AUSTRALIAN CLASS ACTIONS: court

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02 April

Shine Lawyers: One of Australia's leading class action law firms

From the Shine Lawyers website:

Class Actions

Sometimes a wrongdoing can affect more than one person. If this happens, our legal team can make a group claim on behalf of everyone affected. This is known as a class action.

Class actions allow individual claims to be brought together in a single action against a defendant. Joining a class action can speed up the legal process and reduce hassle and cost.

A class action can bring to account a wrongdoer who causes widespread harm. If the case is successful, the Court can fairly divide the compensation amount between the group.

Legislation varies between Australian states and territories so it’s important that you’re represented by a law firm with knowledge and experience in this area.

Shine Lawyers provide legal services on a No Win No Fee* basis and can help you find out if you have a claim for compensation.

*Conditions apply

How do I start a class action?

Class actions take place in the Federal Court and State Supreme Courts of Australia.

There are three criteria that need to be fulfilled for the lawsuit to take place:

- There must be 7 or more people claiming;
- From the same, or similar, event/circumstances; and
- The claim must relate to at least one common issue of law or fact.

Class actions in Australia work on an opt-out model. This means that all potential claimants become members of the action whether they intended to participate or not. These members are bound by the judgment of the court or settlement unless they opt-out. If you are involved in a class action you will be notified.

Who is the Class Actions Team?

Shine Lawyers' Class Action team includes some of the firm’s most experienced special counsel, solicitors and support staff, including law clerks and paralegals.

Investigations and Class Actions

Current Investigations and Class Actions

Successful Class Actions
Arundel Suntown Tip Class Action
DePuy/Johnson & Johnson Hip Replacement
Quakers Hill Nursing Home Class Action
Royal Bank of Scotland (RBS) Class Action
Wickham Securities Sandhurst

Investigations No Longer Proceeding
Audi and Volkswagen Investigation

Further Information

For further on information, see the following:

What is a class action?
The benefits of class actions
How to take part in a class action

Shine Lawyers' website: Click here

01 April

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

High Court of Australia backs ‘beauty parades’ for multiple class actions

The High Court has backed the idea that judges can conduct a “beauty parade” when there are multiple class actions afoot and select a law firm to run the case, but suggested that using a “special referee” could be a better way to solve the problem.

The court on Wednesday rejected an appeal by one of the losers in a selection process run by Justice Julie Ward in the NSW Supreme Court for those wanting to sue AMP over revelations at the banking royal commission.

Full story: AFR

The other side of Australian Class Actions: Workers at the mercy of litigation funders

One of the most important benefits of a well-run class action system is that plaintiffs, usually ordinary people who cannot afford big-ticket litigation, will not bear the costs of the legal action against a big company needed to right a wrong.

That’s the theory.

In practice, class action litigation is now full of lawyers and litigation funders - our newest corporate cowboys - chasing staggering riches with little regard for plaintiffs.

That’s why law firms are beefing up their class action capabilities.

It’s also why Australia has become a honey pot for big institutional overseas investors piling money into our litigation funding companies.

In fact, you’d be hard-pressed to find a more profitable asset class in the country.

Some class actions reveal just how perverted the system has become for everyone, except lawyers and litigation funders.

In the Federal Court last October, Justice Michael Lee ridiculed a settlement in a class action involving a group of retail workers who claimed to be employees of Appco Group Australia Pty Ltd. Lee described the proposed settlement as “derisory”.

Full story: The Australian

31 March

Thousands of Aussie tradies could be sued for $642 million if class action succeeds

The key points:

- Shine Lawyers organising class action against ISGM for 4,000 maintenance staff

- Claims they were 'sham contractors' denied leave pay and superannuation

- But ISGM argues they got $61 an hour compared with $35 on employee award

- Therefore if they win the lawsuit, company will counter-sue for the difference.

Thousands of tradies have been warned they could be sued for $642 million if they win a class action lawsuit against a Telstra contractor.

Shine Lawyers is building a massive claim against ISG Management, also known as Tandem, claiming the workers should have been treated as employees.

