Pearson v State of Queensland

INTRODUCTION 1 This matter is a class action brought by the applicant, Hans Pearson, under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Act) against the respondent, the State of Queensland (the State). Mr Pearson brings the proceeding on his own behalf and on behalf of a "closed" class of persons. A class member is any person who, during all or part of the period from 12 October 1939 to 4 December 1972 (the Claim Period): (a) was or was deemed to be an Aborigine or a Torres Strait Islander (Islander) under one or other of The Aboriginals Preservation and Protection Act of 1939 (Qld), The Aborigines' and Torres Strait Islanders' Affairs Act of 1965 (Qld), The Torres Strait Islanders Act of 1939 (Qld), The Aboriginals Regulations of 1945 (Qld), The Islanders Regulations, 1946 (Qld) or The Aborigines' and Torres Strait Islanders' Regulations of 1966 (Qld) (the control legislation); (b) lived in an area proclaimed or deemed to be a District or on land defined to be missions or reserves under the control legislation; (c) was in paid employment arranged or entered into under the control legislation; (d) had the whole or part of his or her wages taken, retained or otherwise paid by the employer to the Protector of Aborigines (including the Protector of Islanders) or to the superintendent of the reserve or mission in which he or she lived; (e) has not been given the money so taken, retained by or paid to the Protector or superintendent as his or her wages; (f) claims equitable relief and/or the payment of compensation in that regard; and (g) as at the date of filing the Amended Statement of Claim (17 March 2017), has entered into a litigation funding agreement with the litigation funder, Litigation Lending Services Ltd (LLS). The case is colloquially known as "the Stolen Wages case". 2 Before the Court is an interlocutory application dated 4 July 2017 in which Mr Pearson sought: (a) an order pursuant to s 33K of the Act to amend the class definition so as "open" the class by deleting the requirement that each class member have entered into a litigation funding agreement with LLS (the class opening order); and (b) orders pursuant to ss 23 and 33ZF of the Act and rule 1.32 of the Federal Court Rules 2011 to apply litigation funding terms to the class (as opened), including to require the applicant and class members to pay LLS a pro rata share of the legal costs incurred and a funding commission rate set at 20% of the amount for which their claims are settled or judgment is given, from the common fund of any settlement or judgment in their favour (the common fund order). 3 The orders sought are interdependent in that Mr Pearson did not pursue the class opening order independently of the common fund order. That is because LLS will not continue to fund the action if the class is opened but no common fund order is made, such that class members can benefit through the litigation without being obliged to contribute to the litigation funding charges and legal costs incurred. In the alternative, Mr Pearson seeks orders to expand the closed class by amending the class definition to bring in additional claimants who register and sign a funding agreement. 4 Many of the disputed issues in the application were resolved at a case management conference on 14 August 2017. I made orders on 25 August 2017 and these are the reasons for those orders. 5 The orders differ in one significant way from the orders Mr Pearson sought, in that I declined to make a common fund order which set the funding commission rate at 20%. Instead I made orders that provide for a funding commission rate of 20% or such lower percentage as the Court considers reasonable at that time. The funding commission rate will be approved at a later point when the Court has more complete information in that regard.

THE EVIDENCE 6 The following material was before the Court: (a) Mr Pearson relied on two affidavits of John Raymond Reis Bottoms, a principal in BE Law (Bottoms English Lawyers Pty Ltd), the solicitors for the applicant, the first affirmed on 4 July 2017 and the second on 11 August 2017, together with their annexures; and (b) the State relied on the affidavit of Zita Anne Beuth, a Principal Lawyer with Crown Law, the solicitors for the respondent, sworn 10 August 2017, together with annexures. Neither deponent was cross-examined.

