Kamasaee v Commonwealth of Australia and Ors (Approval of settlement)
[2017] VSC 537
•6 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06770
| MAJID KARAMI KAMASAEE | Plaintiff |
| v | |
| THE COMMONWEALTH OF AUSTRALIA & ORS (in accordance with the attached schedule) | Defendants and Third Parties |
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JUDGE: | Macaulay J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September 2017 |
DATE OF JUDGMENT: | 6 September 2017 |
CASE MAY BE CITED AS: | Kamasaee v Commonwealth of Australia & Ors (Approval of settlement) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 537 First revision: 3 November 2017 |
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PRACTICE AND PROCEDURE — Group Proceeding — Application for approval of settlement of group proceeding — Relevant considerations — Whether settlement fair and reasonable and in the interests of group members as a whole — Approval granted — Supreme Court Act 1986 (Vic), s 33V, Part 4A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F K Forsyth Ms M Szydzik Ms R V Howe | Slater & Gordon Lawyers |
| For the First Defendant | Mr C Blanden QC Mr R Kumar Mr C M McDermott | Australian Government Solicitor |
| For the Second Defendant | Mr G P Harris QC Mr T P Warner | Foster Nicholson Lawyers |
| For the Third Defendant | Mr J Delany QC Ms L M Nichols | Corrs Chambers Westgarth |
| For the Second Third Party | Mr K Loxley | Herbert Smith Freehills |
| Amicus Curiae | Mr M D Rush | |
| Independent Law Firm | Ms K Brazenor | Holding Redlich |
HIS HONOUR:
Introduction
The plaintiff, Majid Kamasaee, has applied pursuant to s 33V of the Supreme Court Act 1986 (Vic) (the Act) for approval of a proposed settlement of a group proceeding. Mr Kamasaee claims damages for himself and group members for consequences arising out of the transfer and subsequent confinement of asylum seekers at Manus Island ‘Regional Processing Centre’ (Centre) located at the Lombrum Naval Base on Los Negros Island, Manus Provence, Papua New Guinea (PNG) between November 2012 and May 2016. The claim is made against the Commonwealth of Australia (Commonwealth), and its contracted service providers, G4S Australia (G4S), and Transfield Services (Australia) Pty Ltd (now called Broadspectrum Services Pty Ltd) (Broadspectrum). Broadspectrum joined Wilson Protective Services PNG Pty Ltd (Wilson), a security services subcontractor, as a third party.[1]
[1]By consent, the first third party, International Health and Medical Services Pty Ltd, was removed as a party to the proceeding by orders made by Justice McDonald on 5 April 2017.
The parties to the proceeding reached a settlement by deed dated 7 July 2017 following a process of mediation over various dates throughout May, June and July 2017. Section 33V of the Act provides that a group proceeding may not be settled or discontinued without the approval of the Court.
I intend to approve the settlement subject to certain orders that I will describe including orders with respect to the distribution of the settlement money. My reasons for approving the settlement will be expressed relatively briefly. That is because of a combination of factors: chiefly, the urgency attending the approval process. Notwithstanding the relative brevity of these reasons, the parties and any other interested person hearing these reasons can be assured that I have read and digested the substantial body of material which has been filed. In many respects the detail and sophistication of those submissions and the material supporting them has been of such a quality that I have been able to reach firm conclusions quite quickly yet with a high degree of assurance that all relevant matters have been properly canvassed.
Settlement and application for approval
By writ dated 19 December 2014, Mr Kamasaee commenced this group proceeding on behalf of himself and persons who were located at the Centre. Two categories of claim have been advanced by Mr Kamasaee: a claim in negligence, and a claim of false imprisonment. His allegations are detailed in his fourth amended statement of claim dated 7 April 2017. Defences, counter claims, third party notices and replies have been filed in the proceeding. The trial was scheduled to commence at the end of May 2017 but, as I have stated, the proceeding was resolved by the parties on terms contained in heads of agreement dated 30 May 2017 and finally a deed of settlement dated 7 July 2017 (the Deed).
The parties agreed to resolve the matter on terms including that there be:
(a) payment of AUD $70 million to group members, subject to a rateable reduction if the number of group members participating in the settlement is fewer than 1000; and
(b) additional payment of the plaintiff’s costs including costs of administration of the Settlement Distribution Scheme (SDS).
