Robo-debt class action on track for September 21

Friday's interlocutory hearing will continue next week, where Justice Lee's team will wade through 'two lever arch folders'-worth of legal and professional privilege claims made by the Commonwealth.
Written by Asha Barbaschow, Contributor

The Federal Court of Australia on Friday held an interlocutory hearing in a case brought on by Gordon Legal against the Commonwealth of Australia, relating to the Centrelink Online Compliance Intervention (OCI) scheme, colloquially known as robo-debt.

In November, Gordon Legal launched the robo-debt class action on behalf of five representative applicants and hundreds of thousands of people who are included in the case as group members.

The essence of the applicants' case is that debts raised by robo-debt are unlawful, and all recipients should be compensated by the federal government.

During Friday's hearing, access to around 83 documents covered by either public interest immunity (PII) or legal professional privilege (LPP) were discussed, with Justice Michael Lee hearing that those documents would fill "about two lever arch folders".

Senior counsel for the applicant, Georgina Costello, argued that the content of certain documents would determine whether they should be considered privileged.

"We don't know how independent the lawyer who provided the relevant legal advice, if there is legal advice, was. That's another issue that's for resolution in principle where you've got in-house lawyers in a government department; that's an issue your honour will be familiar with," she said.

Prior to the hearing, the Commonwealth provided the applicants with a revised position, in which two of the documents over which PII had been claimed will now be produced, and three documents over which PIII had also been claimed were also agreed to now be produced in part. And on the LPP side, both parties have agreed that nine such documents will be produced.

"That's not unusual in this sort of case where the Commonwealth is put to proof on the privilege claims that, having thought about it a little more, they've produced some more. But the fact that today we have 11 more documents produced in whole over which seemingly experts the Commonwealth had given their opinion that it would be against the national interest to produce these documents -- and yet today they're produced -- shows that there has been -- at least in the past from the Commonwealth -- overreach," Costello said.

"One man's overreach is another person's faithful application of the overarching purpose to narrow issues … it may be different people, more senior people, come into things shortly before a hearing," Justice Lee said in response.

Costello said it was important for it to be known whether the Commonwealth had "knowledge of the unreliability of averaging" and "knowledge of the harm that may be caused to a vulnerable cohort in carrying out process that may result in the wrong answer" for the class action.

Costello added that it may also be necessary to return for "another bite of the cherry" as there could be more documents to which privilege is likely to be claimed that haven't yet been made.

Justice Lee was hesitant to "go back for a second bite of the cherry" to determine whether the documents would be subject to a valid claim for privilege, but agreed to a second round of interlocutory hearings to be held next week.

He said the parties needed to be practical in having the matter resolved.

The department kicked off the data-matching program of work in 2016, which saw the automatic issuing of debt notices to those in receipt of welfare payments through the Centrelink scheme. Centrelink's OCI program, from 1 July 2016 through 31 August 2019, saw 1,159,662 assessments be initiated using the automated data-matching technique.

The class action trial is scheduled to commence on 21 September 2020 and is expected to run for approximately three weeks.

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