Shine Lawyers: Traditional owners file class action against the Commonwealth over contamination of Indigenous land at Wreck Bay

Media Release from Shine Lawyers

Indigenous Australians whose land was "negligently" contaminated by the historic use of toxic firefighting foam on the South Coast of New South Wales have filed a class action against the Department of Defence.

The substance, known as PFAS, leached into the soil and waterways, damaging culturally significant sites in Wreck Bay, negatively impacting the value of the land.

“Shine Lawyers has filed the action in the Federal Court on behalf of the Wreck Bay Aboriginal Community," said Class Actions Practice Leader Joshua Aylward. 

This will be the fourth PFAS Class Action filed against the Commonwealth by Shine Lawyers.

"Our claim will allege that the Commonwealth negligently allowed contaminants within the fire-fighting foam to escape from the HMAS Creswell and the Jervis Bay Range Facility bases, which has considerably impacted the value of the surrounding land, and adversely affected the community’s connection to country," Mr Aylward said.

“The people of Wreck Bay have been living in the South Coast region since before British settlement and as a result of this contamination, locals fear that the next generation will lose a spiritual connection to the water and land, that has been cultivated there for hundreds of years,” he said.

The Indigenous group in this ecologically and culturally rich environment regard the inland waters, rivers, wetlands and sea as something intimately attached to their homes and properties.

The Australian Defence Force commenced a detailed site investigation at HMAS Creswell and Jervis Bay Range Facility in March 2017, with the results detecting PFAS in surface water, groundwater and sediment around the base. 

The report found widespread PFAS contamination in groundwater both on and off-base, exceeding health-based recommendations for drinking water.

“In 2018, a Parliamentary Inquiry into PFAS contamination recommended that compensation be paid to people living on land contaminated by PFAS from defence sites, but the Wreck Bay community hasn’t seen a dollar, and probably won’t without legal intervention” said Aylward.

Local man gives up job to defend “God's country”

James Williams who has lived in Wreck Bay on and off for forty nine years, has given up fulltime employment to pursue this class action.

“I’ve put everything on hold to make sure that my community and I, see justice,” he said.

He is currently fathering eight children with his partner (four of his own), and he mourns the fact that these children, will never know the land as intimately as he has, over almost half a century.

“You have to take into consideration our cultural background and how we connect to the land, no money will compensate us for the loss of this spiritual connection.

“We look at the land like it’s our mother and you know everyone has great respect for their mother. We can’t just pack up and move to another area and replace her. She is sacred.

“The history within Booderee National Park goes back thousands of years, before any white man came here. When your identity is taken away from you, you are nothing. You have nothing left.

“People come to our land and call it God’s country because it’s so beautiful. The Government has just crucified our country.”

“The land will give you back what you give it. You have to give it your respect and the Government has poisoned it with PFAS instead,” said Williams.

PFAS explained

PFAS are a class of harmful chemicals used by the Department of Defence for around 40 years from the 1970’s in firefighting foam. The chemical does not naturally break down, and is known to accumulate in the body, leading to high concentrations over time.

PFAS soil and groundwater contamination can lead to high levels of the chemical in drinking water, plants, animals and people.

While the health impacts of exposure to PFAS are still being researched, many PFAS experts have linked the toxin to various diseases, including cancer.

About the class action

The class action, Wreck Bay Aboriginal Community Council & Anor v The Commonwealth of Australia was filed in the Federal Court in Sydney.

It is believed approximately 500 indigenous locals have been impacted by the contamination.

This is a Shine Lawyers funded action.

The class action is claiming for three types of loss caused by the PFAS contamination: loss in property value, inconvenience, distress and vexation; and cultural loss.

This is the fourth PFAS related class action, for a tenth community, to be filed by Shine Lawyers.

The investigation for Wreck Bay follows the successful class actions for Oakey and Katherine by Shine Lawyers against the Department of Defence, for the contamination of soil and groundwater which led to the decline of property values.