On 17 July 2017 the Court gave directions in advance of the settlement approval hearing scheduled for 4 September 2017. Those directions included orders (17 July Orders):
(a) pursuant to ss 33X and 33Y of the Act approving notices of the proposed settlement to be sent to group members being a ‘Generic Notice’ and an ‘Individualised Notice’;
(b) pursuant to s 33Y of the Act directing the manner by which notices were to be published to group members and other orders facilitating the dissemination of those notices;
(c) providing a time by which objections to the proposed settlement approval were to be lodged and for the appointment of an amicus curiae—that is, an independent lawyer to assist the Court in respect of issues raised by those objections;
(d) making provision for those who wished to make application pursuant to s 33J(3) of the Act for leave to extend time to opt out of the proceeding including a date by which necessary steps were to be taken and, subsequently, the appointment of an independent law firm to represent any such applicants;
(e) pursuant to ss 33ZF and 33ZG providing a date by which those who wished to participate in the distribution of funds from the settlement were to register their claim; and, importantly,
(f) that any group member who neither registered their wish to participate in the claim nor were deemed to have done so pursuant to other orders, not be entitled to receive any distribution from the settlement sum.
The principles that govern an application for approval of settlement of a group proceeding are well established. I have been favoured with a detailed enumeration of those principles by all parties; they are not controversial. Centrally, the question for the Court is whether the proposed settlement is fair and reasonable and in the interests of the group members as a whole.[2] The Court approaches this task by asking the following two ‘critical questions’:[3]
(a) First, whether the proposed settlement is fair and reasonable as between the parties, having regard to the claims of the group members; and
(b) Second, whether the proposed settlement is in the interest of the group members as a whole and not just in the interests of the plaintiff and the defendants.
[2]Bolitho v Banksia Securities Limited (Receivers and Managers Appointed) (In Liquidation) [2017] VSC 148 (‘Bolitho’) at [44] (Robson J) citing ACCC v Chats House Investments Pty Ltd (1996) 71 FCR 250 (‘Chats House’) at 258 (Branson J); Matthews v AusNet Electricity Services Pty Ltd & Ors [2014] VSC 663 (‘Matthews’) at [34] (Osborn JA); Wheelahan v City of Casey [2011] VSC 215 (‘Wheelahan’) at [57] (Emerton J) citing Chats House at 258 (Branson J).
[3] Downie v Spiral Foods Pty Ltd [2015] VSC 190 at [45] (J Forrest J). See also Supreme Court of Victoria
Practice Note SC Gen 10 of 2015 – Conduct of Group Proceedings (Class Actions), 30 January 2017,[13.1]; Bolitho at [55] (Robson J).
There are numerous subsidiary principles which have been referred to at length in the parties’ submissions but I do not intend to repeat them. It is sufficient to say that I have read and considered the submissions and agree that they accurately set out the principles which I am to apply.
Considerations typically relevant to the assessment of an application for the approval of a settlement are:[4]
[4]Williams v FAI(No.4) (2000) 180 ALR 459 at 465 [19]; [2000] FCA 1925 (Goldberg J); Matthews at [41]-[43] (Osborn JA); Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [65]-[66] (Jacobson J); Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) [2013] FCA 1350 at [47] (Jacobson J); Wheelahan at [62]; Mercieca v SPI Electricity Pty Ltd [2012] VSC 204 at [32] (Emerton J).
(a) the complexity and duration of the litigation;
(b) the reaction of the class to the settlement;
(c) the stage of the proceeding;
(d) the risks of establishing liability;
(e) the risks of establishing damages;
(f) the risks of maintaining a class action;
(g) the ability of the defendants to withstand a greater judgment;
(h) the range of reasonableness of the settlement in the light of the best recovery; and
(i) the range of reasonableness of the settlement in the light of all the attendant risks of litigation.
The parties in their submissions assiduously directed themselves to these and other factors to assist me in reaching a conclusion on this application. I have been very greatly assisted by the evidence and the submissions.
