Reflecting on a recent class action involving Aboriginal and Torres Strait Islander people, Chief Justice Debra Mortimer told Lawyers Weekly that practitioners should think seriously about investing the “vast amounts of money” spent on the litigation into community organisations.
In approving the $180 million settlement reached between the Commonwealth and the group members for the Northern Territory stolen wages class action, Chief Justice Debra Mortimer was critical of major compensation firm Shine Lawyers for its “excessive costs”.
In the judgment, handed down in April, the Chief Justice said Shine appeared to have adopted a settlement model without “any apparent reflection” on whether it would have been more efficient and effective for group members to coordinate with local community organisations.
Referring to the amounts they and their families would be getting, Chief Justice Mortimer said it would be understandable for the group members to be frustrated and “likely mystified” with the large sums of money paid to “city-based non-Indigenous” lawyers and administrators.
“I doubt they would see much social justice in this outcome. That may well be compounded because of the way the outreach program has been conducted, with groups of city-based lawyers visiting towns and communities, trying to engage with people, perhaps on the first time they have ever met them, on very distressing matters, and leaving again.”
The Chief Justice said the “enormous amounts of money” Shine contended it needed could have instead been paid into the organisations that have “well-established expertise in serving these communities”.
Similar criticisms were made of the administrators at Deloitte, which recently asked for and was granted an increase in its costs from the originally estimated $1.8 million to $3.196 million.
In the November judgment, Chief Justice Mortimer said there was no evidence before the court that Deloitte had sought substantive advice and contributions to ensure its approach was informed “by a real understanding of the disadvantages facing this cohort”.
Speaking to Lawyers Weekly at the 2025 Australian Legal Convention, Chief Justice Mortimer said lawyers should be thinking about how they can engage with community organisations “and use that knowledge and experience so people feel safer to participate in the legal system”.
“They [should] feel they’re understood, [and] they don’t necessarily have to tell all their stories to the same extent if they are working with community organisations who know them and understand them, especially in remote and regional communities where there are a lot of organisations who work with people on other aspects of their lives.”
Chief Justice Mortimer added there should be more investment out of the “vast amounts of money put into these class actions” and into the organisations that work with these communities each day.
“I would like to see some of that flowing more to local organisations to support them and their communities to feel that their local organisations are valued and can be used in this space,” Chief Justice Mortimer said.
Just as lawyers can be doing more in this space, Chief Justice Mortimer said colleagues at the bench could be making an effort to ensure that First Nations people are able to participate in proceedings.
For example, in this and other proceedings, the Federal Court has set up locations within these communities. Recently, Chief Justice Mortimer was in Cape York for a native title case that saw almost 1 million hectares returned to traditional owners.
After some time on-country, the proceedings were held in Cairns, allowing about 30 to 40 group members to participate. Had it been in Brisbane, Chief Justice Mortimer said no one would have been there.
“If people are sitting there listening to the evidence, listening to, say, an anthropologist, and have a chance to talk to their lawyers, sometimes an agreement can come out of that, even in the running of a trial.
“I also think the respect that’s shown to groups by the court by making the effort to go, rather than expecting everybody to come to us, is important,” Chief Justice Mortimer said.
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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