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[2021] FCA 1354
Federal Court of Australia
2021-10-29
Mr P, White J
Original judgment source is linked above.
WHITE J: 1 On 29 October 2021, I made orders with respect to the notices to be given to the members of a class action pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). I said that I would publish reasons later. The following are those reasons. 2 By an interlocutory application filed on 7 October 2021, the applicants in this class action seek relief of four different kinds, namely: (a) leave to amend the Further Amended Originating Application (FAOA) and the Further Amended Statement of Claim (FASC), both of which were filed on 29 April 2021; (b) the Court's approval of the notices to be given to group members pursuant to ss 33X and 33Y of the FCA Act. The notices concern the commencement of the proceedings, opting out, and a proposed settlement of the proceedings; (c) orders for a timetable for steps in the opt out and settlement notice process; and (d) approval of the settlement reached between the applicants and the respondent. 3 This judgment concerns only the first three of these applications for relief.
Background 4 The first three applicants commenced the action on 22 July 2019. The fourth and fifth applicants were joined as applicants with effect from 29 April 2020. 5 The applicants and the group members are members of the Ngaanyatjarraku Community in the Shire of Ngaanyatjarraku in the Central Reserves Area of Western Australia. The eastern boundary of the Shire abuts the western boundaries of South Australia and the Northern Territory. There are 10 communities in the Shire of which Warburton is the largest. It is a remote community, being located 1,542 kms northeast of Perth, 750 kms northeast of Kalgoorlie, 560 kms northeast of Laverton and 1,050 kms southwest of Alice Springs. Approximately 40% of the group members reside in Warburton. 6 The Commonwealth admits that, according to the 2016 Census, the Shire had a population of 1,606 persons of whom 86% were Aboriginal and/or Torres Strait Islander. The majority of the residents are Ngaanyatjarraku People (60.7% speak Ngaanyatjarraku) but there are others from the Western Desert Cultural Bloc. The applicants' FASC alleges that the per capita income of residents in the Shire is the lowest on mainland Australia. The Commonwealth does not admit that allegation but does plead matters indicating that the Shire is an area of socio-economic disadvantage. In particular, it pleads that, in the 2016 Australian Bureau of Statistics Socio-economic Indexes for Local Government Areas in Australia, the Shire ranked in: (i) the second percentile in the Index of Relative Socio-economic Disadvantage; (ii) the third percentile in the Index of Relative Socio-economic Advantage and Disadvantage; (iii) the fourth percentile in the Index of Economic Resources; and (iv) the ninth percentile in the Index of Education and Occupation. 7 In the proceedings, the applicants allege that the Commonwealth discriminated against them and group members, in contravention of ss 9, 10 and 13 of the Racial Discrimination Act 1975 (Cth) (the RD Act), by requiring them to participate in the Community Development Program (CDP) in order to receive income support payments under the Social Security Act 1991 (Cth) (the SS Act). The discrimination alleged is said to be a consequence of the "mutual obligation requirements" imposed on NewStart Allowance recipients. Persons who do not comply with those requirements suffer penalties in the form of reduced payments of social security or the withdrawal of payments altogether. The applicants' claim in substance is that the mutual obligation requirements which oblige social security recipients to engage in minimum periods of work per day, per week and per year and to make a minimum number of applications for work and which were applied their case, were, in the period between 1 July 2015 and 23 May 2019, discriminatory. This was so because they were more onerous than those imposed on other recipients of NewStart Allowances having regard, in particular, to the remoteness of their communities, their low levels of education and literacy, and other aspects of their socio-economic status which made applications for, the obtaining of, and participation in, paid employment more difficult. 8 The applicants, and others, made complaints concerning the conduct of the Commonwealth to the Australian Human Rights Commission (the AHRC). The complaints were terminated by a delegate of the President of the AHRC. The applicants then commenced the present proceedings. 9 By way of relief, the applicants seek declarations with respect to the Commonwealth's alleged contraventions, an apology, the making of a public statement, injunctions and damages (including aggravated damages). 10 In October 2020, the parties agreed upon a private mediation of the issues in the proceedings. They engaged the Honourable Michael Barker QC and Ms Zita Antonios as co-mediators. The mediation took place over an extended period of time, in part because of the remoteness of the Ngaanyatjarraku Shire and in part because of limitations consequent upon the COVID-19 pandemic. At the case management hearing on 20 September 2021, the Court was informed that the mediation had concluded and that the parties were agreed upon an outcome for the proceedings. The Court then put in place a timetable for the filing by the applicants of applications for orders with respect to the notices under s 33X and with respect to the approval of the settlement. The applicants filed that application on 7 October 2021.
