D CONSIDERATION
17 The contentions advanced on behalf of the respondents ought to be accepted for the following reasons.
18 First, it is tolerably plain that the administrators are the "notifiable person" within the meaning of the HOSC Act because the group members' claims to participate in the settlement fund are made against them. This is because in order to determine the "notifiable person", one must first identify the "claim for compensation" to which that status of notifiable person relates. Having identified the "claim for compensation" one then considers "against whom the claim is made" and then (if applicable) that person's (a) insurance; or (b) membership of a representative organisation (HOSC Act, s 3(a) and 3(b)).
19 Secondly, as explained above, the effect of the settlement approval orders is that the previous "claims for compensation" have now been substituted for a right to participate in the settlement fund. As I said in Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885; (2020) 385 ALR 625 (at 629-630 [17]):
Upon approval of a settlement the underlying claims of group members generally merge in the settlement, and they receive substituted rights to receive that for which the settlement approved under s 33V(1) provides, or which the Court otherwise provides.
20 Thirdly, and relatedly, the persons against whom the current claims are made must be the administrators. Under the HOSC Act a "claim" is defined as "a claim in writing" (see above (at [8])). Further, the respective schemes support the respondents' construction because the administrators, among other things: (1) determine eligibility of group members; (2) assess and determine "claims"; (3) are subject to a right of review should a group member not agree with a determination of their claim; and (4) subject to the Court's approval, control the Settlement Fund against which the Court has given the group members rights in substitution of their original claims.
21 Fourthly, to the extent that it matters, there are other contextual factors which favour the conclusion that the administrators are the "notifiable person" under the HOSC Act. The "overarching purpose" of a settlement distribution scheme is to "maximise efficiency and minimise cost to group members". Conversely, settlement distribution schemes can become cumbrous. Concluding the administrators are the notifiable person under the HOSC Act, which streamlines the settlement distribution scheme, achieves this overarching purpose and avoids a more complex process. Section 34 requires the "person" who enters into the BPA to "pay the Commonwealth" and "give the Chief Executive Medicare information" about the group members or compensable persons (see above (at [11])). As the respondents correctly note: (1) under the relevant schemes, the only person able to pay the Commonwealth are the administrators, who are in control of the funds; and (2) the only person who can give the Commonwealth information about the group members are the administrators. The schemes provide for the administrators to gather such information, not the respondents.
22 Relatedly, there are significant practical consequences of the administrator being a "notifiable person" under the HOSC Act, including in terms of efficiency to pay money and give information or whether a BPA would be amenable to agreement if the respondents are the "notifiable person".
23 Although the AGS Letter places much emphasis on the fact that the HOSC Act does not contemplate circumstances in which, following settlement, the claim that has existed up until that point ceases and is replaced by a new and different claim, this is the whole point of the class action regime provided for by s 33V of the FCA Act. Indeed, as I said in Fowkes v Boston Scientific Corporation [2023] FCA 230 (at [186]):
[The statutory right to recover amounts from the compensation payable to Participating Group Members] is supported by the imposition of penalties on a "compensation payer" who fails to attend to reimbursement of such payments prior to paying a claimant. Boston and the solicitors for Ms Fowkes appear to have operated under the assumption that Boston is the "compensation payer" who would be liable to a penalty in the event that payments are made to Participating Group Members prior to third party payers being reimbursed. I do not think this construction of the legislation is correct but, in any event, reimbursement of any valid claims of third party payers ought to be attended to as a priority by an administrator in a settlement of a class action involving personal injury claims.
24 Accordingly, I am prepared to make the declaration sought by the administrators (who have properly taken a neutral position in relation to this application) to reflect the fact that the administrators are the "notifiable persons" for the purposes of the HOSC Act.