves. I have already made some observations about the original eligibility criteria and how the parties’ approach might have been different.

84    It was not clear to the Court that the applicant and the Commonwealth agreed that the way Deloitte was approaching eligibility under the original provisions in the Deed and SDS was the only way it could have been approached. Nevertheless, the Court accepts that the parties and Deloitte sensible and cooperatively agreed to refine the eligibility requirements so as to improve accessibility to the scheme and timeliness and efficiency of decision making for Deloitte. As Mr McCarthy submitted, the amendments have resulted in improved processing times and costs efficiencies.

85    Perhaps there were incentives to submit tenders with what appeared to be very cost effective amounts. Perhaps there were misunderstandings of what the task involved. In one sense it might be said that where the actual costs to this point are established by evidence, and explanations given for underestimate, the reason for the mis-alignment between the tender and the actual costs does not matter. It might be said that what matters is the reality of there being increased costs, in the context of the overriding responsibility to administer the scheme as effectively and fairly as possible so that as many group members who are eligible claimants are able to register and to receive payments. Ultimately, this kind of reasoning has persuaded the Court to approve the costs increase application.

86    However, the reason might have mattered if, for example, a contradictor was urging the Court to make a determination that Deloitte bears responsibility for the position it is in and therefore should be compelled to finish the administration and simply make less profit on this administration, or make a loss. There was no such contradictor. There is no proper basis to deny Deloitte approval of the payment of the increased costs it seeks, on the uncontested evidence it has adduced.

87    That does not mean the Court accepts all the submissions put by Deloitte. While much of Deloitte’s evidence and submissions was expressly couched in terms of “benefits” to group members because of the additional availability of call centres and the like and therefore “benefits” available through the approval of the increased costs application, as I observed during the hearing there is no evidence at all from group members about their satisfaction, or lack of satisfaction, with their experiences of the call centres, or of dealing with Deloitte’s staff.

88    Where value laden terms like “benefits” are concerned, care must be taken. The Court has no evidence whether these interactions by group members have been positive, negative or neutral experiences, or whether they have been helped or hindered by these interactions. Certainly, the evidence suggests that the increase in costs has been occasioned in large part by Deloitte running a larger call centre, with more staff, and for longer periods of time, and (Ms Kaye’s evidence suggests) more frequent contacts from individual group members. So that what can be said is that Deloitte has provided an increased opportunity for group members to contact staff working on behalf of the Administrator. And the Court is entitled to assume, as it does, that Deloitte’s staff have done their best to be attentive, empathetic and helpful to the group members who have called or contacted the Centre. On that basis, the opportunity for increased contact, provision of information and assistance can properly be described as a benefit to group members.

Ultimately, interests of the group members prevail

89    The situation the Court has been placed in is undesirable. While in principle the Court is in a supervisory role and able to determine whether or not to approve increased costs, in reality the scheme is about two thirds through its administration and it would be contrary to the interests of group members to refuse approval where this is likely to lead to a diminishment of services to group members.

90    The other difficulty is there was no active contradictor, although I accept counsel for the Commonwealth, the funder and the applicant did attempt to assist the Court in its deliberations. It would not be an appropriate course for the Court to take to refuse approval over the tacit or express agreement of all the active parties.

91    Ms Harris, the costs assessor, has assessed Deloitte’s costs as reasonably incurred. There has been no challenge to the way in which Deloitte has calculated its costs, nor to its estimates of its future costs to complete the administration.

92    In all the circumstances, the increased costs application should be approved.

For the future

93    This application and the arguments made suggest much greater scrutiny is needed at the stage where the court is determining approval of amounts to be paid to administrators, and perhaps a greater need to test the tenders being put forward, and require more active scrutiny from the other parties.

94    Looking forward, the Court expressly suggested to Mr McCarthy that the manner in which this application was structured, and the evidence of Ms Kaye all suggested this is the final costs increase application.

95    Indeed Ms Grimley’s affidavit at [28] expressly deposes to the Administrator’s intention that there be only one costs increase application:

The Administrators formed the view that it would be in the interest of cost minimisation to bring only one application for uplift in fees, once the relevant information set out above was known, rather than multiple.