For more information, click here.

Significant mortgage class action edges closer against Australian banks

After more than seven years work, a high-minded class action on behalf of bank customers with mortgage loans from Australian banks is closer to the stage of finally recruiting class members.

The website HomeBuyersLawsuits.com “comes online in June inviting those people that have entered into mortgage loans since 31 December 2015 to register for class membership,” Roger Brown, formerly a broker at Lloyd's of London, and the entrepreneur behind this matter told Banking Day yesterday.

“The expectation is that a minimum 300,000 registrations will be completed,” Brown said.

The law firm to conduct the case will be finalised by June, with the defendants being the Commonwealth of Australia in addition to nominated banks Brown did not identify yesterday, with key targets easily guessed.

Full story: BankingDay

750,000 CBA customers receiving class action letters

Slater and Gordon says more than 750,000 people will today receive a Federal Court notice advising they may be eligible to be part of a consumer credit insurance class action against Commonwealth Bank.

The action alleges that many people were sold “junk” credit card and personal loan insurance that was of little or no value and that many customers would not have been eligible to make successful claims.

The firm has also commenced similar class actions against ANZ and Westpac, while a suit against NAB in 2019 secured a $49.5 million settlement.

Slater and Gordon says Commonwealth Bank had said it would provide refunds as part of a remediation program, but only a small portion of customers had been compensated, despite sale of the products ending in March 2018.

“This move to return only a small portion of its customers premiums seems to have been a tokenistic effort to protect the bank’s brand, rather than a genuine attempt to make good its past wrongdoing,” Practice Group Leader Andrew Paull said.

Consumers may be eligible to join the action if they were issued with a consumer credit insurance policy since January 1 2010, have paid a premium and have not been paid back in full.

More than two million people have now received court-ordered notices advising they may be eligible to participate in one of the four class actions, which is part of the Get Your Insurance Back campaign.

Full story: Click here

Class action planned to challenge Australia's new IR laws

The mining union and class action lawyers are considering challenging the Morrison government’s newly passed industrial relations laws in a bid to allow casuals to claim holiday pay on top of their loading as far back as six years.

The government’s stripped-back legislation passed Parliament on Monday, cutting billions of dollars in potential backpay by allowing employers to offset casuals’ 25 per cent loading from any permanent benefits owed due to regular and long-term hours.

Adero Law founder Rory Markham says IR laws have never been retrospective before. 

However, the laws also apply retrospectively, including to eight ongoing court cases against the mining industry that total hundreds of millions of dollars, and could cut workers’ claimed compensation in half.

Employers have hit back at the threats, arguing a challenge would increase uncertainty and threaten thousands of jobs while allowing casuals to “double dip” on their entitlements.

Canberra law firm Adero, which is running most of the class actions, said it is getting advice on whether one of its members can launch a challenge to the laws in the High Court.

“Australia has never had a history of retrospective laws in the IR context,” Adero principal Rory Markham said.

“It would be Adero’s expectation that a High Court challenge to the constitutionality of the recent legislation will be run soon by an interested party, putting in issue whether the Commonwealth has acquired property other than on just terms.”

Under section 51 (xxxvi) of the constitution, the Commonwealth cannot compulsorily acquire property, including entitlements to money, without paying just terms and compensation.

Mr Markham argues the “property” in question is more than 1 million workers’ accrued entitlements over the past six years.

“The Commonwealth’s own estimates consider that more than $14 billion has now been taken from Australian workers who can no longer apply the pre-March 18 laws.

“The very laws that have applied consistently since the introduction of the Fair Work Act on July 1, 2009.”

The CFMEU’s mining division is also getting legal advice over a challenge for its class action against labour hire firm Workpac but declined to comment.

The union has argued that labour hire in the mining sector engages casuals on less than the market wage of their permanent colleagues and then works them like full-time employees on rosters issued 12 months in advance.

