Haswell v Commonwealth of Australia (No 2) [2023] FCA 34

FEDERAL COURT OF AUSTRALIA

Haswell v Commonwealth of Australia (No 2) [2023] FCA 34 File number: NSD 431 of 2020

Judge: LEE J

Date of judgment: 27 January 2023

Date of publication of reasons: 31 January 2023

Catchwords: REPRESENTATIVE PROCEEDINGS – application for further security for costs – observations on need for such applications to be resolved with alacrity and pragmatically –– where estimated legal costs likely inaccurate – order made for approximately half of further security sought

Legislation: Federal Court of Australia Act 1976 (Cth) Pt VB

Cases cited: Haswell v Commonwealth of Australia [2020] FCA 915

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicants: Mr WAD Edwards SC with Mr P Gaffney

Solicitor for the Applicants: Shine Lawyers

Counsel for the Respondent: Ms S Callan SC with Ms C Gleeson

Solicitor for the Respondent: King & Wood Mallesons

ORDERS NSD 431 of 2020

BETWEEN: REANNAN LAURA HASWELL First Applicant

BEAUX DANIEL TILLEY Second Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent

JUDGE: LEE J DATE OF ORDER: 27 JANUARY 2023

THE COURT ORDERS THAT:

1. The parties provide short minutes of order reflecting these reasons within seven days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A INTRODUCTION AND BACKGROUND 1 This class action is brought by the applicants on behalf of group members who owned land in or around seven Royal Australian Air Force bases throughout the Commonwealth and allege their land was contaminated as a result of the Commonwealth's use of Aqueous Film Forming Foam (AFFF) at those bases (Haswell Proceeding): see Haswell v Commonwealth of Australia [2020] FCA 915 (at [1]). 2 It is related to three earlier class actions involving similar allegations, which were the subject of settlement approval by the Court, and also, most importantly, proceeding NSD 70 of 2021, Wreck Bay Aboriginal Community Council & Anor v Commonwealth of Australia (Wreck Bay Proceeding). The Wreck Bay Proceeding concerns persons who suffered loss by reason of contamination caused by the use of AFFF in the Jervis Bay Territory. 3 The Wreck Bay and Haswell Proceedings are being case managed and will be heard together at an initial trial scheduled to commence on 1 May 2023. 4 On any view, this litigation is of enormous proportions. In effect, it involves eight quite large actions being heard together, each of which raises complex issues of liability and damage. 5 Reflecting this complexity, an amount in excess of $12 million has already been charged to the Commonwealth in relation to legal costs in the Haswell Proceeding. Although the cases are large, this figure, at first blush, strikes one as very large. It is more understandable when one appreciates that two members of the inner bar and five junior barristers have been briefed, instructed by a very large firm of commercial solicitors, King & Wood Mallesons. For reasons that are unnecessary to enquire into (let alone comment upon for the purposes of this application), the Commonwealth has instructed separate solicitors in the Wreck Bay Proceeding, being the Australian Government Solicitor. A further two silks and three juniors hold briefs to advise and appear in that case. More modestly, the applicants in the Haswell and Wreck Bay Proceedings have common solicitors, Shine Lawyers (Shine), and have briefed the same senior counsel and four juniors. 6 A distinction between the Haswell Proceeding and the Wreck Bay Proceeding warrants mentioning at the outset: the former is being funded by a commercial litigation funder, Litigation Capital Management, and the latter is being conducted by Shine on a speculative basis. No security has been provided, nor has it been sought, in the Wreck Bay Proceeding.