THE CLASS OPENING ORDER 7 I am well satisfied that a class opening order is appropriate. 8 Unless there is some reason to refuse Mr Pearson leave to amend the class definition, it is a matter for him to define the represented class, and I can see no reason to refuse leave. I also note that, if leave were refused, it would be open for Mr Pearson or a class member to commence another class action on an "open" class basis, but carving out those persons who have already entered into a funding agreement with LLS. Any such case would likely be heard together with the present proceeding and would have the same effect as making the class opening order. 9 The State consents to the order (although not to the interdependent common fund order). It did not articulate the reasons underlying its position, but I infer that the reasons include that a closed class is likely to be a barrier to settlement. If the class remains closed and Mr Pearson is successful on the common issues, Aborigines and Islanders who are not class members could bring subsequent claims, individually or in another class action. That would mean that the State would not achieve finality of litigation through any settlement or judgment. That can also be seen in Mr Bottoms' evidence that opening the class may facilitate settlement of the proceeding as it will enable finality to be brought to the "Stolen Wages" issue in one proceeding rather than through what he describes as piecemeal wage reparation schemes over the past 15 years. 10 This is a paradigm case to be conducted on an open rather than a closed class basis. Mr Bottoms deposed that there are approximately 8,700 Aborigines and Islanders who were subject to the control legislation during the Claim Period and who had their wages withheld. Many live in relatively isolated communities in Queensland and are elderly, poorly educated and lack commercial and legal sophistication. 11 Mr Bottoms and his staff have undertaken an extensive general outreach program to indigenous communities throughout Queensland, including Cairns, Kuranda, Mareeba, Mossman, Ravenshoe, Mount Garnet, Hope Vale, Wujal Wujal, Yarrabah, Palm Island, Innisfail, Tully, Cardwell, Townsville, Ayr, Bowen, Aurukun, Mapoon, Weipa, Napranum, Normanton, Burketown, Doomadgee, Camooweal, Cloncurry, Mount Isa, Dajarra, Boulia, Rockhampton, Woorabinda, Cherbourg, Murgon, Ipswich, Logan, Zillmere, Jagera, Horn Island, Mer/Murray Island, Darnley Island, Yorke Island (Masig), Badu Island, Saibai, Boigu, Warraber, Yam Island (Iama), Moa Island (Kubin and St Pauls) Mabuiag, Hammond Island and Thursday Island. Mr Bottoms, his staff, and sometimes counsel, visited these communities to explain the litigation and the litigation funding arrangements with LLS, and for potential class members to provide instructions and sign the funding agreement. 12 Mr Bottoms deposed that he and his staff have met with approximately 3,267 potential class members from those communities who qualify as class members and who have signed funding agreements. Because they had not signed funding agreements when the Amended Statement of Claim was filed they are not class members unless the class definition is opened or otherwise amended. He also estimated that there are approximately 3,000 to 4,000 further potential class members in Aboriginal and Islander communities throughout Queensland who he and his staff have been unable to speak to. If the class opening orders are not made these persons will not share in the benefit of any favourable result in the case or be bound in any adverse result. 13 The central aims of the Part IVA regime include enhancing access to justice by providing for an opt out representative procedure and improving judicial economy by allowing a common, binding decision to be made in one proceeding instead of in multiple proceedings: Federal Court of Australia Amendment Bill 1991, Commonwealth, House of Representatives, 14 November 1991, Second Reading, at 3174 (M Duffy - Attorney-General); Australian Law Reform Commission, "Grouped Proceedings in the Federal Court", Report No 46, 1988, at [13]. In the Second Reading Speech the then Attorney General said: The Government believes that an opt out procedure is preferable on grounds both of equity and efficiency. It ensures that people, particularly those who are poor or less educated, can obtain redress where they may be unable to take the positive step of having themselves included in the proceedings. It also achieves the goals of obtaining a common, binding decision while leaving a person who wishes to do so free to leave the group and pursue his or her claim separately. 14 Making a class opening order so that potential class members - many of whom are elderly, poorly educated, lack legal and commercial sophistication and live in relatively isolated locations - can participate without taking any positive step meets the access to justice aims of the Part IVA regime. It will also meet the aim of improving judicial economy by increasing the level of finality achieved through the case. 15 Further, it has become standard practice in closed class actions for respondents to request, as a precondition to settlement discussions, that the class be opened and then closed again through a class member registration process, often in a compressed timeframe: see Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited (2016) 245 FCR 191; [2016] FCAFC 148 (Money Max) at [185]-[190] (Murphy, Gleeson and Beach JJ). If the class opening order is not made, it can reasonably be expected that to facilitate settlement the parties will make an application for orders to allow class opening and closing in the present case. In circumstances where many persons affected by the alleged wrong live in relatively isolated communities and are likely to be elderly, poorly educated and to lack legal and commercial sophistication, it is preferable that the class definition be opened now rather than later and that class members are included in the case without any requirement to register. 