96    Mr McCarthy stated that his instructions are there should not be a further application.

97    It remains to be seen if Deloitte’s position as expressed by Ms Grimley remains accurate. It is not conducive to public confidence in the settlement approval process itself, nor public confidence in the Court’s judicial role in supervising these settlements, for firms who are service providers to repeatedly approach the Court asking either for more time (thus delaying finalisation) or more money, or both.

Transparency

98    The principles upon which this costs increase application is made, and the considerations which the Court must weigh, all tend to support an approach that enhances transparency in the material before the Court, so that a complete basis is revealed for its approval of further expenditure of taxpayer funds in favour of Deloitte as a court supervised service provider.

99    That consideration is one I have taken into account in the decision on the suppression application.

Any residue of the $6 million

100    In its submissions on the costs increase application, the Commonwealth contended that the revised Administrator costs of a total of $3.2 million, much of which has been paid from the interest on the settlement sum, means that there is likely to be around $5 million remaining of the $6 million of taxpayer funds initially set aside under the Deed to pay for the administration.

101    The Funder made a suggestion that the Commonwealth could now pay over the $6 million into an interest-bearing account, and the interest of that sum could be applied to either pay the increased Administrator costs, or additional legal costs if any further such costs were approved by the Court. That proposal was not embraced by the Commonwealth.

102    Therefore, the position remains that the Commonwealth proposes to pay out portions of the $6 million pursuant to Court orders only, and in reimbursement for services provided by the Administrator: see [103]-[104] of the principal reasons.

103    Senior Counsel for the Commonwealth did inform the Court that the Commonwealth had “agreed” to any sums remaining from the $6 million being applied to pay the Applicant’s Actual Legal Costs, as that term is used in the principal reasons, and in the Deed: see for example [368]-[369] of the principal reasons.

104    Senior Counsel informed the Court there was no written agreement, but there was nevertheless such an agreement by the Commonwealth.

105    Much of Ms Thomson’s affidavit read on this application appears to be laying the groundwork for future applications by Shine for approval of further large sums of legal costs to be paid to the firm. The Court is not dealing with those applications in these orders or reasons.

The suppression application

106    On 10 October 2025, the Administrator filed the Administrator’s suppression application, supported by an affidavit of Ms Kate Grimley, a partner at Deloitte SRT, which I infer to be a related entity to Deloitte. This affidavit was ultimately read in support of both the Administrator’s suppression application and the costs increase application.

107    The information which Deloitte seeks suppressed is attached in a table to the interlocutory application. All the information is contained in Ms Kaye’s affidavit of 25 September 2025. In oral submissions, Mr McCarthy proposed there could be a “non-publication order” over the material rather than a suppression order. It was unclear to me to whom the non-publication order would be directed; Mr McCarthy submitted that his client’s main concern was their competitors. However, Ms Gimley’s affidavit went to this issue. If a non-publication order is proposed to be directed to a subset of people (eg parties and their staff, and group members) it suffers from the same issues about enforceability that I explain below.

108    There was some discussion whether the Court might place a direction on the file limiting who could inspect an unredacted version of Ms Kaye’s affidavit, and limit the prohibition on inspection in a way that required disclosure of the purpose for inspections. Mr McCarthy correctly submitted this might not be a workable solution. It also poses issues about what persons who are able to inspect the affidavit can then do about further distribution or publication. In any event, by the terms of s 37AG the Court must be satisfied to the same standard as for a suppression order, and the Court is not so satisfied.

109    For the reasons that follow, the suppression application should be dismissed.

The arguments in summary in support of the application

110    The principles relied on for the suppression application are well-established and I set them out recently in McDonald v Commonwealth of Australia (No 2) [2025] FCA 631.

111    Deloitte relied on several particular class action authorities: AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2025] FCAFC 97; Country Care Group Pty Ltd v DPP (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377; CEU19 v Minister for Immigration, Citizenship & Multicultural Affairs [2019] FCA 1050; (2019) 165 ALD 566; Australian Securities and Investments Commission v eToro AUS Capital Ltd [2025] FCA 100; Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839. I do not consider the circumstances are comparable, especially cases such as Mercedes-Benz. In that case there were no public interests at work; the dispute was between private commercial parties, and Mercedes sought orders in a context where it was adducing material to defend a proceeding: see [11]. The Full Court also said:

We note also that the figures are not necessary for the public to understand the Full Court’s reasoning.

