Robo-debt class action trial scheduled for November 16

The Commonwealth has labelled the claims a 'stalking horse', but Justice Murphy wants the case to be heard 'without delay'.

The class action lawsuit brought on by Gordon Legal against the Commonwealth of Australia in relation to the Centrelink Online Compliance Intervention (OCI) scheme, colloquially known as robo-debt, is now scheduled to begin 16 November 2020.

The case was initially scheduled for 21 September 2020, but COVID-19 stay-at-home orders in Melbourne, as well as an amended statement of claim filed by the applicants, pushed the hearing out.

The Department of Human Services, now Services Australia, 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. 

From 1 July 2016 through 31 August 2019, Centrelink's OCI program saw 1,159,662 assessments be initiated using the automated data-matching technique.

In the amended statement of claim made last month, Gordon Legal alleged former Minister for Human Services Alan Tudge and a handful of government officials had knowledge robo-debt was causing harm to vulnerable Centrelink customers.

Appearing before Justice Bernard Murphy at a case management hearing on Thursday, the Commonwealth, represented by Michael Hodge QC, argued that the applicants were now abandoning the allegation that Tudge knew robo-debt was unlawful.

"Although the applicants never in their letter actually specifically identify that this is what they're doing … the change they're making, they are abandoning the allegation that Minister Tudge knew that, or had actual knowledge that robo-debt was unlawful, so they've given up on that allegation they should never have made," Hodge said.

Hodge said the applicants, in a letter dated 29 September 2020, limited their allegations and knowledge of unlawfulness to the four public servants that were named in their submission.

"The difficulty that is apparent when you look at their document and look at their pleading …  their plead doesn't allege knowledge of unlawfulness by those public servants," he continued.

"One of the things that their letter does is to swerve and compress allegations about knowledge of the Commonwealth with allegations of knowledge of the individuals.

"In effect, the amendments they have introduced by the second further statement of claim are simply a stalking horse for wider allegations of knowledge of individuals and they need … to make those [wider allegations of knowledge] because otherwise they're going to be unable to make good their allegations of knowledge on the part of the Commonwealth."

Hodge suggested the applicants be sent away to allow them to "particularise [the pleadings] properly" if they wanted to make the case they have made in their pleadings.

Counsel for the applicants, Bernard Quinn QC, rejected these claims, telling the court it had not abandoned its allegations against Tudge and the Commonwealth.

"The pleading is what it is, it remains as it was, the allegations have not been abandoned," Quinn said.

"Minister Tudge proceeded with the robo-debt system knowing of unreliability and inaccuracy.

"Minister Tudge has allegations in the opening and the pleading in respect to knowledge of unreliability of the system … if he wants to categorise it as an abandonment, it doesn't really matter one way or another, but the allegations are there."

Quinn also resisted the stalking horse suggestion.

Attempting to further counter Quinn's claims, Hodge said it was not the applicant's pleaded case that the named public servants -- and by effect, Tudge -- had knowledge of robo-debt being unlawful.

"They can't make the proposition they would need to make," he said. "This big gap in what they say in their submission and what they plead …. that gap is fully on display by virtue of the letter."

Justice Murphy decided, however, the pleading was "tolerably clear".

"That is, the applicants allege the Commonwealth, through the named persons, had knowledge," he said, referring to the letter submitted by the applicants. 

Justice Murphy labelled the arguments in the letter as "reasonably and neatly" encapsulating that there was a point to be made in regards to knowledge.

"I think the pleading is understandable, I think you know the case you're required to meet Mr Hodge," Justice Murphy declared. "I think [the case] should be heard without delay."

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