Instead, they were employed as individual contractors and had to pay for their tools and transport to and from sites where they did Telstra maintenance.

The lawsuit, led by former contractor Robert Mutch, demands back payment of sick leave, annual leave, and superannuation in accordance with the relevant award.

However, ISGM warned it would be forced to counter-sue all the tradies if the claim was successful because it paid them far more than the award.

Tradies have until May 7 to opt out, according to a letter they will be sent, or they will automatically become part of the lawsuit and could be counter-sued.

Documents filed with the Federal Court in Melbourne by ISGM argue it paid more than $1.55 billion to 3,450 workers in 2011 to 2020.

The company's modelling suggested the subcontractors were paid an average of $61 an hour compared to a casual award rate of just $35 an hour.

On average they earned $113,718 a year in the 2018 financial year, compared to $59,000 plus superannuation for a casual working full -time hours.

'This would mean that ISGM would effectively claim back up to $1.55 billion paid to thousands of Australian small businesses over the last nine years and would then pay the award-based employee entitlements to individual employees,' it said.

'This could be catastrophic for small business operators.'

ISGM said it could not afford to effectively pay workers twice for the same work, and would have no choice but to sue for the difference.

Full story: The Daily Mail Australia

McDonald's wins class action: Vanilla flavoring lawsuit against McDonald’s dismissed in the United States

Not all class actions succeed as this report from NLR shows:

McDonald's wins round 1

On March 24, 2021, the U.S. District Court for the Northern District of California dismissed a consumer class action lawsuit against McDonald’s which had alleged various causes of action relating to McDonald’s sale of vanilla ice cream that the plaintiff alleged derived some portion of its vanilla flavor from vanillin rather than vanilla bean.

The Court found that the Plaintiffs had not established that their claim—that consumers were misled by the vanilla flavor labeling—was plausible as required to survive a motion to dismiss.

Specifically, the court found that the allegations of consumer deception were merely conclusory and did not establish that it was “probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.”

The court noted the labeling regulations that govern the retail sale of vanilla ice cream added no support for Plaintiffs’ claims because they indisputably did not apply to sales at fast-food establishments.

Additionally, and serving as an independent grounds for dismissal, the court found that Plaintiffs’ had not established that they had paid a premium for the vanilla ice cream; rather the court found it to be “counter-intuitive” in the market context presented.

We have reported on a variety of vanilla flavoring class action lawsuits, many of which have not survived the motion to dismiss stage.

This case is another demonstration of the difficulty that plaintiffs have had in convincing the court that consumers expect vanilla flavored products to contain not only the flavor of vanilla but also the ingredient vanilla bean.

Full story: NLR

30 March

Priceline faces possible class action from franchisees

Legal representatives say they wish to resolve the dispute at pre-trial mediation or arbitration if possible.

Priceline is facing a potential class action in an ongoing dispute with franchisees who claim Priceline has exerted undue control over their pharmacies.

It is alleged that, in breach of the relevant legislation in Victoria, NSW and Queensland, the franchise agreements contain provisions that assert a level of control over franchisees, require franchisees to pay unfair fees, and provide one or more of the Priceline Companies with direct or indirect monetary or financial interest in the pharmacies.

While the class action has not yet been commenced, all documents necessary to launch the action have reportedly been prepared and duly settled by the Hon Ron Merkel, QC, former Justice of the Federal Court of Australia.

Examples of Priceline’s alleged controlling provisions in the franchise agreements include requirements to stock the Merchandise Range, which is determined by Priceline; place orders through the Auto-Replenishment system; only order through API; and price items as determined by Priceline.

Soon-to-be lead applicants, Chris and Jenny Lemon, had bought into two Priceline pharmacies – one in Sydney’s Central Park and one in Manly – and currently own an independent pharmacy in Frenchs Forest, Sydney.

“As an owner of multiple pharmacies … I was able to see firsthand the difference in the in-store pricing available to me. When I went into Priceline, I expected that the buying at Priceline would significantly better than my independent store, which is with Pharmacy Alliance. But that wasn’t the case at all, in fact the terms were worse,” said Mr Lemon.