It is helpful to say something briefly about the two aspects of Mr Kamasaee’s claim. When the proceeding commenced on 19 December 2014 the claim was confined to an allegation of negligence causing personal injury (including but not limited to psychological or psychiatric injury) against the Commonwealth, G4S and Broadspectrum. The personal injuries were said to arise out of Mr Kamasaee’s and group members’ detention at the Centre in the period 21 November 2012 to 19 December 2014 (i.e. the negligence claim period).
On 26 April 2016, the Supreme Court of Papua New Guinea ruled that the transfer to and detention of asylum seekers at the Centre was in breach of their rights to personal liberty guaranteed by the Constitution of the Independent State of Papua New Guinea. Following that decision, Mr Kamasaee amended his statement of claim to add a claim to seek damages for false imprisonment on behalf of all persons who at any time during the period 21 November 2012 to 12 May 2016 (i.e. the false imprisonment claim period) were confined at the Centre by or on behalf of the Commonwealth, G4S or Broadspectrum.
It follows that all group members detained at the Centre between 21 November 2012 to 12 May 2016 (or any part thereof) were false imprisonment group members. A subset of those detainees, namely those who also suffered injuries arising out of detention at the Centre in the shorter period, 21 November 2012 to 19 December 2014, were negligence claim group members.
At the time I made the 17 July Orders there were thought to be 1905 persons who comprised the entire group member class. Some remained at the Centre, others were elsewhere in PNG. Some were within Australia and others had returned to their country of origin or another country. Movement within these categories was and still remains somewhat fluid. Group members were composed of persons from some 18 countries and were persons for whom it was likely that English was not their first language, if they spoke it all. Some group members (now confirmed to be 19) were minors. Several (now confirmed to be five) have died since the commencement of the action.
The notices outlined the fact of the settlement, its relevant terms, how it would affect group members if approved and the options available to group members. They were published generically through a wide range of media and means. In addition to the generic notices, the orders I made directed the parties to provide individualised notices. They contained the same information as the generic notices but also added individualised estimates of the range of money the recipient could expect to receive based on varying assumptions. Those assumptions included variations in the number of group members who may participate in the distribution and the impact of those variations on the estimated false imprisonment damages and injury damages (physical and psychiatric) the group member could expect to receive. Those estimates were calculated upon the method of assessment which had been designed by the plaintiff’s lawyers and set out in the SDS.
I will come to the measure of success of the distribution of those individualised notices shortly.
But, accompanying the notices were four forms providing each group member with a means to select options, namely:
(a) Form A, to register a claim to receive compensation from the proposed settlement;
(b) Form B, to object to the proposed settlement;
(c) Form C, to register a claim but also request that further or corrected information be considered for the purposes of the distribution estimate; and
(d) Form D, to apply to the Court for an extension of time to opt out of the proceeding.
As mentioned, an independent law firm was appointed (i.e. Holding Redlich) to make an application to the Court on behalf of those persons who elected to seek an extension of time within which to opt out of the proceeding. Additionally, Mr M.D. Rush, barrister, was appointed (with the consultation of the parties) to act as amicus curiae. In doing so, Mr Rush was tasked to consider and be informed by the contents of any objections to the proposed settlement lodged by any group member for the purpose of making submissions to the Court concerning the proposed settlement. Specifically, however, he was not to act for or represent any individual group member in connection with the application (whether in relation to advancing any group member’s grounds for objecting or otherwise).
Pursuant to the 17 July Orders the parties to the proceeding, Mr Rush and the independent law firm filed affidavits, opinions and/or submissions (both open and confidential). A full list of all the material available to me from all parties for the approval application is annexed to these reasons.[5]
[5]See Annexure A.
An oral hearing of the approval application was heard two days ago, on Monday 4 September 2017. At that hearing the Court was given the most up to date information then to hand concerning the number of individual notices that had been distributed to group members, the number of group members to whom notices had not been distributed, the number of persons who had registered to claim compensation, the number (and identity) of persons who had applied for an extension of time in which to opt out of the proceeding, and the number of persons who had lodged objections (with or without also registering a claim should settlement be approved).