The Federal Court held a regular casual miner was a misclassified permanent entitled to paid leave and redundancy, and their 25 per cent loading did not offset this because it failed to specify the benefits it accounted for.

The ruling raised questions about how far such principles would extend to other “regular casuals” employed in sectors such as health, universities or even retail, and the government estimated it could lead to backpay bills for business of up to $39 billion.

Unions argue the ruling is limited to the round-the-clock circumstances of the mining sector.

But new accounting standards last year required 25,000 companies to calculate their liability over entitlements to casuals who may be permanent employees.

Deakin University constitutional law professor Dan Meagher said constitutional challenges over retrospectivity are a “notoriously difficult and complex area” but noted they had worked in relation to workers’ compensation cuts.

‘Completely out of touch with reality’

Australian Industry Group chief executive Innes Willox said talk of a constitutional challenge by overseas-backed class action lawyers was “not in anyone’s interests other than their own”.

“It is very likely that any constitutional challenge will fail but the uncertainty associated with any challenge would only damage employment and the economy,” he said.

Australian Mines and Metals Association chief executive Steve Knott said, without retrospectivity, “the issue would have sent large employers as well as many small and family businesses to the wall”.

Australian Chamber of Commerce and Industry acting chief executive Jenny Lambert said “reopening double-dipping claims is completely out of touch with the reality facing many small businesses who employ casuals as they seek to cope with the end of JobKeeper and recover from the impacts of COVID-19”.

Acting Minister for Industrial Relations Michaelia Cash said the government was “confident in the validity of the measures in the bill”.

“Failure to address the double-dipping issue would be catastrophic for jobs and businesses. Businesses would otherwise face additional costs of up to $39 billion – an impost that would lead to thousands of job losses and business closures.”

Full story: Australian Financial Review

A proposed 30 per cent cap on gross returns to litigation funders would make a large number of class actions financially unviable, new research by PwC chief economist Jeremy Thorpe shows.

When applied to class actions from the past 20 years, the research showed returns in 36 per cent of matters would not have covered the legal costs of running the case, let alone adequate returns to the funder.

Omni Bridgeway CEO Andrew Saker backs a 50 per cent floor on returns to class action members. 

Commissioned by Australia’s largest litigation funder, Omni Bridgeway, Mr Thorpe’s report found even a 50 per cent cap would make some actions unviable and leave Australians without access to justice.

“This demonstrates the trade-off inherent in any cap on litigation funder returns,” the report said.

“It would provide higher returns to some class members, but some members would not receive returns they would have otherwise expected as fewer actions would be undertaken.”

Omni Bridgeway chief executive Andrew Saker said a 70 per cent floor for member returns would not lead to adequate revenue for litigation funders when balanced with the “considerable risks” associated with “long, expensive, complex and bitterly fought actions with uncertain outcomes”.

“In other words, many funder-backed class actions that have led to recoveries for group members arising from negligence, misleading conduct and other illegality, would not have been brought, denying a significant number of Australians any financial recovery,” Mr Saker said.

“To the extent that proceeds from a successful action are eroded by legal fees, this is largely a function of the high costs of pursuing litigation in Australia and not a reflection of litigation funding.”

A parliamentary inquiry looking into litigation funder-backed class actions last year was generally scathing of the sector, which it accused of using the justice system for the primary motive of generating a return on investment.

The final report recommended the government consult on the best way to introduce a statutory minimum return of gross proceeds from class actions (including where the matter is settled out of court) to members.

It also recommended the government explore a minimum gross return of 70 per cent to class members from any damages awarded; and whether a graduated approach could be taken based on risk and complexity.

Full story: Australian Financial Review

COMMENT: Moves to cap gross returns for litigation funders reek of the big end of town - those whose actions have caused the need for class actions - trying to influence their mates in government to minimise pay-outs to those who legally deserve them.

If this happens, justice will be denied to battlers across Australia whose only recourse in recent years has been to avail themselves of various class actions on a "no win, no fee" basis. What could be fairer than that?