Mr Lemon highlighted issues with Priceline’s auto-replenishment system.

“What we noticed was we were getting too much stock of the slow sellers and not enough stock of the fast sellers,” said Mr Lemon. “If you miss two sales to one customer on a line that you’re expected to have, you miss that customer, they’re gone.”

He also alleges that on numerous occasions, API promised and withheld rebates to his businesses.

AJP understands that Mr and Ms Lemon no longer own the Priceline pharmacies.

Stewart Levitt, the Senior Partner at Levitt Robinson Solicitors, said the action will be directed at obtaining compensation for franchisees’ past losses.

This includes recovering damages for the loss of opportunities to acquire stock from API’s competitor at a better price, and/or to obtain rebates from alternative suppliers.

The action also aims to “add value to franchisees’ sizable investment in Priceline through a new, mutually beneficial and legally compliant franchise agreement”.

“Levitt Robinson understands that many Priceline franchisees do not wish ‘to rock the boat’ through litigation, which is why we are committed to take all genuine steps to resolve the dispute at pre-trial mediation and/or arbitration,” Mr Levitt told AJP.

“The ‘boat is already rocking’: State regulators are already investigating the level of control Priceline exerts on franchisees through the Franchise Agreement and, as a corollary, any contraventions of legislation designed to protect the integrity of the pharmacy profession,” he said.

Priceline pointed out that, as of today, there is still no class action against Priceline Pharmacy.

“Apparently, it can only proceed if enough franchisees agree to a funding agreement. We understand the lead applicant in the proposed action is a former Priceline franchisee who is no longer with the brand,” Andrew Vidler, GM Priceline Pharmacy told AJP.

“Priceline remains focused on supporting our franchisees through these difficult times and doing our utmost to help ensure that they can fully play their role in the distribution of COVID-19 vaccinations. We will protect the brand and business we have built together. We have no further comment to make on this matter,” he said.

Full story: AJP

Class action update: Blue Sky action push gets a boost

Momentum for a class action against Blue Sky has accelerated after a small shareholder obtained access to the collapsed fund manager’s books.

The investor, David Furniss, an accountant, also is being allowed by Queensland’s Supreme Court to view key insurance documents covering director’s indemnity.

The granting of rights to inspect investment, audit and insurance documents could help determine the viability of class-action lawsuits over the failure of ASX-listed Blue Sky Alternative Investments.

“This decision is important because it finally gives us access to Blue Sky’s books and records,” said Piper Alderman partner Lachlan Lamont, whose firm initiated the Supreme Court action.

“We can now conduct a forensic analysis of Blue Sky’s accounts and valuation procedures which will help us particularise the shareholders’ claims.”

Piper Alderman, Shine Lawyers and Gadens are among law firms investigating Blue Sky’s accounts to see if any questions arise about disclosures to investors in the former market-darling, which was once valued at more than $1 billion.

“We are still investigating and I am aware of that decision ... which I think is a good decision because ultimately it will probably save everyone time and costs if access to key documents is granted earlier rather than later,” Shine class actions practice leader and former Australian Securities and Investments Commission senior lawyer Craig Allsopp said.

Brisbane-based Blue Sky oversaw funds with assets from a burrito chain to property investments, posting rocketing profits and share prices.

But the wheels fell off after Glaucus Research, short-sellers that make money from share prices falling, dispatched research in March 2018 casting doubt on areas from how Blue Sky was valuing investments to the amount of assets under management.

Blue Sky rejected the claims but tumbled into administration in May 2019.

Justice Graeme Crow, in a decision handed down in Rockhampton last week, said that Mr Furniss had purchased 722 shares in Blue Sky at $13.80 per share, $9963.60 in total, on January 18, 2018. “Some 15 months later his shareholding was worthless,” he wrote.

“[Precedent] cases demonstrate that the pursuit of a reasonable suspicion of a breach of duty is a proper purpose for a substantial shareholder, and in my view, it is also a proper purpose ... for a small shareholder, despite the quantum being much smaller, the rights of the shareholders are the same.”

Justice Crow wrote that there was “substantial support” for the conclusion that there was a case for investigation based on some of Blue Sky’s own market statements after the short-selling critique.

