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This was a class action on behalf of persons the subject of, or affected by, the stolen generation in the Northern Territory on and after 8 January 1912. Following the commencement of the proceeding, the Commonwealth government introduced a redress scheme for certain victims. As a result, the class definition in the proceeding was amended so as to exclude those persons who were eligible to participate in the scheme. Thus, the class ultimately comprised, in essence:

  • those members of the stolen generation who were deceased as at the date of inception of the redress scheme (Group 1);
  • living parents and siblings of the victims of the stolen generation (Group 2); and
  • deceased parents and siblings of the victims of the stolen generation (Group 3).

The parties agreed to a settlement of the proceeding in the amount of $50.45 million. Justice Beech-Jones approved the proposed settlement having regard to the significant (though not necessarily insurmountable) legal and practical obstacles which the claims faced, and stated:

[7] It suffices to state that, although at one level the payouts to group members will be relatively modest compared to the harm that was suffered, they still represent a very good outcome when consideration is given to the many legal and evidential hurdles the claims faced and the significant delay that was likely to ensue had the matter been litigated. The costs and fees that are deducted from the settlement are reasonable given the risks involved. This case represents a positive example of the benefits of representative actions.

[8] The First Nations children who were taken from their families in the Northern Territory during the period the subject of the plaintiff’s claim form part of what is commonly referred to as the “Stolen Generation”. That phrase refers to those First Nations children who were stolen from their families, communities and culture. However, that is far too brief a statement of the suffering that was occasioned. Cataloguing everything that was taken, and from whom, is simply not possible. The practice of removing First Nations children from their families and the reasons for that practice remain highly controversial. For many, this period of removals represents another dark chapter in this country’s treatment of its First Nations people. However, like many other instances in our history, such injustices do not necessarily sound in a legal remedy or vindication. Injustices within the law are not an unknown feature of this country’s treatment of First Nations people. Hopefully, this settlement will provide some measure of justice, or at least recognition of the harm that was done.

His Honour also approved:

  • the proposed settlement distribution scheme, which provided for a ‘base amount’ to be paid to those class members in Group 3, twice that amount to be paid to class members in Group 2, and three times that amount to be paid to class members in Group 1 – based on the number of registrants, it was estimated that the ‘base amount’ would be approximately $11,800;
  • legal costs of approximately $2.9 million (including reimbursement of $1 million paid for ATE insurance), and settlement administration costs of up to $3 million;
  • a ‘special’ payment of $10,000 to the original lead plaintiff in the case, and $5,000 to the substituted lead plaintiff; and
  • a funding commission of $5.5 million (representing 10.9% of the settlement sum (or 12.88% including the ATE premium reimbursement referred to above)).

The latter was sought on the basis of a ‘common fund order’. His Honour was satisfied that the Court has power to make such an order at the time of approving a settlement (at [51]), and was “overwhelmingly satisfied” that the total amount payable to the funder (including reimbursement of the ATE insurance premium) was reasonable (at [53]).

Ellis v Commonwealth of Australia [2023] NSWSC 550

Supreme Court of New South Wales, Beech-Jones CJ at CL,
25 May 2023

Plaintiff’s Solicitors: Shine Lawyers
Defendant’s Solicitors: Australian Government Solicitor
Plaintiff’s Funder: LLS Fund Services Pty Ltd

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