The Federal Court’s Chief Justice questioned how Deloitte could say it was “surprised” with the information it was receiving from group members of the Northern Territory stolen wages class action, particularly because of evidence it “knew what it was getting into”.
Appearing before the Federal Court on Wednesday (15 October) afternoon, the lawyer for Deloitte, Michael McCarthy, explained the level of personal details received by members of the stolen wages class action meant the administration has taken longer than expected.
More than 12 months ago, a $180 million settlement was reached between the Commonwealth government and a Shine Lawyers-led class action that alleged thousands of Aboriginal and Torres Strait Islander workers had their wages stolen between 1933 and 1971.
Early last month, Chief Justice Debra Mortimer made orders to extend the administration timeline, having accepted that registrations have not come through as quickly as Shine Lawyers expected.
The registration process was also amended to remove “too strict or too technical” documentation requirements expected of group members.
It was those requirements that caused the original delay, McCarthy submitted on Wednesday. While Deloitte originally expected 20 per cent of potential group members would submit inconclusive forms and require follow-up, the actual figure has been about 50 per cent.
McCarthy said Deloitte would not be alone in being “surprised” about the level of information and material that was coming through.
The Chief Justice referred to Deloitte’s tender material that claimed it had experience working with Indigenous people, was partnered with a First Nations cohort, and “knew what it was getting into”.
“What I don’t understand is how [Deloitte] came up with the estimates she originally did and how they could be so far out.
“There are a lot of statements in that tender document that represent a really high level of experience and knowledge of working with remote, disadvantaged communities, and now the court is being asked to accept that we really didn’t understand at all what we were getting into, we didn’t understand how many people wouldn’t have identity documents. That’s a fairly notorious issue in these communities.
“How can it be so wrong?” Chief Justice Mortimer questioned.
McCarthy submitted that the cohort has been “highly engaging”, with Deloitte’s original estimation of 7,500 calls to a call centre exceeded by almost 10,000, according to data up to 19 August.
“All of which for the future suggests there might need to be intensive scrutiny of the amounts that are being suggested by people like your clients, and that intensive scrutiny – even if there isn’t any actual contradictor – is necessary to avoid where we have ended up now,” Chief Justice Mortimer said in response.
McCarthy said Deloitte has caught up since the orders and had a costs assessor confirm the spending was fair and reasonable.
Earlier in the hearing, McCarthy made an application for suppression orders over figures related to its spending on the administration.
The argument was that the figures could be seen by competitors who may try to “undercut” Deloitte in tenders. This, McCarthy further submitted, may have a “chilling effect” on future administrators.
When McCarthy said it would only be competitors interested in the total figures, Chief Justice Mortimer clarified it was money the court was approving and was being “carefully supervised”.
Although $6 million was already set aside to cover these costs, Chief Justice Mortimer also made the point that the sum was taxpayer money set aside by the Commonwealth.
“Anybody who is interested in how the Commonwealth spends money, how this court approves the payment of services … anybody might be interested in these breakdowns,” Chief Justice Mortimer said.
McCarthy pushed that it would have a negative effect on the “great number” of tenders Deloitte has made.
“It is reasonable and appropriate for these orders to be made,” he said.
Chief Justice Mortimer reserved her decision.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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