That included Blue Sky stating in April that “it is clear that Blue Sky has fallen short of market and shareholder expectations around transparency and disclosure”.

Another announcement Justice Crow cited was Blue Sky in May saying an “immediate priority is to rebuild trust with stakeholders by making significant changes to the business and management model”.

The court granted access to documents from July 1, 2015, to May 20, 2019, the day Blue Sky was placed into voluntary administration.

“Mr Furniss is not a stranger to Blue Sky, but rather a shareholder who has a right to inspect documents if he can prove, as he has, that he is acting in good faith and for a proper purpose,” Justice Crow wrote.

Mr Furniss has been granted access to look at any indemnity insurance policies that covered Blue Sky or any of its directors and executives between July 1, 2015, and June 30, 2020. The quantum of any insurance policies would outline what a potential class action could go to court to seek damages for.

However, Mr Allsop said shareholders looking to mount an action against Blue Sky and former directors or executives will likely have to wait for a deed of company arrangement, which has been in place since June 2019 and included a moratorium on claims against the company, to be executed or come off. It will also likely require leave from the court to launch a class action.

Former Blue Sky director and head of venture capital Elaine Stead, who was successful in defamation proceedings brought against The Australian Financial Review over two columns in 2019, gave testimony in her action that touched on Blue Sky’s legal requirements about disclosure of information.

Under cross-examination by defence barrister, Sandy Dawson, Dr Stead said an article published by the Financial Review that had previously been published in June 2017 was “incorrect”.

That Financial Review article stated Blue Sky’s $3 billion of assets were evenly split across property, real assets, such as infrastructure, and finally private equity and venture capital.

Full story: AFR

Teenagers launch class action against Minister Sussan Ley over Vickery coal mine

The Environment Minister Sussan Ley is being taken to court in a landmark case that could shape the future of Australia’s energy policy.

A new report from CSIRO and BOM has warned us about the worsening effects of climate change.

A group of teenagers has taken Environment Minister Sussan Ley to court, claiming her approval of a NSW coal mine violates her duty of care to future generations.

A group of eight teenagers from around Australia are driving a class action against an extension to the Vickery coal mine in regional NSW, given the green light by Ms Ley.

The landmark case, which is in the Federal Court on Tuesday, could have dramatic implications for the future of the country’s energy.

Anj Sharma

The 16-year old lead complainant Anj Sharma warned the project would burn roughly 370 billion tonnes of carbon emissions over its lifetime if it went ahead.

“She really needs to understand that she’s the one who’s making decisions that we are going to live with, that we are going to have to raise the next generation under,” she said.

“She owes a duty of care to all young people (and) to all marginalised people to make decisions that will guarantee a secure future for us.

“By approving this coal mine she (is) choosing (to) directly violate that duty of care. This is not the path that we can afford to have Australia and the world on.”

The group is headed by their legal guardian, 86-year old nun Sister Brigid Arthur.

The group was approached after the 2019 School Strike 4 Climate marches by lawyers who had been working on case theory “for a very long time”, Anj revealed.

If successful, their case could set a precedent preventing the federal government from approving future coal mines.

Anj said their legal team was “really excited” about its prospects but claimed the group was “building momentum” regardless of its success in court.

“I wish I was a fortune teller, but I really can’t tell you (whether the case would be successful),” she said.

“(But) this is a monumental case whether it wins or not. I’m really proud, and all the other students are really proud, to be doing something against the coal mine.”

Anj said an increasing number of natural disasters globally showed it was time for Australia to shift its energy focus to renewables.

“The world is facing the climate crisis and people are becoming climate refugees. We are at a point right now in the world where we just can’t let that happen,” she said.

“This coal mine will not be the right path to the future.”

Minister Sussan Ley

Ms Ley declined to comment on a case before the courts.

A similar case brought by teenagers in the Netherlands was successful in 2019 when a Dutch court ordered the government to curb emissions by 25 per cent.

It was the first time a nation was ordered to take action on climate by its courts.