In summary, even by 4 September 2017, the response to the notices and the level of engagement was strikingly successful in my view. That conclusion is drawn from the following figures current at the date of the approval hearing:
(a) the total class of group members was 1923 (after I reinstated 18 who had previously opted out of the proceeding but wished to rejoin);
(b) the number to whom notices had been delivered was 1708, which constituted 89% of the group;
(c) of the 215 to whom notices had not been delivered, 38 were within Australia/PNG and 177 were overseas;
(d) the Commonwealth had recently supplied the plaintiff’s solicitors with alternative contact details for 115 of the 177 persons overseas who had not yet been delivered a notice and, of those 115, emergency contact details for 111;
(e) the number registered to participate in the settlement was 1383, which constituted 72% of the group;
(f) the number who had registered and requested the consideration of further information was 271;
(g) the number who had maintained an application to extend time to opt out was 56; and
(h) the number who had objected to the settlement was 163 (of whom 145 had also registered a claim should the settlement be approved).
Every one of the objections to settlement has been produced to the Court and is the subject of helpful analyses by the parties (including, in particular, Mr Rush but also by the plaintiff). Those analyses have been provided in both narrative and tabular form. I have had the benefit of detailed written submissions both from the plaintiff and Mr Rush which collect and explain the various grounds of objection which are represented in the total group of objections and which address, one by one, those arguments. Helpfully, Mr Rush has been able to advance those arguments, independently, from the standpoint of the objectors. Equally helpfully, the plaintiff’s counsel have acknowledged the force of some of those objections but have also addressed answering arguments to them.
During the course of the hearing modifications were suggested to the proposed minutes of orders prepared by the plaintiff and the independent law firm and to the terms of the settlement distribution scheme itself, based upon arguments that were put both orally and in writing and from observations emerging from my own consideration of the materials. Responding to arguments and those suggestions, the plaintiff prepared a revised minute of order (incorporating the independent law firm’s proposed orders) and some revisions to the SDS for my consideration. Those documents were distributed to the other parties, Mr Rush and the independent law firm, and I understand that all agree the revisions faithfully pick up the suggestions made.
I now turn to consider the two critical questions identified earlier.
Is the settlement fair and reasonable as between the parties?
In my opinion this proceeding is without doubt one of considerable complexity, both factually and legally. It was a case that, had it commenced in May 2017, would likely have still been running at this point and continued until close to the end of 2017. Beyond that, after a lengthy and complex trial it would be expected that some time would elapse before the trial judge could deliver a decision. After that, given the nature of some of the legal propositions involved in both the negligence case and the false imprisonment case, appeals could have been expected by whoever lost, quite possibly to the High Court of Australia. Putting aside the possibility of a retrial, the time by which a final outcome would have been produced was to be measured in many months if not years.
The logistical problems that arise for locating and distributing settlement monies (if successful) to up to 1900 group members scattered around the world are obvious. The uncertain burden of the additional costs that would be incurred, and the value of a “certain sum now” as opposed to an “uncertain amount later”, are factors which have to be given serious weight. These are all matters to be taken into account before coming to the particular liability risks inherent in the plaintiff’s case.
I will not be discussing the liability risks at any length save for identifying them and observing that, collectively, they represent sound reasons for accepting and approving a compromise for a sum less than the highest amount the group members could reasonably expect to receive had they succeeded on all issues — even a markedly lesser sum.
In my view the liability risks included the following:
(a) the case was to be determined according to the law of PNG. This proposition was not in doubt. But, the relevant law in a number of respects was not clear and this uncertainty had implications for the plaintiff on his chances of success;
(b) there were risks on liability in negligence. In my view they existed at each level: duty of care, standard of care, breach of that standard and causation of loss;
(c) there were risks on liability in false imprisonment. Many of these arose from legal issues not the least of which was the need to refute the defendants’ argument that the Centre was controlled by the government of PNG — but also whether there was a valid defence if group members could have returned to their country of origin;
(d) there were risks associated with the defence of ‘act of state’ as pleaded by the defendants;
(e) there was a risk of low damages being awarded even if the plaintiff and group members were successful on liability given that PNG law most likely also governed the damages awards;
(f) allied to the above, there was a risk that any damages for false imprisonment may be dramatically reduced if it were found that the plaintiff and group members were only entitled to nominal damages;
(g) there were risks for the plaintiff’s claim personally;
(h) even if the plaintiff was successful, individual group members would still have to prove all the issues arising for their own claims. Importantly, they would have to identify breaches of duty that were relevant to their own experiences and a direct causal link with any harm suffered; and
(i) there were some risks associated with the overlap of other existing proceedings and the potential that damages awards in this proceeding might be thereby reduced.