The application to amend 11 The applicants seek leave to amend the description of the group members in the FAOA and in the FASC, in the manner of the following mark ups: The group members to whom this proceeding relates are any persons of Aboriginal descent who were at any time (or from time to time) during the period from 1 July 2015 to 23 May 2019: (a) resident of the Shire of Ngaanyatjarraku; and (b) between the ages of 1822 and 5554 (inclusive); and (c) participating in the Community Development Program; and (d) assessed has having full time work capacity; and (e) a party to a Job Plan that contained a term pursuant to s 606(1) of the Social Security Act 1991 (Cth) as it applied for the period 1 July 2015 to 23 March 2019 (which was approved by the Secretary under s 606(2) of that Act), to the effect that the person: (i) during the period 1 July 2015 to 1 March 2019, complete in any week the number of hours in Work for the Dole and/or another approved activity specified below: A. 25 hours (if the person was aged 22 to 29 years), or B. any number of hours from 0 to 25 hours (if the person was aged 30 to 49 years), or C. any number of hours from 0 to 25 hours (if the person was aged 50 to 54 years), or (ii) during the period 1 March 2019 to 23 May 2019, complete in any week 20 hours in Work for the Dole and/or another approved activity; and (f) on full time Mutual Obligation Requirements without an exemption; and (g) on full time hours in Work for the Dole or another approved activity; and (h) in receipt of activity tested income support known as NewStart Allowance. (Emphasis in the original) 12 On their face, these amendments seem to involve, in part, a contraction of the class and, in other respects, an expansion of the class. The former is more significant presently. As was noted by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925, a limiting of the class before a settlement is capable, in some circumstances, of giving rise to: (a) a conflict of interest between those who are to benefit from the settlement and those who will be excluded, at [22]-[23]; and (b) unfairness to those excluded, even if they remain free to pursue their individual claims. That is because of the practical advantages in pursuing small claims as part of a larger class action, at [38]-[39]. 13 However, the need for concern on account of these prospects is diminished in the present case by the following circumstances. First, the increase in the bottom end of the age range from 18 years to 22 years will not, having regard to the eligibility conditions for the NewStart Allowance, produce any practical disadvantage. Section 593(1)(g) of the SS Act, as in force throughout the claim period, required that persons had to be at least 22 years of age in order to qualify for the NewStart Allowance. This means that the represented class cannot, despite the present form of the pleading, include persons aged between 18 and 22 years. Those who did turn 22 years within the claim period will be still be within the class. 14 The position with respect to the reduction of the upper end of the age range from 55 years to 54 years is not so clear. The parties contend that, despite the group description, the applicants had in effect limited the class to those to a maximum age of 54 years. This was so because the fifth applicant was said, in the FASC, to represent those in "Cohort 3" and Annexure C to the FASC defines those in Cohort 3 to those aged between 49 and 54 years of age. 15 However, this does not, on my understanding of the pleading, mean that a claim was not pursued in respect of those up to the maximum age of 55 years. Such a claim was still made, even if it was not pleaded out. 16 I am satisfied nevertheless that this reduction in the age range is unlikely to result in practical disadvantage. In the first place, it seems likely that the number of those who have reached the age of 54 years but not the age of 55 years, is likely to small. Secondly, the settlement of the action for which the parties seek the Court's approval does not, and will not, involve the payment of monies to any individual in the Ngaanyatjarraku Community. Instead, putting to one side a payment by the Commonwealth with respect to costs, the only monetary amount to be paid pursuant to the settlement is a grant to the Ngaanyatjarraku Council (Aboriginal Corporation) (NC (AC)) with the intention that this be applied for the purposes of the Ngaanyatjarraku Community generally. Thirdly, any person in the age range who will be excluded by the amendment remains free to bring his or her own claim. 17 The combined effect of the deletion of subparas (d), (f) and (g) and the inclusions in subpara (e) is to broaden slightly the class of group members, as the group will now include those who are required to work a number of hours between zero and 25 in a given week. 18 Accordingly, I am satisfied that it is appropriate to grant the applicants leave to amend both the FAOA and FASC.