It followed a group of Colombians, aged between seven and 26, successfully suing their government in 2018 over its failure to halt deforestation in the Amazon rainforest.

Full story: ABC

$150 million class action launched against SA Power Networks over Cudlee Creek bushfire in Adelaide Hills

A class action lawsuit seeking $150 million for victims of the 2019 Cudlee Creek bushfire in the Adelaide Hills has been lodged with the South Australian Supreme Court.

Key points:

- The Cudlee Creek bushfire swept through the Adelaide Hills in December 2019

- It was caused by a tree falling on power lines

- A law firm is suing SA Power Networks for damages

Maddens Lawyers is seeking compensation for up to 1,000 victims of the blaze, which destroyed more than 90 homes and killed one person in December 2019.

It claims SA Power Networks' inadequate fault protection settings led to the bushfire, which started when a tree fell on power lines and then a fence.

Brendan Pendergast the Victorian law firm Maddens Lawyers said South Australia's energy distributor knew it was a catastrophic fire danger day, with a total fire ban in place.

"And yet we see in the Office of the Technical Regulator's report that the fault mechanisms were adjusted to normal settings and quite alarmingly the auto-reclose device operated twice so it de-energised the line and then re-energised it after the tree fell on the line and brought it down to the ground," he said.

Cudlee Creek bushfire burning in
the Adelaide Hills threatened the
town of Lobethal.(ABC News)

In its report on the fire released in August, the Office of the Technical Regulator said it "could not identify any indicators that could have enabled a reasonable person to identify this tree failure prior to the event".

Mr Pendergast said he would present experts who said the tree was already "severely compromised" three years before the fire and should have been identified as "dead, dying or dangerous".
Range of losses from bushfire

He said losses went beyond the destroyed homes and 1,000 hectares in damaged vineyards.

"One person tragically lost their life, more than 50 firefighters were injured and many of the citizens living up there had suffered psychological or psychiatric injury as a result of the trauma of the bushfire experience," he said.

"So we're seeking to recover compensation for those aspects of the fire as well."

An SA Power Networks spokesman said the company had not yet seen "the detail of the claim" but would defend its actions.

"An independent government report concluded the fire start was due to a tree falling from outside the vegetation clearance zone surrounding power lines, and that SAPN had acted in accord with its bushfire and vegetation management procedures and equipment settings," he said.

SA Power Networks is controlled by Hong Kong billionaire Li Ka-Shing.

Maddens Lawyers is also representing victims of the November 2019 Yorketown bushfire, which was caused by a power network fault.

That case is heading to court-ordered mediation next month.

"We're optimistic that proper resolution can be achieved at that time rather than taking the matter before the court for a determination," Mr Pendergast said.

Mr Pendergast's firm has been involved in a number of lawsuits relating to bushfires, starting with the Ash Wednesday fire that struck the Adelaide Hills and parts of Victoria in 1983.

Full story: ABC News

26 March

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

25 March

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

24 March

Junior doctors in Victoria commence class action claiming systemic underpayment by public hospitals

An AMA Victoria survey last year found junior doctors were working an average of 16 hours overtime a week.

Legal action has begun on behalf of junior doctors, who say they have been deliberately underpaid after working overtime in Victoria's public health system.

Key points:

- Legal action has been filed against Peninsula Health for alleged underpayment of overtime

- Lawyers say they are planning to bring other class actions against services in the public system

- Some doctors say they are afraid to raise concerns for fear of upsetting their superiors.

A class action has been filed in the Federal Court against Peninsula Health, alleging the underpayment of a junior doctor.

Lawyers are planning to bring other class actions, amid claims of systemic underpayment by other health services in the public system.

Lawyer Hayden Stephens said some junior doctors were working up to 25 hours a week beyond their rostered hours, and many of those hours were unpaid.

"That, in combination with their own genuine concern that this will impact their care and ability to look after patients, together with their own mental health, are issues in which we are calling Victorian health services to address," he said.

Mr Stephens said the legal action could ultimately affect more than 10,000 junior doctors in Victoria.

"This is a claim for unpaid entitlements, it's not a claim seeking additional wages."

