Pearson v State of Queensland (No 2)

• Jurisdiction: Australia Federal only
• Judge: MURPHY J
• Judgment Date: 17 January 2020
• Neutral Citation: [2020] FCA 619
• Date: 17 January 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Pearson v State of Queensland (No 2) [2020] FCA 619

File number:	QUD 714 of 2016
Judge:	MURPHY J
Date of judgment:	17 January 2020
Date of publication of reasons:	8 May 2020
Catchwords:	REPRESENTATIVE PROCEEDINGS – application for court approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) – claim by Aboriginal and Torres Strait Islander workers in respect of wages earned but not paid between 1939 and 1972 –relevant principles in relation to settlement approval – whether the settlement amount is fair and reasonable – whether proposed deductions including for legal costs and funding commission are fair and reasonable – consideration of objections to the settlement – the operation of the extant common fund order – settlement approved
Legislation:	Australian Human Rights Commission Act 1986 (Cth) Racial Discrimination Act 1975 (Cth) Imperial Acts Application Act 1984 (Qld) Limitation Act 1960 (Qld) Limitation of Actions Act 1974 (Qld) Statute of Frauds and Limitations 1867 (Qld) Succession Act 1981 (Qld) The Aboriginals Preservation and Protection Act of 1939 (Qld) The Aborigines’ and Torres Strait Islanders’ Affairs Act 1965 (Qld) The Aborigines’ and Torres Strait Islanders’ Regulations of 1966 The Torres Strait Islanders Act of 1939 (Qld) The Aboriginals Regulations of 1945 (Qld) The Islanders Regulations 1946 (Qld) Colonial Laws Validity Act 1865 (Imp) Slavery Abolition Act 1833 (Imp)
Cases cited:	Blairgowrie Trading Ltd v Allco Finance Group Ltd (Recs & Mgrs Apptd) (In Liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476 BMW Australia Ltd v Brewster [2019] HCA 45 (2019) 374 ALR 627 Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468 Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101 Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447 Cubillo v Commonwealth of Australia [2001] FCA 1213; (2001) 112 FCR 455 Darwalla Milling Co Ltd v F Hoffman-La Roche (No 2) [2006] FCA 1388; (2006) 236 ALR 322 Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 Forbes v Cochrane (1824) 107 ER 450 Grant v John Grant & Sons [1954] HCA 23; (1954) 91 CLR 112 Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439 Kuterba v Sirtex Medical Ltd (No 3) [2019] FCA 1374 Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 Money Max Int Pty Limited (Trustee) v QBE Insurance Group Limited [2016] FCAFC 148; (2016) 338 ALR 188 Pearson v State of Queensland [2017] FCA 1096 Santa Trade Concerns Pty Limited v Robinson (No 2) [2018] FCA 1491 Somerset v Stewart (1772) 98 ER 499 State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44; (2016) 259 CLR 212 Tito v Waddell (No 2) [1977] Ch 106 Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 Williams v The Minister, Aboriginal Land Rights Act & Anor (1994) 35 NSWLR 497 Wotton v State of Queensland (No 11) [2018] FCA 1841
Date of hearing:	21 November, 11 December, 19 December 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	297
Counsel for the Applicant:	Mr D J Campbell QC, Mr J Creamer, Mr A Newman and Mr A Edwards
Solicitor for the Applicant:	Bottoms English Lawyers
Counsel for the Respondent:	Mr A Crowe QC, Mr C Murdoch QC and Ms G Dann
Solicitor for the Respondent:	Crown Law
Counsel for the Intervener:	Mr L Armstrong QC and Mx N Chow

ORDERS

		QUD 714 of 2016
BETWEEN:	HANS PEARSON Applicant
AND:	STATE OF QUEENSLAND Respondent
	LITIGATION LENDING SERVICES LTD Intervener

JUDGE:	MURPHY J
DATE OF ORDER:	17 JANUARY 2020

OTHER MATTERS:

A. The Court notes that the common fund order, Order 2 of the Orders made on 25 August 2017, continues in effect.

AND THE COURT ORDERS THAT:

Confidentiality

1. Pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (the Act), and to prevent prejudice to the proper administration of justice, each of:

   1. Exhibits JT1, JT2, the second sentence of paragraph 21 and paragraph 22 of the Second Affidavit of Jerry Tucker filed 19 November 2019;

   2. Exhibit JB1 of the Sixth Affidavit of John Bottoms filed 13 December 2019;

   3. the Applicant’s confidential submissions in response to Mr Msii’s submissions, filed 10 December 2019,

shall be treated as confidential and, subject to further order of the Court:

1. the relevant exhibits, affidavits and submissions be sealed on the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” and are not to be published or made available in the Registry or on the Court’s internet platform;

2. not disclosed to any person other than:

1. the Court;

2. the Applicant and his legal representatives;

3. LLS and its legal representatives;

4. upon the giving of a confidentiality undertaking in a form reasonably satisfactory to the Applicant or approved by the Court – group members and their legal representatives.

Group member registration

2. The 168 persons referred to at paragraph 17 of the Sixth Affidavit of Jerry Tucker filed 17 December 2019, being persons from Papua New Guinea who have provided registration forms to Bottoms English Lawyers (BELAW), are deemed to have been registered in...