112    As I explain in these reasons, the contrary is the case here, especially given the tender documents are on the court file and have been available for inspection since 25 October 2024. Of equal importance is the very different nature of this proceeding and the fact that if the costs increase application is approved, the Commonwealth will be liable to payments of additional taxpayer funds.

113    Mr McCarthy accepted quite properly that the authorities on which Deloitte relies concern funders’ suppression applications and not suppression applications by administrators. The applicant contended and Mr McCarthy accepted that extension of principles from litigation funders to administrators was sought. Mr McCarthy submitted that Deloitte has confined its suppression application to what it considers to be necessary to avoid the prejudice to the administration of justice upon which it relies, and therefore that the extension of the reasoning in the cases about funders was justifiable.

114    The argument by Deloitte is that the calculations given by Ms Kaye in her evidence about Deloitte’s costing in conducting the administration, are commercially sensitive and reveal part of Deloitte’s business model. That is because the information, for example, directly reveals the hourly rates charged by Deloitte for different staff (the rate card table on p. 62 of the first Kaye Affidavit) or is information from which an informed competitor could calculate or estimate those rates.

115    This information is said to include the total amounts given in the tender submitted by Deloitte, but now extends, so the argument runs, beyond those figures to much of the detail of Ms Kaye’s calculations in support of the costs increase application.

116    Deloitte contends:

c.     The publication or dissemination of this information would cause commercial harm, because it would disadvantage Deloitte and would advantage Deloitte’s market competitors. This disadvantage is particularly acute in relation to future tenders to become administrators of settlement schemes, but is of broader effect.

d.     It would prejudice the proper administration of justice if these proceedings became a vehicle for advantaging or prejudicing trade rivals or if potential administrators of class actions were dissuaded from tendering for such work, because of the risk that commercially sensitive information would be revealed and they would suffer commercial harm.

117    It is said that disclosure of how Deloitte has calculated its costs for the remainder of the administration may advantage its competitors, and this should not be a consequence of Deloitte having to justify the increase in the administration costs that it seeks the Court to approve. This might in future discourage fulsome disclosure; or it might confer tactical advantages on Deloitte’s competitors, where the performance of administration functions in class actions should not become a vehicle for prejudicing or advantaging trade rivals. These matters are developed in Deloitte’s written submissions at [10]-[17].

118    As to the term and scope of the order, Deloitte submits:

18.     The term of the order sought is until such further order, such that final term can be fixed at a later point, such the Administration Final Date. It is accepted that at some point, market conditions are likely to have changed, such that the prejudice suffered by the publication or dissemination of this information is likely to be reduced.

19.     Finally, provision is made for the materials the subject of suppression to be provided to the parties. Similarly, there is no objection to the relevant materials being provided to Group Members, should they wish to see it.

My reasoning

119    I accept that granting this suppression application to an Administrator in the circumstances concerned would be an extension, or at least a new application, of existing principles. That said, if the Court is persuaded such an order is necessary within the terms of s 37AG(1)(a), then the order should be made; this exercise of power admits of one correct answer and is not in that sense a discretionary power.

120    However, I am not persuaded such an order is necessary.

121    As to the argument (see Deloitte submissions at [15]) that the evidence is currently not in the public domain, that in my view offers no justification for suppression, and contributes little to the threshold of “necessity”. It is inherently the case that a large proportion of the evidence adduced in a proceeding is not, prior to it being adduced, in the public domain. This statement is as true of witness evidence narrating – for example – an intimate encounter between two people which may be relevant to allegations of sexual harassment as it is for the adducing of information explaining how commercial costs of an accountancy firm are calculated. Many further examples could be given, including financial information of individuals and corporations which is never in the public domain until those parties need to adduce it to prove materials facts in a proceeding, whether to advance or defend allegations made in the proceeding. The principles of open justice more often than not operate on information not previously in the public domain.