The approval of the notices 19 Section 33X(1)(a) of the FCA Act requires notice to be given to group members of the commencement of the proceeding and the right of group members to opt out of the proceeding before a specified date, being the date fixed under s 33J(1). Section 33X(4) provides that, unless the Court is satisfied that it is just to do so, it should not approve the settlement of an action under s 33V unless notice has been given of the proposed settlement to group members. 20 Section 33Y contains provisions concerning the giving of notices pursuant to s 33X to group members. It provides: 33Y Notices - ancillary provisions (1) This section is concerned with notices under section 33X. (2) The form and content of a notice must be as approved by the Court. (3) The Court must, by order, specify: (a) who is to give the notice; and (b) the way in which the notice is to be given; and the order may include provision: (c) directing a party to provide information relevant to the giving of the notice; and (d) relating to the costs of notice. (4) An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means. (5) The Court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so. (6) A notice that concerns a matter for which the Court's leave or approval is required must specify the period within which a group member or other person may apply to the Court, or take some other step, in relation to the matter. (7) A notice that includes or concerns conditions must specify the conditions and the period, if any, for compliance. (8) The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding. 21 The notices given pursuant to ss 33X and 33Y enable class members to make informed decisions concerning their rights: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at [88]. Clarity and simplicity are essential: King v GIO Australia Holdings Ltd [2001] FCA 270. That is to say, the notices should be both accurate and expressed in as plain and simple language as is consistent with the information sought to be communicated: Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 6) [2011] FCA 277 at [9]. 22 The challenges in drafting appropriate notices in the present case are particularly acute having regard to the remoteness of the Ngaanyatjarraku Community; the socio-economic disadvantage of its members; the lower than average levels of education and literacy; and widespread reliance on the spoken (rather than written) word for the communication of information. The majority of the Ngaanyatjarraku people do not have access to the internet and, when internet is available, the service is intermittent. 23 In order to address these circumstances, the parties have drafted notices in plain English and, in turn, terms appropriate for the claim group membership. They also seek to make use of the means by which information is commonly made available in Ngaanyatjarraku Community, including the means by which the members of the Community do in practice seek information and advice about matters of concern. 24 The notices which the Court is asked to approve differ in some respects from the notices typically approved by the Court in Pt 4A actions. 25 The notice of commencement of the proceeding is a one and a half page document expressed in plain English. As indicated, it has been drafted by the parties in a manner intended to convey clearly to members of the Ngaanyatjarraku Community the commencement of the litigation, the mediation, the settlement and the application to the Court for approval of the settlement. 26 The opt out and settlement notices have been drafted in the same way and with the same objects in mind. 27 The elements of the scheme of distribution of notices and for the provision of information about their content are set out below. The applicants will: (a) cause to be delivered to each of the 10 communities a copy of the notices addressed to each group member whose postal address is in that community in the expectation that the Community Centre staff in each community will, in accordance with usual practice, place the notices in the pigeon holes in the Community Centre from which group members collect their mail; (b) cause copies of the FAOA, the pleadings in the action and the Deed of Settlement to be available in hard copy form at each Community Centre for inspection by the group members; (c) nominate in the notices two Head Community Advisors who will be able explain or answer questions about the notices and the action which may be taken in relation to them; (d) provide the means of access to a pro bono lawyer who can explain and/or answer questions about the notices and the action which may be taken pursuant to them; (e) enable the Head Community Advisors and Community Advisors within each community to provide to the group members copies of the same documents on request; and (f) cause an informative poster to be placed at locations in each of the 10 communities in positions in which they are most likely to come to the attention of the group members in those communities. 28 These matters are explained in an appropriate way in the notice and accompanying documents. 29 The form of each notice proposed by the parties is appropriate, having regard to the circumstances set out above. I am satisfied that it is appropriate for the Court, acting pursuant to s 33Y of the FCA Act, to approve the form and content of those notices. 30 Not all of the claim group members are residing presently in the Shire. The arrangements for the provision of the notices to them must therefore be different from those in respect of those who are resident in one or other of the 10 communities in the Shire. The orders provide for these circumstances.
A timetable for steps in the opt out and settlement notice process 31 It is not necessary to detail in these reasons the timetable for the various steps proposed by the applicants. It has been the subject of discussion between the parties and the Court at case management hearings on 20 and 27 October 2021 and the parties have made adjustments to take account of concerns raised by the Court and of the practicalities involved in the delivery of the notices to the 10 communities, given their remoteness.
The approval of the settlement 32 The consideration of this part of the applicants' interlocutory application is adjourned to a later hearing. 33 These are my reasons for the orders made on 29 October 2021. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
SCHEDULE OF PARTIES SAD 154 of 2019 Applicants Fourth Applicant: JANIKA HUNT Fifth Applicant: JESSIE WEST
Dawson
Commonwealth of Australia