16 Finally, although neither party raised this issue, it is necessary to consider whether the class opening order is in the interests of existing class members. For example, it might be said that allowing further class members into the case may operate to dilute the amount that the present class members are likely to each receive. In such circumstances Mr Pearson and his solicitors, BE Law, may have a conflict of interest between their (understandable) interest in ensuring that more Aboriginal and Islander persons can participate in the case and their duty to act in the interests of existing class members. 17 There is little to indicate that a potential conflict of interests exists. Counsel for Mr Pearson submitted that this is a case in which the specific amount of money that has allegedly been withheld from each class member means that any settlement is unlikely to involve a global lump-sum such that class members' individual recoveries may be diluted by additional class members. The parties have not entered into settlement discussions and there is no settlement in the offing. That is not to suggest that it would necessarily involve a conflict of interest to seek a class opening order that may have such a diluting effect. It is a factor to be weighed in the balance. It must be kept in mind that settlement offers are sometimes only made on the basis that a class opening order is sought. The authorities show that class opening orders have been made shortly prior to a global lump sum settlement on several occasions: see Pathway Investments Pty Ltd v National Australia Bank Ltd (Supreme Court of Victoria proceeding SCI 2010 6249) (Pagone J) (Pathway) and Farey v National Australia Bank Ltd [2014] FCA 1242 (Farey) (Jacobson J).

THE COMMON FUND ORDER 18 The application for a common fund order is primarily grounded in s 33ZF of the Act which provides a broad power to make such orders as are "appropriate or necessary to ensure that justice is done in the proceeding". The power is directed at enabling the Court to make orders to deal with the novel problems that might arise through representative proceedings. The expression "necessary to ensure that justice is done" requires that an order be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding, not that an order will make certain that justice is achieved or injustice avoided: Money Max at [165]. 19 The State did not object to a common fund order per se. It took the position that whether to make a common fund order and the terms of any such orders are matters for the Court, taking into account the particular circumstances of the case, including the Court's responsibility to protect class members' interests. 20 For an order to be in the interests of justice in the proceeding requires consideration to be given to the interests of class members. As I said in Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 at [145], s 33ZF is directed, at least in part, to the issue of judicial control of representative proceedings so as to protect class members' interests. 21 It is plain that the Court has power to make a common fund order in an appropriate case: Money Max at [161]-[165]. The question is whether such an order is appropriate in the interests of justice in this proceeding. I am satisfied that it is. 22 First, the common fund order means that all class members will pay the same pro rata share of legal costs and funding commission from the common fund of any amounts they receive in settlement or judgment. It is in the interests of justice in the proceeding that the burden of the legal costs and litigation funding commission charges incurred in achieving any favourable result falls equally upon all class members who stand to benefit from the proceeding. 23 Second, the orders provide that the Court will approve the funding commission at a rate of 20% or such lower percentage as the Court considers reasonable at a point when the Court is armed with more complete information as to the quantum or likely quantum of any settlement or judgment. That is likely to be at the stage of settlement approval, or if there is no settlement, at the stage of distribution of damages. Class members will have the protection inherent in judicial oversight of the funding commission charged. 24 Existing class members have already agreed to a 20% funding commission rate and they get the benefit of a potentially lower rate. That said, without in any way attempting to bind the Court hearing the relevant application, unless there is a very large settlement it seems unlikely that the funding commission rate will be lower than 20%. I accept the evidence that a 20% rate compares favourably with the rates generally offered in the litigation funding marketplace and that, at least in part, LLS offered that rate because of its interest in the social justice aspect of the case. 25 "New" class members (those who became class members through the class opening order) must pay a litigation funding commission from any successful result and they have not agreed to do so. That can be seen as against their interests but I would not refuse the orders on that basis, when litigation funding charges have become a standard cost in class actions: Money Max at [71] and [179]-[184]. If such persons are to share in the benefits of the class action it is fair that they pay a pro rata share of a reasonable Court-approved litigation funding charge. Further, for new class members, the interdependence of the applications for the class opening order and common fund order means that, absent the common fund order, they are not class members at all. There is no real detriment to their interests when they may opt out if they are unhappy with the orders. 