122    As to the argument that a suppression order can be crafted in a way so that the calculations remain available to the parties and group members (Deloitte submissions at [19]), I explored this with Mr McCarthy during the hearing. Making the calculations available to group members would in my opinion render the suppression order unenforceable, and the Court should not make orders that are unlikely to be able to be enforced. The whole point of such an exemption is recognition that group members are entitled to know how Deloitte has calculated the proposal that in substance it be paid double the amount of its tender. Group members, including eligible descendant claimants, are a large group of many thousands of people. They comprise family groups. Some members of the family groups may not be eligible claimants but if Deloitte’s charges and calculations are of interest, they are likely to be discussed within family groups, within friendship groups, within community groups. They may well be discussed by community organisations working in the communities where group members live. Dissemination is inevitable. Tracking the dissemination is virtually impossible. Enforcing suppression orders with an exception for group members (or eligible claimants) is likely to be practically unworkable. This may suggest the orders are not necessary to avoid prejudice to the administration of justice, because they are not capable of being effectively enforced.

123    A further relevant point deserves noting. Section 37AL of the FCA Act creates an offence, punishable by a period of imprisonment of up to 12 months, for an act or omission contravening an order made by the Court under s 37AF (a suppression or non-publication order). One or more fault elements will apply to this offence, and while the risk of a prosecution of a group member may appear remote, the Court should nevertheless consider whether the making of a suppression order might place group members, or their families, at risk of contravening s 37AL.

124    In future proceedings of this nature, community or other organisations may well consider they could have conducted an administration like this, and done so in a more efficient and cost-effective way that serves their communities more effectively. In proceedings such as these, said to have “social justice” objectives, it is positively in the interests of the administration of justice that knowledge about how the administration of schemes is conducted be spread more widely. One reason is so that in the future, courts might be assisted about a wider variety of perspectives (including possibly from interveners) in terms of what kind of organisation should be approved to conduct an administration, and what the terms of any such approval should be. Another reason is that, so that a wider range of organizations can consider whether they are the more appropriate people to engage in the administration of such schemes.

125    The ability in the future for organisations with closer connections to communities or vulnerable groups themselves to conduct administrations, or be involved in their conduct, for commercial gain or even for profits that are then ploughed back into the communities they serve, is at least in part dependent on access to detailed information about how these schemes are run, and what the various costs components are. Perhaps an outcome such as that is unlikely, perhaps it is aspirational – but objectives and values such as self-determination and community control all favour detailed information about the administration of schemes, including costs and the break-up of costings, being available for the benefit of vulnerable people, rather than being hidden and unavailable.

126    As the Commonwealth submitted, on an application such as this, it is appropriate there is a transparent and public exploration of why it is just and reasonable, and in the interest of group members, for the Court to approve double the amount in costs to Deloitte for the administration of the settlement scheme, despite its tender amount. There is a public interest in requiring firms in the position of Deloitte openly to justify their claim to access additional taxpayer funds. A complete and accurate public exploration the justification requires that the usual access principles apply to the evidence relied upon. In that way, the community is able to understand how Deloitte justified the increase it sought, and to scrutinise and digest the Court’s reasoning for the orders it has made approving the increase.

127    The decision the Court has made is consistent with the approach taken in respect of Shine’s legal costs. Shine is as much in a competitive market for the provision of legal services as Deloitte is for the provision of administrative or financial services. The kind of legal services provided in this case is plainly a core part of Shine’s business, and on the current evidence the present administration services are less of a core part of Deloitte’s business. All Shine’s costings for the provision of legal services are publicly available in material before the Court (in affidavits, submissions and in costs assessors’ reports). This includes hourly rates for various levels of staff, and calculations about the number of staff required; the hours and days they would be required to work to perform certain services: in other words, a commensurate level of detail. In previous hearings many of these hourly rates and fees for various services were examined in detail during the hearings. In previous reasons, the Court has examined these calculations, as it needed to, in order to determine what fees for the provision of legal services should be approved.

128    In previous decisions I have explained why it is necessary that material in this proceeding, including around how much various firms and individuals are charging for the provision of services to group members, should remain publicly available. Shine has dealt with that in an appropriate way in terms of all the detailed information around the provision of its legal services. It has not submitted to the Court that its business model would collapse or be significantly disadvantaged by the Court’s requirement that its calculations for the provision of its legal services to the applicant and group members remain publicly available.

129    Most of the funder’s commission calculations have been before the Court and open, with very limited suppression orders.