I am keenly aware that for each of those risks there are arguments and counterarguments going each way, as set out in the confidential opinions and submissions. The parties laid out those arguments admirably and counsel have given candid opinions about prospects. I am comfortably satisfied that although an arguable path home existed for the plaintiff in many of the risk areas he (and group members) faced, the collective weight of risks — which were real and not merely theoretical — justified a marked discount from the highest award the plaintiff and group members might have been able to achieve, had all gone their way at trial, in order to secure a fair and reasonable compromise and avoid the prospect of loss or a significantly inferior outcome.
I was favoured by a number of different assessments of the best outcome the plaintiff and group members could reasonably hope to achieve. These assessments created a range which I think can be taken to represent a reliable ‘ball park’. That is to say, they did not represent polar extremes, but reasonable variations of outcomes based upon explicably different assumptions. Because of that I was able to form a reasonable view of the real prospects for the plaintiff and group members of a best outcome. Without disclosing those views (as they were expressed confidentially) I am comfortably satisfied that the figure of $70 million to be distributed (without deduction for costs) amongst participating group members is a fair and reasonable sum. I would go so far as to say that my degree of satisfaction is not merely marginal but is reached with a strong degree of conviction.
That strong degree of conviction also feeds into my views about the fairness and reasonableness of the proposed settlement as between group members as I will come to shortly. It has a flow-on effect because the attractiveness of the overall sum results in a distribution to individual group members (on the formulae set out in the SDS) at a level which answers some of the complaints about the deficiencies of the somewhat ‘rule of thumb’ distribution methodology. That is, the complaint that certain individuals might have done better if a more individualised analysis of their circumstances was to occur is in part ameliorated by the fact that the starting fund, from which their entitlement is to be taken, is relatively generous having regard to risk.
I should say something briefly about costs. Often it is the case that the settlement offer is ‘all in’ meaning that the legal costs are to be deducted before distribution is made to the plaintiff and group members. Here the position is different. A separate, identifiable sum of money (AUD $20 million) was agreed between the parties for the plaintiff’s lawyers’ costs. In fact, expert opinion from a costs consultant has assessed the actual costs at just under that figure; at $19,880,955.83. On top of that, the costs of administration of the settlement scheme are also to be borne by the defendants separately. The effect of this is that the $70 million is ‘clear money’ to be distributed to the plaintiff and group members.
The history of offers between the parties and the sequence of events at the mediation, all of which has been explained to me confidentially, reassures me that the sum agreed to be paid to the group members has been reached independently of the consideration of costs. The calculation of that sum has been addressed on its own merits and justified on its own merits. Incidentally, the amount to be paid for the plaintiff’s lawyers for the administration of the SDS is subject to scrutiny by the Court, through processes provided under the SDS, but that is not a matter which needs to intrude upon an assessment of the fairness and reasonableness of the sum allocated for distribution amongst group members.
A modest sum of $10,000 is allowed to Mr Kamasaee to compensate him for his time and cost in instructing lawyers on behalf of himself and the group. It is appropriate in principle and in amount.
In conclusion I am satisfied that the settlement is fair and reasonable as between the parties.
Is the settlement fair and reasonable as between the group members?
