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

$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

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