Justice Cameron Macaulay in the Victorian Supreme Court has declined to allow 64 persons, who belatedly sought to participate in the Manus Island class action [1] settlement scheme, to share in the previously agreed $70 million distribution from the Commonwealth.
A total of 1,923 asylum seekers were detained at Australia’s immigration facility on Manus Island in Papua New Guinea between late 2012 and mid-2016. A class action was brought on behalf of those detainees against the Commonwealth and the security firm that operated the centre.
The class action claimants had alleged the Commonwealth of Australia and other defendants falsely imprisoned them and breached duties of care. The case was settled in July 2017, with no admission of liability on the part of the Commonwealth or other defendants. In September 2017, Court approval was given for the settlement and for a Settlement Distribution Scheme that required detainees to register to participate in the settlement sum by a specified date.
Justice Macaulay said the rights of the 1,695 claimants who had registered under the approved Scheme to participate in the settlement had crystallised on the first scheduled payment date of 15 December 2017. To allow the 64 late registrants to take an entitlement to the settlement sum, he said, would involve disposing of property that “properly belongs to participating group members”.
“It is one thing to enlarge the pool of recipients before the distribution sum is allocated to the pool; it is quite a different thing to enlarge that pool once the property has been allocated and rights have been crystallised, as I consider they were,” his Honour said.
Justice Macaulay said the settlement scheme had worked well so far, and particular care should be taken not to fracture its integrity.
“Further, it is misguided to think that ‘fairness’ is achieved by paying money out to a number of apparently deserving people, when in fact such payment would occur at the cost of disruption to the legal framework [that has been] designed to fairly and equitably balance risks and entitlements upon which participating group members choose to participate, and by redistributing money away from those who probably have a proprietary right to it.”
The Court heard about $67 million of the $70 million has so far been distributed to all but 73 of the 1,695 claimants. His Honour granted the scheme administrators an extension until 13 April, 2018 to finalise distribution of payments to the remaining 73.
NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
Read His Honour's ruling on AustLII
[1] Majid Karami Kamasaee v The Commonwealth of Australia, G4S Australia Pty Ltd & Transfield Services (Australia) Pty Ltd (now known as Broadspectrum Ltd)