Earlier I referred to the SDS as adopting something of a ‘rule of thumb’ methodology. I do not use that expression critically. It describes a deliberate design choice which I am satisfied best suits the rather unique circumstances of this group proceeding. Without attempting to summarise the whole of its terms, relevantly, the SDS has the following features:
(a) it allocates to each participating group member a pro rata share of the $70 million, represented by that group member’s allocation of ‘points’ divided by the total number of points allocated to all participating group members;
(b) a group member’s ‘points’ are assessed and allocated for each type of claim – that is, the false imprisonment claim and the negligence claim;
(c) all group members will be allocated points for the false imprisonment claim, but only those group members whose documented medical and like records evidence a physical and/or psychological injury experienced at the Centre will be entitled to negligence claim points;
(d) the assessment of negligence claim points will be made by reference to categories of physical and psychological injury, defined by descriptive integers designed by the plaintiff’s lawyers, each group member being assigned the highest level of injury by reference to those integers;
(e) the injury assessment will be conducted ‘on the papers’ by experienced personal injury lawyers with Slater & Gordon, the plaintiff’s solicitors, and will not be made through any interview process or by independent medical examination and report;
(f) two processes of review are available; one informal through the provision of corrective information using Form C; the other by a more formal review request – both reviews are conducted ‘on the papers’;
(g) there will be no requirement for any group member to establish that the particular injury condition was actually caused by their detention – the fact that it was recorded as being experienced during detention (from the medical records) will suffice for eligibility for points;
(h) it is deliberately weighted towards false imprisonment assessment – this choice reflects conclusions drawn from careful analysis of PNG cases on both false imprisonment and injury claims; and
(i) as has featured in other schemes previously approved by courts for distribution of settlement sums in group proceedings, a senior lawyer with the plaintiff’s law firm is appointed as Administrator of the SDS (Scheme Administrator) and granted powers, discretions and immunities designed to make the SDS suitably flexible and workable – provision is made for the Scheme Administrator, as well as for the plaintiff and group members, to request the Court to supervise the administration of any aspect of the SDS.
In a careful submission, Mr Rush addressed himself to a number of potential objections to this style of assessment. He categorised the arguments as philosophical, methodological and operational. The philosophical objection highlighted the consequence of the weighting of false imprisonment claims against injury claims. He illustrated the argument by reference to specific experiences of two particular objectors: one experiencing significant injuries but only being present at the Centre for a relatively short period of time versus another with no injuries but having stayed at the Centre for a lengthy period of time. The second would receive about twice the sum of the first. However, that consequence is neither arbitrary nor accidental. It is the product of a design which I am satisfied has been well thought through and, regrettable though it may appear for certain individuals concerned, the outcome reflects, in broad terms, the relative weighting that successful injury claims would bear to successful false imprisonment claims for the entire group.
The methodological objection focused on the fact that assessments were to be made ‘on the papers’. In some individual cases the medical records will be incomplete or possibly even inaccurate. To some extent this risk or danger is addressed by individual group members having the opportunity to correct inaccurate or incomplete information by communicating with the plaintiff’s solicitors once their individualised assessments are received and the basis for their assessments are outlined to them. But, I accept that inevitably there will be shortcomings for a number of persons. In my view these deficiencies are justified by the benefit to the group as a whole achieved by the efficiencies of distribution through an ‘on the papers’ assessment; that efficiency being of high value given the imminent disbursement of group members and the overall risk posed to the group as a whole of distributions failing to reach their intended recipients.
The last objection, called operational, focused on risks that some group members may not be able to provide bank account details so as to receive their payments. I am satisfied that the plaintiff’s solicitors are cognisant of this problem and will address it as far as reasonably possible. Modification was made to clause 8.15 of the SDS and other measures have been adverted to by the plaintiff’s solicitors to ameliorate that problem.
The speed with which the approval process, including steps for notification and requirements for response, throws up the risk that some people will not be contacted in time to be able to register. Some people will not be able to get advice that they may wish to receive. Some may need more time to consider their positions. Most if not all suffer language and educational barriers that pose problems for comprehending their choices. The notification documents and forms provided, whilst made as simple as reasonably possible, are still complicated and give rise to the risks of misunderstanding; evidence already exists that some people have misunderstood their choices. It is to be noted that steps continue to be taken to address so far as possible these potential disadvantages.
All of these considerations might ordinarily combine to require a slowing down of the process. However, all parties have agreed that the process is attended by a degree of urgency. That is because as things presently stand the Centre is due to be vacated by 31 October 2017 (now less than two months away). Further, before any payments can commence to be made the registration process must be completed and the time for any appeal from the approval must have elapsed.
Taking all things into account, I accept that the need for urgency is well founded. But I have nevertheless required the deadline for registration to be moved from 25 September (as first proposed) to 13 October 2017. This measure has in large part been influenced by the fact that there is still 215 persons to whom notices have not been distributed and more time needs to be given to allow certain alternative contact details (recently provided) to be tried to see if that number of uncontacted persons can be reduced. Additionally, I have required a modification to the SDS (clause 8.4A) which, together with additional notice requirements in paragraphs 15 and 16 of the orders, cater for that further effort toward notification.
