Jenkings v Northern Territory of Australia (No 5)

• Jurisdiction: Australia Federal only
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] FCA 1585
• Court: Federal Court
• Date: 15 December 2021

Federal Court of Australia

Jenkings v Northern Territory of Australia (No 5) [2021] FCA 1585

File number:	NTD 64 of 2016
Judgment of:	MORTIMER J
Date of judgment:	15 December 2021
Catchwords:	PRACTICE AND PROCEDURE – application for approval of settlement of a Part IVA representative proceeding pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – where terms of settlement remain confidential – where large class of vulnerable young people represented – application granted.
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 33V, 33ZF, 33ZB
Cases cited:	Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Binsaris v Northern Territory [2020] HCA 22; 380 ALR 1 Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 Campbell v Northern Territory (No 3) [2021] FCA 1089 Hobbs Anderson Investments Pty Ltd v Oz Minerals Ltd [2011] FCA 801 Jenkings v Northern Territory of Australia (No 3) [2021] FCA 621 Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839 Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 LO v Northern Territory [2017] NTSC 22 Lopez v Star World Enterprises Pty Ltd [1999] FCA 104; ATPR 41-678 Skeen v Northern Territory [2018] NTLC 008
Division:	General Division
Registry:	Northern Territory
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	122
Date of last submissions:	1 November 2021
Date of hearing:	8 November 2021
Counsel for the Applicants:	Mr P Batley
Solicitor for the Applicants:	Maurice Blackburn
Counsel for the Respondent:	Mr T Moses
Solicitor for the Respondent:	Solicitor For The Northern Territory

ORDERS

		NTD 64 of 2016
BETWEEN:	DYLAN RILEY JENKINGS First Applicant ; AARON HYDE Second Applicant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

order made by:	MORTIMER J
DATE OF ORDER:	15 DECEMBER 2021

THE COURT ORDERS THAT:

Settlement Approval and appointment of the Claims Administrator

1. Subject to these orders, and pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of this proceeding be approved on the terms set out in:

   1. the settlement deed made on 28 May 2021, being Annexure KMP38 to the affidavit of Kerry Palmer sworn on 4 June 2021 (the Deed); and

   2. the Settlement Scheme (the Settlement Scheme), set out in Annexure KMP51 to the affidavit of Kerry Palmer sworn on 1 November 2021, including the proposed methodology to determine the compensation payable to each participating Group Member (methodology) that is confidential annexure BJS18 to the Second Confidential Affidavit of Ben Slade affirmed on 5 November 2021.

2. Pursuant to s 33ZF of the Act, the Applicants are authorised nunc pro tunc, on behalf of the Group Members (as defined in the Seventh Statement of Claim) (Group Members), to enter into and give effect to the Deed and conduct the transactions and take the steps contemplated by the Deed for and on behalf of the Group Members.

3. Pursuant to s 33ZB(a) of the Act, the persons affected and bound by these orders are the Parties to the Deed and the Group Members.

4. Pursuant to s 33ZF of the Act, Maurice Blackburn is appointed as the Claims Administrator of the Settlement Scheme and is to act in accordance with the Settlement Scheme, subject to any direction of the Court.

Registration

5. The date fixed by order 10 made on 27 July 2021 as the date on or before which any Group Member who wishes to receive Compensation (as defined in the Deed) in the proposed settlement should register for Compensation (Register) is extended to 31 July 2022.

Costs and deductions from the Settlement Distribution Fund

6. Pursuant to s 33ZF of the Act, the amount of $20,000 is approved as the amount to be deducted from the Settlement Distribution Fund (as defined in the Deed) (Settlement Distribution Fund) and paid to the Applicants in the amount of $10,000 each to reimburse them for the time spent and other costs borne by them providing instructions and evidence, for the purposes of clause 4.1(a) of the Deed.

7. Pursuant to s 33ZF of the Act, the amount of $9,400,000 (including GST) is approved as the amount to be deducted from the Settlement Distribution Fund and paid to Maurice Blackburn in payment of the Applicants’ Costs and Administration Costs (as defined in the Deed), for the purposes of clauses 4.1(b) and 4.1(c) of the Deed.

8. Pursuant to s 33ZF of the Act, the amount of $600,000 (including GST) is approved as the amount of the ‘Financial Capability Reserve’ to be held in reserve in the Settlement Distribution Fund for payment as necessary to agencies for the provision and/or co-ordination of financial counselling and/or financial capability training services to Group Members and is to be managed and distributed by the Claims Administrator in accordance with the terms of the Settlement Scheme.

9. All previous costs orders made in this proceeding be vacated.

Conclusion of the Proceeding

10. Within 28 Business Days of concluding the final distribution to the Group Members from the Settlement Distribution Fund (as defined in the Deed), the Applicants and/or Claims Administrator shall apply to the Court for orders dismissing this proceeding with no order as to costs.

Amended Settlement Notice

11. Pursuant to s 33Y(2) of the Act, the form and content of the following be approved: The Settlement Notice Summary, which is Schedule 1 to these orders, be amended such that:

    1. the following words be added under the words: “Settlement Notice” and the identification of the language: “This letter is to tell you that the last date to register has been changed to 31 July 2022. If you have already registered you do not need to register again.”; and

    2. the words “You must register before 16 November 2021” be amended to “You must register before 31 July 2022.”

(Amended Settlement Notice).

12. Maurice Blackburn is to have the text to be added into the Amended Settlement Notice in accordance with order 11 above translated into Kriol, Yolŋu Matha, Warlpiri and Pitjantjatjara.

13. Pursuant to s 33Y(3) of the Act, the Amended Settlement Notice be provided to Group Members in the proceeding according to the following procedure:

    1. from no later than 22 December 2021, Maurice Blackburn is to publish the English version of the Amended Settlement Notice on its website;

    2. in the period commencing on the date when Maurice Blackburn complies with Order 12 above and ending no later than 27 May 2022, Maurice Blackburn is to cause the Amended Settlement Notice to be sent by the following means to all Group Members who, as at 17 November 2021 have not Registered:

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