Victorian public housing residents file class action after surviving off "nuts and beans"

Public housing tower residents have filed a class action over the lockdown in Victoria, claiming they survived off ‘nuts and beans’.

Residents and neighbours are shining a light on conditions in the nine locked-down housing commission towers through social media with one resident saying it was ‘worse than prison’.

Public housing tower residents shut inside their homes during Melbourne’s lockdown are suing the Victorian government claiming they were left without food and medication.

A claim was filed in the Victorian Supreme Court last week, alleging residents are owed damages for the “invalid”, “oppressive” and “degrading” lockdown that failed to consider human rights.

More than 3000 people were locked inside nine apartment towers from July 4 to either July 9 or July 18 last year, before the entire state went into hard lockdown on August 2.

The claim alleges lead plaintiff Idris Hassan and his family were supplied with “spoiled” food after being banned from buying groceries.

After being provided nothing for three days they were given four partially-defrosted sausage rolls, placed at the door step, that were “not fit for human consumption”, it alleges.

Ms Hassan and his nine-year-old son suffered asthma attacks after they ran out of medication, with the family surviving on “nuts and beans”, it alleges.

Victoria’s Deputy Chief Health Officer Annaliese van Dieman is named as the first respondent in the suit, along with Deputy Public Health Commander Finn Romanes, Chief Commissioner of Police Shane Patton, and the state of Victoria.

Residents were deprived of access to fresh air, exercise and occupational activities, it is claimed.

They were exposed to health risks as communal areas were not disinfected, and PPE was not provided, despite the presence of COVID-19 in the towers, it is alleged.

Government workers left bins overflowing and some residents lost their jobs after being unable to work during the lockdown, it is claimed.

The claim alleges they were “not consulted” about the lockdown, which banned them from leaving their homes without approval.

“Some time on 4 July 2020, prior to 3.30pm, (Victoria Police) decided to deploy hundreds of Victoria Police officers to the Estate Towers to enforce the detention of the residents of those towers,” the claim states.

It alleges Ms van Dieman had 15 minutes to review, sign, and consider the human rights implications of the lockdown before a press conference scheduled for 4pm on July 4.

It claims she “felt constrained” to approve the directions and “considered that she could not delay signing” before the press conference, which she appeared in alongside Premier Daniel Andrews.

“(She) allowed the decisions of third parties, or their actions and attitudes, to control the way she exercised her discretion,” the claim alleges.

The lockdown was not explained at the time to the residents of the towers, according to the claim.

“The decision not to inform the residents of these matters was not governed by questions of practicability, but was a deliberate decision made to ensure that the residents did not go elsewhere,” it alleges.

“Intimidating conduct” by Victoria Police officers also began “triggering pre-existing trauma” in some residents, the claim alleges.

The lead plaintiff, Mr Hassan, is a Somalian refugee who arrived in Australia after fleeing civil war.

He fled his village in 1990 when it was targeted by soldiers and made his way to Australia with his six siblings, making it to Australia in 1998.

At the time of the lockdown he lived in the public housing tower in Sutton Street, North Melbourne, with his wife and three children aged 9, 7 and 4.

About an hour after the lockdown began Mr Hassan asked a police officer for permission to buy groceries and medical supplies and was refused, it is alleged.

No food deliveries were made to him for several days and authorities “refused the Australian Muslim Social Services Agency permission to deliver culturally-appropriate food supplies to the residents”, it is alleged.

He ran out of asthma medication and despite calling a hotline number played on television, was not delivered medication in time and suffered asthma attacks, the claim alleges.

The medication was supplied on July 8, four days after they were locked inside the towers, the claim says.

Food supplied was not halal, a requirement of their Muslim faith, and Somali interpreters were not engaged in explaining why they had to go COVID-19 testing, it is alleged.

Residents were tested for COVID-19 “without giving their full, free and informed consent and, or in the alternative, under duress”, the claim alleges.

The class action is being run by solicitor Serene Teffaha of law firm Advocate Me.

It will be heard in the Supreme Court at a date to be set.

Full story: News.com.au

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?