Paragraph 17 of the orders now provides for a further hearing not before Wednesday 18 October 2017 for me to decide whether any further modification of the settlement distribution scheme should be made to provide the chance for those who remain uncontacted by that date to share in the settlement distribution.
Ultimately, other than the 56 named persons who I will permit to make application to opt out of the proceeding I do not intend to extend the time to apply for such leave to any other group members, even to those who have not yet been sent individualised notices of settlement. I am well aware that the effect of this will be to bind any remaining ‘uncontacted persons’ by the settlement, and that their rights to bring any individual proceeding in respect of the same subject matter of the claim will be foreclosed.
In all the circumstances, I consider that this outcome is justified having regard to the interests of the group members as a whole. I reach that conclusion bearing in mind that there still remains the opportunity for those who will be contacted by 13 October 2017 to participate in the settlement if they wish. And and even beyond that time, depending upon any further orders I may make, there may still be a further chance of participation in some component of the fund. But even if there is a cohort of persons who receive no money and whose rights are nevertheless foreclosed I consider the risk of any unfairness to be sufficiently modest to be outweighed by the countervailing benefits (or the avoidance of disadvantage) to the group members as a whole.
Finally, in respect of those 19 members of the group who are minors, they are deemed to have elected to participate in the distribution and will receive their allocation of the settlement sum. Provision is made in the settlement distribution scheme for the appointment of personal representatives and the supervision of distributions made to them by an associate judge. I am satisfied that these procedures are appropriate.
Conclusion
I will make all of the orders set out in the minute of orders sent to the Court on 5 September 2017 and approved by me on 6 September 2017 which, in turn, annexe the settlement distribution scheme (as finally revised and approved by me).
Annexure A
Affidavit of Anna Inglis Ross dated 22 June 2017
Affidavit of Andrew John Baker dated 22 June 2017
Plaintiff’s Summons dated 11 July 2017
Affidavit of Andrew John Baker dated 12 July 2017
Affidavit of Andrew John Baker (Confidential) dated 13 July 2017
Affidavit of Marianne Peterswald dated 17 July 2017
Affidavit of Andrew John Baker dated 17 July 2017
Affidavit of Laura Winkler dated 22 August 2017
Affidavit of Catherine Mary Dealehr (Confidential) dated 25 August 2017
10.Affidavit of Andrew John Baker (Confidential) dated 25 August 2017
11.Affidavit of Andrew John Baker dated 25 August 2017
12.Plaintiff’s Amended Summons filed 30 August 2017
13.Plaintiff’s written submissions dated 30 August 2017
14.Affidavit of Andrew John Baker dated 30 August 2017
15.First Defendant’s Confidential Opinion dated 30 August 2017
16.Third Defendant’s Confidential Opinion dated 30 August 2017
17.Second Defendant’s written submissions dated 31 August 2017
18.Written Outline of Submissions of the Amicus Curiae dated 31 August 2017
19.Affidavit of Howard Roger Rapke dated 1 September 2017
20.Outline of Written Submission filed in respect of the Application to Extend Time to Opt Out dated 1 September 2017
21.Affidavit of Laura Winkler dated 1 September 2017
22.Affidavit of Andrew John Baker dated 4 September 2017
23.Plaintiff’s Amended Submissions dated 4 September 2017
24.Updated Written Outline of Submissions of the Amicus Curiae dated 4 September 2017
25.Consolidated Objections and Applications for Extension of Opt Out (various dates)
SCHEDULE OF PARTIES
No. S CI 2014 06770 BETWEEN:
MAJID KARAMI KAMASAEE Plaintiff - and - THE COMMONWEALTH OF AUSTRALIA First named Defendant G4S AUSTRALIA PTY LTD Second named Defendant BROADSPECTRUM (AUSTRALIA) PTY LTD
INTERNATIONAL HEALTH AND MEDICAL
SERVICES PTY LTDThird named Defendant
First Third Party
WILSON PROTECTIVE SERVICES PNG LTD Second Third Party
4
0