“I doubt they would see much social justice in this outcome": Judge critical of law firm in stolen wages class action

Dechlan Brennan
Dechlan Brennan Published April 21, 2025 at 1.30pm (AWST)

A federal court judge has criticised a law firm for adopting a process with an "excessive level of human resources" in a stolen wages class action for Indigenous workers in the Northern Territory.

Minnie McDonald sued the Commonwealth in 2021 on behalf of many thousands of Aboriginal and Torres Strait Islander peoples who worked in the NT and were paid little or no wages from 1933 to 1971, while they were subject to Commonwealth wage control legislation.

Last year, the federal government settled the class action, without admission of liability, following mediation.

Of the $180 million settlement, Litigation Lending Services (LLS) will receive $30 million - one-sixth of the settlement - while Aboriginal workers themselves will receive "at least $10,000" each.

In addition, the group's legal representatives, Shine Lawyers, will pocket $15 million.

Last week, Justice Debra Mortimer said Shine "elected to plan what I consider was the most expensive way," but said while the settlement "does not have to be perfect, or generous", it was "fair and reasonable, when balanced against the risks of going all the way to a trial with an uncertain outcome".

Cost referee Elizabeth Harris found Shine had employed more than 100 staff members for the case, and Justice Mortimer said the process adopted by the lawyers was "not conducive to the most effective and efficient conduct of the proceeding".

"There is no evidence Shine investigated whether resources might be available within the First Nations communities where group members live, or regionally within parts of the Northern Territory, to engage with group members," Justice Mortimer said in her ruling, rejecting the firm's request for an additional $8 million in costs.

She said the "many layers of complexity" in the case was somewhat ironic given the claim was made on "behalf of a group of people who were disadvantaged and oppressed in many ways at the time of the alleged failures to pay wages".

"Those people, and their descendants, still experience disadvantage in terms of average levels of education, health, access to services and facilities, life expectancy, and lack of proficiency in written and spoken English compared to non-Indigenous people," Justice Mortimer said.

"Many of those characteristics are shared to some extent by the individuals who have led this class action, including the applicant Ms McDonald."

A model by Shine of "conducting extensive research" of Indigenous communities across the NT resulted in Justice Mortimer arguing the firm could have reduced costs if they had "partnered or collaborated at a much earlier stage in the proceeding with local organisations with that existing knowledge and expertise".

She said they adopted the model without any "apparent reflection on whether group members might be registered more quickly, efficiently and effectively" had they dealt directly with organisations and people they had already developed a trust with.

"The enormous amounts of money Shine contends are required to conduct this process could have been injected, as disbursements, into First Nations communities and the regional organisations that serve them. These organisations have well-established expertise in serving these communities," Justice Mortimer said.

Whilst she said she had been "critical of aspects of the conduct of the proceeding, especially by Shine, and somewhat sceptical about the approach of the funder," Justice Mortimer said this was not to "doubt the genuineness of these participants (including their legal representatives), and the genuineness of their desire to secure positive outcomes for group members".

"Nevertheless, the pursuit of the business model has, in my respectful opinion, at times overshadowed these good intentions," she said.

"It seems to me a not inconsiderable number of people in Aboriginal and Torres Strait Islander communities in the Northern Territory would look at the figures being paid to the lawyers and to the funder… and then look at what their family members are getting at an individual level, and they would be frustrated, and likely mystified about how city based non-indigenous participants in this proceeding come out with so much money compared to their family and friends.

"I doubt they would see much social justice in this outcome."

Last year, after the settlement was announced, Ms McDonald reflected on life under the system that stole the wages of Aboriginal people.

"It was hard when we were growing up. We lived in the bush and didn't have any school. When I was young, I started working on stations. I was working with my family - my father, my mother and my brothers were on the station. I later met my husband when working on stations. We had nothing and had to live on bush tucker and a bit of bread," she said.

"A lot of those people we worked with are gone now. This is about all the people who were working everywhere and never got paid nothing."

Last year, Minister for Indigenous Australians Malarndirri McCarthy apologised to the group members and their surviving relatives in the Senate, stating, "We acknowledge a significant wrong in this country".

The Minister said many First Nations people worked "for very little pay, even in some cases, for no pay at all, often for excruciatingly long hours, often in remote locations and difficult conditions, often away from family".

"During this period of Australia's growth, the knowledge and hard work of First Nations people and in the Northern Territory was heavily relied upon and at times exploited," she said.

"Unfair Commonwealth laws denied indigenous people fair financial reward for their efforts in working to build communities across Australia."

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