26 Third, class members will be informed of the requirement to pay a reasonable Court-approved funding commission (at a rate no higher than 20%) before they must decide whether to opt out. Existing class members are unlikely to opt out as they have already agreed to litigation funding terms and a 20% funding commission rate, and new class members who object to paying a reasonable Court-approved funding commission can opt out. Doing so means they will lose the benefit of the class action as a vehicle for vindicating their rights, but absent the interdependent class opening order they would not become class members anyway. 27 Fourth, the litigation funding terms (Funding Terms) which will bind LLS, Mr Pearson and BE Law are standard and they include appropriate protections. Apart from the lower funding commission rate, they are similar to the litigation funding terms which the Full Court accepted in Money Max. The Funding Terms include that: (a) LLS's obligations to fund the Project Costs (as defined), including by paying BE Law's legal costs and disbursements charged up to the Funding Limit (as specified in the funding agreements), paying the cost of any insurance covering an adverse costs order, paying any adverse costs order made and providing any security for costs, extends to all class members and not just those who have entered into a litigation funding agreement; (b) any settlement or judgment sum is paid into a trust account kept for that purpose; (c) subject to any order of the Court, BE Law is to pay from the trust account: (i) first, pay to LLS the Project Costs (as defined), plus 20% of the amount for which the claims are settled or judgment is given or such lower percentage as the Court considers reasonable, plus GST; (ii) second, pay to itself any unpaid portion of the legal costs and disbursements (including any uplift fee payable on Lawyers Professional Fees pursuant to the Legal Costs Agreement) plus GST; (iii) third, pay all Administration Expenses (being the cost of the administration of any scheme for the distribution of any settlement); and (iv) fourth, distribute the balance to the class members on a pro rata basis by reference to their claims in accordance with any distribution scheme approved by the Court. (d) BE Law's professional duties are owed to the applicant and not to LLS. If BE Law notifies LLS and the applicant that circumstances have arisen that they may be in a position of conflict with respect to any obligations they owe to the applicant and to LLS, then BE Law's obligations to the applicant prevail. (e) LLS will give day to day instructions to BE Law concerning the claims but the applicant has the right at any time to give instructions to BE Law that override LLS's instructions. (f) if there is a dispute between LLS and the applicant as to the appropriate terms of settlement, BE Law will brief the most senior counsel of those retained in the proceeding to advise on the reasonableness of the proposed settlement. If counsel's opinion is that the proposed settlement is reasonable then the applicant agrees that BE Law will be instructed to do all that is necessary to settle the proceeding provided that Court approval is sought and obtained; (g) if there is a dispute between LLS and the applicant about any appeal, the addition or removal of respondents in the proceeding, the termination of BE Law's appointment or the appointment of alternative solicitors, the dispute will go to mediation, and if not resolved at mediation it will be determined by an independent person. That determination will be final and binding; and (h) the Funding Terms can only be terminated by Court order granted on application by the applicant, LLS or a class member. They provide for what happens upon termination, but are expressly subject to "any contrary order of the Court". If LLS applies to terminate the Funding Terms it is entitled to be reimbursed the Project Costs plus GST from settlement or judgment monies but is not entitled to be paid its percentage funding commission. 28 Fifth, absent the class opening order and the related common fund order there are likely to be at least three types of class members within the class: (a) those who have signed funding agreements and are deemed to have registered; (b) those who have not signed funding agreements but who register; and (c) those who have not signed funding agreements and do not register. The conflicts of interest which may arise between these different types of class members are avoided through a common fund order: see Money Max at [189]-[191] and [197]-[199]. 29 Sixth, Mr Bottoms deposed that a common fund order will mean that the outreach program to class members will not need to involve as extensive an explanation of the details of the funding arrangements for the purpose of inviting class members to join the class action. It seems likely that "book building" costs will be reduced because of the orders and a reduction in that cost will reduce the amount deducted from class members' possible recoveries. 30 It is unnecessary to impose a condition that class members not be "worse off" by reason of the common fund order, as with the rider in Money Max. That rider should not be decontextualized from the circumstances of that case. It was imposed in circumstances where the common fund application was made in a funded open class proceeding in which a substantial number of class members had signed funding agreements and many more class members had not. The respondent contended that if a common fund order was made class members would be worse off than if a funding equalisation order was subsequently made. The rider was a case specific tool, and in any event it did not necessarily require the counterfactual of a funding equalisation order: Blairgowrie Trading Ltd v Allco Finance Group Ltd (Receivers & Managers Appointed) (In Liq) (No 3) (2017) 343 ALR 476; [2017] FCA 330 (Blairgowrie) at [105]. The present case is different to Money Max, being a funded closed class proceeding, in which the only class members are those who have signed funding agreements. 