"It's nothing more than junior doctors employed in the Victorian health system being paid for their hours work and their fair entitlements, entitlements that have been agreed to by their very own employers."

In a statement, Peninsula Health's Chief Medical Officer, Shyaman Menon, said the organisation "respects the rights of all staff, including the receipt of any payments to which they are entitled."

"Our junior doctors are the future of our organisation and we acknowledge the important contribution they make across all our hospitals and healthcare sites," Dr Menon said.

Doctors reluctant to complain about overtime

Doctor Karla Villafana-Soto said she had been so exhausted after working overtime on shifts that she had made mistakes with medication and doses, that had luckily been caught by other staff.

She claims the underpayment of junior doctors for overtime they've worked is widespread in the public hospital system in Victoria.

"This is now my eighth year of being a junior doctor and I've worked at several health services in Victoria, and I can tell you this is happening everywhere," she said.

"The class action has come up really as a point of last resort after, for many years, many of us have tried to get this issue addressed, and it just hasn't been."

Dr Villafana-Soto claims junior medical staff are reluctant to raise concerns about underpayment for fear of getting their superiors offside.

"You learn very quickly that upsetting supervisors or hospital administration will possibly result in you possibly not getting a job the following year, because most of us are employed for 12 months at a time," she said.

The Victorian President of the Australian Salaried Medical Officers Federation, Roderick McRae, said it was impossible to estimate the true cost of properly paying junior medical staff in Victoria's public health system.

"Everybody understands they're in the game to look after patients, so they're not going to down tools," he said.

"At the same time, there needs to be a reasonable balance and appropriate compensation when those events occur.

Legal action has been filed against Peninsula Health, which operates Frankston Hospital, for alleged underpayment of overtime.

The legal action is being supported by AMA Victoria, which is calling for more doctors to come forward and join the class action.

An AMA Victoria survey conducted last year found junior doctors were working on average 16 hours of overtime a week, mostly without pay.

Full story: ABC News

23 March

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

22 March

New pelvic mesh implants class action against Boston Scientific launched by Shine Lawyers

Lawyers behind a landmark class action over damaging Johnson & Johnson pelvic mesh implants have filed a new suit on behalf of women allegedly harmed by other pelvic implants.

Multinational medical device maker Boston Scientific is accused of acting negligently and selling implants that were not fit for purpose or of acceptable quality, the case filed in the Federal Court on Monday alleges.

One of the women included in the class action says she has been in constant pain since an Obtryx sling was implanted to reposition her bladder in 2012.

"It has been 9 years of suffering," Deborah Stanford said in a statement on Monday.

"If I knew how hard this was going to be, I never would have gone through it."

Ms Stanford has had nine operations, including one that reduced her bladder capacity to 15 per cent, and now has her husband act as her full-time carer.

She is on strong pain relief and says urinating "feels like a piece of sandpaper is being rubbed down there."

The statement of claim alleges the devices - supplied on the advice of the patients' treating doctor to treat pelvic organ prolapse or stress urinary incontinence - caused chronic pain, organ damage, new incontinence issues and other complications.

Rebecca Jancauskas

The class action, using a Melbourne mother-of-five Debra Fowkes's experience as a case study, alleges Boston Scientific failed to properly warn patients about the nature and severity of the risk of developing such complications.

"There are few painkillers that exist that allow you to function normally, and manage the agony that pelvic mesh can cause," Shine Lawyers' class actions practice leader Rebecca Jancauskas said in a statement.

Full story: The Young Witness

21 March

Indonesian seaweed farmers win class action following one of Australia's largest oil spills

Lead plaintiff Indonesian Seaweed farmer Daniel Sanda

Some 15,000 Indonesian seaweed farmers whose livelihoods were destroyed by one of Australia's largest oil spills have won a Federal Court class action

The company behind one of Australia's largest oil spills has been found liable for damaging the livelihoods of thousands of Indonesian seaweed farmers.

The Federal Court on Friday afternoon ruled the operator of the Montara Wellhead Platform, about 700 kilometres west of Darwin, breached its duty of care to the farmers after untested, deficient barriers were used to cap its H1 Well in 2009.

