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.

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

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

South Australian doctors explore class action for "wage theft" following NSW and Victorian actions

Junior doctors in South Australia are “strongly considering” launching a class action against SA Health for systemic “wage theft” over “unpaid overtime”, following similar legal moves interstate.

The SA Salaried Medical Officers Association has begun discussions with lawyers handling class actions in New South Wales and Victoria.

SASMOA chief industrial officer Bernadette Mulholland told InDaily “wage theft” was a major problem for overworked junior doctors and “not confined to the eastern states”.

“SASMOA is strongly considering taking similar legal action to recover wages for junior doctors,” she said.

“SASMOA is undertaking preliminary work and has spoken with the lawyers representing medical officers in NSW and Victoria for wage theft.”

Mulholland said “our investigations validate that wage theft for junior doctors is widespread in health”.

“These doctors are pressured to attend well before the commencement of their rostered shifts, do not get their meal breaks and work unpaid overtime,” she said.

“Hospital administrators know it happens but it is ignored.”

A class action was launched last week against a Victorian health service, amid claims of systemic underpayment of junior doctors.

It follows a class action launched in December on behalf of early career medicos in NSW against health authorities there, over “exploitative work conditions”.

Law firms Maurice Blackburn Lawyers and Hayden Stephens & Associates said the action was based on a claim for “underpayment of wages” for junior doctors.

“It is a claim to seek recovery of payment for the extensive unpaid overtime performed by doctors,” the lawyers said in a statement at the time.

Lawyer Hayden Stephens said the “no-win, no-fee” NSW class action could involve more than 10,000 junior doctors, many of whom were worried about patient safety “after being pressured to work unpaid overtime to the point of exhaustion”.

Mulholland said the problem had also been going on for too long in South Australia.

She said the union had surveyed members late last year on matters that should be addressed during the latest round of enterprise bargaining.

“The number one agenda item that trainee doctors raised was putting an end to ‘wage theft’, including a penalty imposed on the employer for breaching excessive hours worked by junior doctors and fatigue provisions,” she said.

Mulholland said one trainee doctor had stated in the survey: “There is significant destruction to the morale of the workforce too fearful to claim actual hours worked. Cost cutting always seems to pressure junior doctors, who are unable to assert themselves as they are reliant upon reports from those that sign their timesheets and are placed on annual contracts. Staff are continually coerced to not claim.”

The union has requested a specific clause in its new enterprise agreement “that junior doctors get paid for the hours they work”.

“This may seem silly to some but in an environment where you regularly do not get paid for the hours worked it is necessary to spell it out to the hospital administrators,” Mulholland said.

“Making junior doctors work well beyond a rostered shift has implications for patient care and results in fatigues and low morale.”

A spokesperson for SA Health said: “Negotiations for a new SA Health Salaried Medical Officers Enterprise Agreement have commenced and without prejudice discussions are taking place between Department of Treasury and Finance (as the declared employer), SA Health and SASMOA.

“These discussions will be guided by principles of fairness and accountability.

“Medical Officers are highly-valued members of our workforce and it is our intention to progress with negotiations in a timely manner, ultimately delivering a package that supports Medical Officers and the wider system to continue to deliver high quality health services.”

Health Minister Stephen Wade said “we are aware that these matters are being discussed as part of negotiations for a new enterprise agreement”.

“We support doctors getting paid for the work that they do,” he said.

Full story: InDaily

$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

Seqwater still fighting Supreme Court decision holding them responsible for the 2011 Brisbane River flood

Wivenhoe Dam

The 2011 Brisbane River Class action continues with SunWater finally capitulating and agreeing to pay their 30 percent of the Supreme Court ordered damages to the successful 6800 class action claimants.

This finalises Sunwater's legal obligation, subject to approval by the New South Wales Supreme Court where the class action was initiated and payment of the agreed damages.

The Queensland Government did not appeal the November 2019 judgment and has subsequently agreed to pay its court-ordered 20 percent of damages.

This leaves the third defendant - the recalcitrant Seqwater - to continue with its appeal to the NSW Court of Appeal in May 2021 - still trying to overturn the original 2019 judgment.

Goodna Flood 2011

Seqwater was judged 50 percent liable for the flooding of the Brisbane and Bremer Rivers from 11- 14 January 2011 as a direct result of the operation of its Wivenhoe and Somerset Dams in breach of the water corporation's own operating manuals.

Both SunWater and Seqwater are wholly owned by the Queensland Government.

The persistence of Maurice Blackburn lawyers and their associated litigation funders Omni Bridgeway, formerly IMF Bentham, in this matter is testament to the powerful nature of class actions and the only way battlers across Australia can seek genuine justice.

Full story: ABC News