31 Existing class members will be better off under the common fund order for the reasons already given. For new class members, they only come into the case through the class opening order and that order is only sought on the basis that the common fund order is also made. The counterfactual is not a funding equalisation order, but an ongoing closed class proceeding. 32 To the extent that the possibility of a future funding equalisation order can be said to be relevant, I agree with the remarks of Beach J in Blairgowrie at [102] where his Honour said that a funding equalisation order was first made as an "ad hoc innovation posited by practitioners" to expediently resolve a practical problem that had arisen in an early class action. By consent of the parties in various class actions that followed, the use of the funding equalisation mechanism grew. Such an approach is not the result of judicial evolution and exposition and there is no reason to treat it as suitable for all occasions or preferable to a common fund approach. 33 Finally, Mr Bottoms deposed that the Court should not defer approval of the funding commission rate to a later point, and urged that the rate should now be approved at 20%. He said that leaving the rate open may confuse class members given that many are elderly, poorly educated and lack commercial and legal sophistication. He said it will facilitate trust and participation in the process if BE Law can tell group members with certainty what their ultimate position will be. In my view orders which provide for a 20% rate or such lower percentage as the Court considers reasonable at that time are readily explainable to class members. One simple explanation may be: "If the case wins or settles and the Queensland government pays you money, you will pay a percentage commission of no more than 20% of that money to the company funding the case plus your share of the legal costs. You are only required to pay the level of commission and legal costs that the Court approves."

WHETHER NOTICE TO CLASS MEMBERS OF THE COMMON FUND APPLICATION IS REQUIRED 34 Mr Pearson contended that, in the circumstances, notice of the common fund application need not be provided to class members. The State disagreed. 35 The State argued that there was no reason in principle why notice of the common fund application should not be given before the class is opened in circumstances where class opening and common fund orders have been sought in the one application. It noted that in Money Max notice of the common fund application was given to all class members and the Full Court considered class members' objections. It said that Mr Pearson had not advanced any persuasive basis why persons who were not presently class members, but who would become so through the class opening order, should not be notified of the common fund application and given the opportunity to make an objection prior to such orders being made. 36 On the basis that the State consented to the class opening order, it did not accept the contention that the notice provisions in ss 33X and 33Y of the Act only require notice of the application be given to existing class members. The State contended that the class opening order (to which it consented) could be made first, followed by a hearing of the common fund application made on notice to class members. 37 The State also submitted that any detriment to class members through a common fund order cannot necessarily be cured by a subsequent right to opt out. It relied on the Full Court's statement in Money Max (at [114]) that "[s]ubject to class members being given proper notice and a right to object, a right to opt out can act to safeguard the interests of absent class members and can 'cure' a detriment." 38 Mr Pearson contended that it was unnecessary for class members to be given notice of the common fund application. He submitted that: (a) s 33X only contemplates notices being given to class members and does not contemplate notices being given to persons who may become class members. There was no requirement that such persons be given notice prior to the making of a common fund order; (b) the common fund order does not detrimentally affect the interests of existing class members because they have already signed funding agreements in similar terms, and there is already a de facto common fund regime in place as between them. The orders do not change the financial position of existing class members because the proposed Funding Terms do not propose a funding commission rate higher than 20%; (c) notice of the common fund application was given to class members in Money Max because that proceeding was an open class action and the position of existing class members was going to change, particularly the position of the many class members who had not entered into a funding agreement. That is different to the present case, in which the class is closed; and (d) in previous closed class actions where class opening and common fund orders have been sought together, prior notice has not been given to class members: see Pathway and Farey. Instead, class members were given notice of the common fund order shortly after the orders were made, in an opt out and class member registration notice. 39 I accept Mr Pearson's contention that s 33X is only concerned with notice to class members, rather than to persons who may become class members, but not much turns on that. Before a common fund order can be made under s 33ZF the Court must be satisfied that doing so is necessary or appropriate to ensure that justice is done in the proceeding. Depending on the circumstances, the appropriateness of such an order may hinge on notifying class members of the application and the Court considering any objections they raise. The Court should be cautious in protecting class members' interests and it may be that class members have concerns or objections which the Court has not contemplated. 