Oil and gas spilled uncontrollably from the well into the Timor Sea for 74 days, damaging seaweed farms off Timor and an island further south.

Class action lead applicant Daniel Sanda, who lived on about $2,000 a year before taking up seaweed farming on Rote Island, had calculated the oil spill cost him 739 million Indonesian rupiah ($A67,000) in profits over six years.

"I am satisfied that this oil caused or materially contributed to the death and loss of (Mr Sanda's) crop," Justice David Yates said.

"I am satisfied that, although difficult to assess, and although attended with uncertainty, the applicant's loss can be calculated, and that he is entitled to an award of damages."

The oil company, PTTEP Australasia, accepted it was negligent in suspending and operating the well but contended it didn't owe a duty of care to the farmers.

Even if that duty of care was owed and breached, it said there wasn't any evidence the oil reached the areas, let alone that oil was in a form that would be toxic to the seaweed crops.

It told Australian Maritime Safety Authority in August 2009 that about 200 to 400 barrels of oil was spilling per day, revising that to the higher figure at trial.

But Justice Yates found the rate was 920 barrels per day "as a minimum" and was likely being discharged at an uncontrolled rate exceeding 2,500 barrels per day.

PTTEP had shown in its oil spill contingency plan that it was concerned as to whether oil spilled at the H1 Well could reach shorelines in Australia, Timor and Indonesia and harm the marine ecosystems there, he said.

While the modelling showed no impacts, it was not dealing with an uncontrolled well blowout arising from a failure to properly suspend the well, the judge said.

"The possibility of impacts to those shorelines and harm to the marine ecosystem carried with it the possibility of harm to those businesses or enterprises that depended on the commercial exploitation of that ecosystem, including in relation to seaweed," the judge said.

"I am satisfied, therefore, that the foreseeability of that risk of harm arising from the respondent's actual acts or omissions is established and that the respondent breached its duty of care to the applicant and the Group Members.

"No other consideration has been raised which militates against a finding of breach."

Class action lead applicant Daniel Sanda had calculated the oil spill cost him 739 million Indonesian rupiah ($A67,000) in profits over six years.

Justice Yates ruled Mr Sanda should be awarded 253 million Indonesian rupiah, having applied a discount of 40 per cent due to uncertainty in Mr Sanda's exact income and found that no income loss occurred in 2013.

Full story: SBS

20 March

$25M Dick Smith Holdings class action settlement approved but judge says "disappointing"

The $25 million settlement resulting from class actions launched against Dick Smith Holdings (DSHE Holdings), the entity remaining after the collapse of electronics retailer Dick Smith, and insurer Alliance, has been approved, but only a small portion will end up in the hands of shareholders.

The cases were launched after the collapse of the retailer in early 2016, along with the closure of its stores, which followed closely on from a $60 million inventory write-down revealed in late 2015.

A rebate-focused inventory buying policy was one of the main triggers of the company’s collapse, according to a subsequent creditors’ report.

It should be noted that online retailer Kogan.com purchased the Dick Smith online retail business in 2016, taking over from June that year.

The online business is unrelated to Dick Smith Holdings, the entity at the centre of the class actions.

Two of three proceedings were brought against DSHE Holdings Ltd and Dick Smith’s then executive directors, Nick Abboud and Michael Potts, and its auditor, David White of Deloitte Touche Tohmatsu.

The other action was brought against Allianz Australia Insurance.

Broadly, two of the proceedings were securities class actions, with the plaintiffs representing people or entities that had purchased shares in Dick Smith.

These actions alleged misleading or deceptive conduct of Dick Smith, Abboud, Potts and Deloitte.

The proceedings settled in principle on 3 December 2020, with the settlement involving a payment by several defendants of a total amount of $25 million.

Now, Supreme Court of NSW justice James Stevenson has approved the settlement, which he described as “disappointing”.

Full story: ARN from IDG

Current Class Actions across Australia in the Federal Court

List of current class actions across Australia as at March 2020 in the Federal Court of Australia on a state-by-state basis.

Keep up-to-date about all Federal Court class actions.

Click: Federal Court Class Actions

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