130    The only exception to this, which is a limited one, is that suppression orders were granted over parts of certain of the funder’s documents containing estimates of the possible quantum of the overall claim in this proceeding, had it gone to trial. These orders were granted on the basis that, in the ordinary course, the passages suppressed would have been protected from admission into evidence pursuant to s 119 of the Evidence Act 1995 (Cth): see McDonald v Commonwealth of Australia (No 2) [2025] FCA 631 at [26]-[39].

131    At [36] of those reasons, I said that:

It would prejudice these interests of justice if lawyers and funders could not have some assurance that the core passages containing strategic forensic recommendations about a prospective proceeding, and frank assessments of prospects and potential risks of a proceeding, while disclosed to the Court for the purposes of the Court making its approval evaluation, are not disclosed to those with adverse interests (respondents, especially institutional respondents like the Commonwealth), nor to third parties. A limited form of protection – generally of the kind sought on this application – is necessary to ensure as full disclosure as possible to the Court of how the funding arrangements came about and how the risks said to justify the funding commission were assessed, while offering reasonable protection to communications given in confidence and in reasonable anticipation of hotly contested adversarial litigation.

132    Such considerations do not apply to the material over which suppression orders are sought by the present application. I do not accept the apprehensions in Ms Grimley’s affidavit on behalf of Deloitte are well-founded.

133    Deloitte’s tender is already in the public domain, on the Court’s file. That is the status quo. There is no prejudice to the administration of justice in retaining that status quo. Ms Grimley’s evidence goes no higher than her personal apprehensions. There is no evidence that the fact Deloitte’s tender is in the public domain has had any real or tangible effect on any of Deloitte’s tendering activities over the last year or more. That finding is strengthened by the fact that the tenders of Grant Thornton and McGrathNicol are also in the public domain, as part of the affidavit material available for third party inspection. In declining to make a suppression order, there is no different treatment of Deloitte by the Court; it has not been singled out. Rather, like the other tenderers, its tender has been treated with a level of transparency I consider appropriate for the provision of services in a court supervised class action proceeding of this kind.

134    As the applicant submitted, Shine’s request for tender identified that the purpose of seeking tenders was to put them before the Court. There is no merit in the submission that there should be some retrospective suppression of the material in Deloitte’s tender document.

135    The Court does not accept that no firms will come forward to perform these kinds of functions if the Court does not accede to the suppression order application. This was an implied thread running through Deloitte’s submissions. In substance it is not so different to some other submissions the Court has received in this case from the funder and from Shine – if the service providers’ claims as they make them are not fulfilled by court approval, groups such as the Aboriginal workers in this case will be left without the support of service providers to conduct class actions. I do not accept that is the case. The Court continues to place its trust in all these service providers being true to the representations they all make in their promotional material – that they are willing and able to provide services to disadvantaged groups because this is part of their vision and their mission in participating in achieving a more just society and assisting people to access the justice system. That they might make less profit, or little profit, in some of these ventures might be a consequence (the Court has no evidence and merely notes this possibility), but all these service providers operate otherwise in a wide range of commercial environments where there are no constraints, other than market forces, on their profit making.

136    By correspondence to my chambers of 11 November 2025, the Administrator requested that, if the Court was minded to grant the Administrator’s application for suppression orders, it also consider whether to grant suppression orders over the costs assessor’s reports annexed to the 11 November 2025 affidavit of Mr McCarthy referred to above. As the suppression application will be dismissed, it follows that no such orders will be made.

137    The reasoning I have set out above applies equally to the submission on behalf of Deloitte in respect of Ms Harris’ costs assessor reports.

Conclusion

138    The Court has made orders approving the increase in costs sought by Deloitte.

139    The suppression application is dismissed.

140    The recent practice of the Court in this proceeding has been to place material on the online file once affidavits are read, unless it is persuaded otherwise by the parties’ submissions. Nevertheless, there are real differences in terms of reach and ease of distribution between the usual third-party inspection processes and placing material on an online file. The Court’s orders today provide for a reasonable period of time in which Deloitte can apply to have only a redacted copy of Ms Kaye’s affidavit placed on the online file, although a full copy will remain available for third party inspection under the Court’s rules. The Court will consider any such application consistently with these reasons.

Associate:

Dated:    24 November 2025