40 I accept that existing class members have already agreed to the Funding Terms and a de facto common fund, and the common fund order is plainly to their benefit rather than to their detriment. It is unnecessary for existing class members to be given notice of the common fund application. However, there is no reason in principle why new class members, who have not agreed to pay a litigation funding commission, should not be notified of the common fund application. Whether it is appropriate to provide class members with notice will depend on the circumstances. 41 Mr Pearson proposed that class members be given notice of the common fund order when they are informed of their right to opt out, which is shortly to occur. That was the approach taken in Pathway and Farey. 42 I take the same approach in the present case. I do so, first, because the common fund order benefits existing class members and is not detrimental to the interests of new class members. 43 Second, the time and expense associated with giving notice of the common fund application is not justified when any need for notice is marginal. Providing notice of the common fund application will be time-consuming and expensive when many of the new class members live in relatively isolated communities in Queensland. Many such persons are elderly, poorly educated and lack legal and commercial sophistication. They have not been reached through the general outreach program and I accept Mr Bottoms' evidence that absent such a program they are unlikely to respond to notice of a common fund application. Many of them do not have access to email and because of their circumstances mass notices provided through radio, newspapers and internet are, on their own, unlikely to be sufficient notice. 44 Third, a notice in relation to the common fund application is likely to be confusing for class members because such a notice must either be combined with the opt out notice or it will be followed soon after by an opt out notice. The common fund application notice would only require a response from class members who want to stay in the case but who object to paying a litigation funding commission of not more than 20%. The opt out notice would only require a response from class members who do not want to stay in the case. It would be far from straightforward to make a combined notice clear for class members and, particularly in light of the characteristics of the class, the differing requirements for response seem apt to confuse. 45 In my view the preferable course is to notify class members of the common fund order through the opt out notice. That will inform them of their right to opt out if they do not wish to participate in the class action for any reason, including because they object to paying a reasonable Court-approved funding commission of not more than 20%. 46 Mr Pearson's legal advisers accept that, having regard to the characteristics of the class, great care should be taken in drafting an opt out notice which is as simple and clear as possible. Such a notice, coupled with a further outreach program, should maximise the prospect that class members are properly notified. 47 I will deal with approval of the form of opt out notice in accordance with the timetable ordered.

Use of the CPH Reparation database 48 There was a dispute as to whether Mr Pearson's legal representative should have access to the contact details of Aboriginal and Islander claimants held by the State on the Community and Personal Histories electronic database (CPH Reparation database). The database records information about Aboriginal and Islander persons who submitted a Claimant Application Form under several State reparation schemes relating to the control legislation. 49 Mr Pearson sought an order under s 33Y(3)(c) of the Act directing the State to supply the identity and contact details of all claimants on the database to his solicitors. He argued that such information is the best data available and there is no good reason for it not to be used in providing notice to class members. 50 In response to requests from Mr Pearson's solicitors, the State said it was prepared to develop a list of possible class members based on the CPH Reparation database, and to send a notice to them which has been agreed by the parties and approved by the Court, with the cost of distribution being paid in the first instance by Mr Pearson. In light of its offer the State said that claimants had not given permission for their identity and contact details to be so disclosed and contended that orders should not be made for it to provide the claimants' contact details to Mr Pearson's solicitors. 51 The purpose of s 33X is to give notice to class members "in the most efficient and effective way": Explanatory Memorandum, Federal Court of Australia Amendment Bill 1991 (Cth) at [33]. The CPH Reparation database contains the contact details of what is likely to be most class members, those details can readily and inexpensively be downloaded, and the identity and contact details of class members is otherwise largely unknown. It is plain that the database should be used to notify class members. An expansive view should be taken in preparing a list of possible class members from the database as the most important consideration is to maximise the reach of any notice. 52 It is unnecessary to decide whether to order that a list of claimants be provided to Mr Pearson's solicitors. They would prefer to have such a list, but counsel accepted that it suffices if notice under s 33X is sent by a commercial mail house, on a confidential basis, to all claimants whose details are recorded in the database. The State also indicated agreement to that course. Any such notice should not appear to come from the State because it is the applicant's notice, albeit Court approved, and because correspondence from the government may cause anxiety or confusion for some class members. 53 I will deal with any residual issues in relation to the manner in which the opt out notice is provided to class members in accordance with the timetable ordered. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.