1. This is an offer by N R Barbi Solicitor to enter into a costs agreement with you. This documents, which incorporates our Disclosure Statement (on the Cover Page) and General Terms of Business, sets out the terms of our offer to provide legal services to you and constitutes our conditional costs agreement and costs disclosure pursuant to the Legal Profession Uniform Law 2015 (“LPUL”).
2. We act for those suffering from Covid 19 Vaccine related injuries and associated conditions in a class action brought by the Lead Applicant/s (“the Applicant”) for a claim against the proposed respondents being:-
a) Secretary of the Department of Health – Brendan Murphy;
b) Former Deputy Secretary of Health Products Regulation Group - Adjunct Professor John Skerritt;
c) Chief Medical Officer – Professor Paul Kelly;
d) Minister For Health And Aged Care – Mark Butler;
e) Former Minister For Health And Aged Care – Greg Hunt (24 January 2017 – 23 May, 2022);
f) The Commonwealth Of Australia (“the Respondents”),
(hereinafter known as the “Class Action”).
3. We charge you both professional fees and disbursements in this matter. Professional fees are our charges for performing legal work on your behalf. Disbursements or outlays are the charges and expenses that are incurred on your behalf in the course of your matter both internally and with external providers.
4. You have the right to obtain independent legal advice before entering this Agreement.
SCOPE OF WORK – CLASS ACTION – GROUP MEMBER
5. You may be a group member in the Class Action brought against the Respondents (“a Group Member”).
a) Proceedings have been commenced on behalf of persons who suffered loss and damages as a result of being injected (“the Injection”):
i. with one or more of the following products identified as (“the Vaccines”):
1. “COMIRNATY” product sponsored by Pfizer Australia Pty Ltd (“the Pfizer Vaccine”), at any time on or after 25 January 2021;
2. the Pfizer Vaccine product produced in the formulation for paediatric use in children aged 5 to 11 years of age sponsored by Pfizer Australia Pty Ltd (“the Pfizer Child Vaccine”) at any time on or after 3 December 2021;
3. “VAXZEVRIA” product sponsored by AstraZeneca Pty Ltd (“the AstraZeneca Vaccine”) at any time on or after 15 February 2021;
4. “SPIKEVAX” product sponsored by Moderna Australia Pty Ltd (“the Moderna Vaccine”) at any time on or after 9 August 2021;
5. the Moderna Vaccine product produced in the formulation for paediatric use in children:
a. aged 6 to 11 years (“the Moderna Child Vaccine”); and
b. aged 6 month to 5 years (“the Moderna Infant Vaccine”);
ii. for the purposes of immunisation against the disease (“the Vaccines Purpose”):
1. known as Covid-19 (“Covid-19”);
2. caused by SARS-CoV-2 (“the Virus”); and
iii. on or after, as to:
1. the Pfizer Vaccine - 25 January 2021;
2. the Pfizer Child Vaccine - 3 December 2021;
3. the AstraZeneca Vaccine – 15 February, 2021;
4. the Moderna Vaccine - 9 August 2021;
5. the Moderna Child Vaccine – 17 February, 2022;
6. the Moderna Infant Vaccine – 19 July, 2022.
iv. in Australia; and
v. by a suitably qualified:
1. medical practitioner;
2. health professional; or
3. any other person legally qualified or authorised to administer the Vaccines; and
b) suffering a serious adverse event either partly or wholly by reason of the Injection, such serious adverse event being one or more of the following events (“a Vaccine Induced Serious Adverse Event”):
ii. a life-threatening event;
iii. an event which required in-patient hospitalisation;
iv. an event which prolonged existing hospitalisation;
v. an event which resulted in persistent or significant disability or incapacity, including:
1. permanent impairment of a body function; or
2. permanent damage to a body structure;
vi. an event which necessitated medical or surgical intervention to prevent permanent impairment of a body function or permanent damage to a body structure;
vii. caused a congenital anomaly, birth defect or stillbirth;
viii. was a medically important event;
ix. was an event that made one or more of the outcomes above more likely; or
x. was an event that required intervention to prevent one or more of the above outcomes, including events that required intensive treatment in an emergency department or at home but did not result in hospitalisation,
Your claim as a Group Member relies on the successful outcome of the primary proceedings on the common issues of law and fact brought by the Applicant.
6. Class actions are generally run in two stages. In the first stage, the court will determine the issues that are common to all Group Members together with any particular questions that are raised in the Applicant’s claim, including individual claims for compensation. In the second stage, the personal claims of each of the Group Members are determined.
7. In our experience, class actions are often settled shortly before or after the first stage. This is because the court’s decision on common issues is binding on all Group Members and sufficient evidence will have been provided in relation to the Applicant’s claim for damages to enable the parties to agree on a resolution without proceeding to a hearing.
8. If the Class Action settles, all monies received from the Respondents will be distributed amongst all Group Members in accordance with a plan of allocation which will be agreed between the parties and approved by the Court.
CREATING A LEGALLY BINDING AGREEMENT
9. This Agreement sets out the terms on which N R Barbi will act for you.
10. This Agreement is an offer by N R Barbi to enter into a legally binding costs agreement with you. You may accept this offer and execute this Agreement:
a) by electronic communication to N R Barbi that identifies you and indicates your intention to accept this offer and sign this Agreement, being a method of signing to which N R Barbi hereby consents;
b) by affixing your usual handwritten signature to, or DocuSigning a copy of, this Agreement and returning that copy to N R Barbi; or
c) if you are other than a natural person, by executing a copy of this Agreement in accordance with relevant law and returning that copy to N R Barbi.
A facsimile, email transmission, or a DocuSigned version of this Agreement signed by any party to it will be treated as an original signed by that party.
WHEN COSTS WILL BE PAYABLE
11. We will only charge you professional fees and disbursements upon the successful outcome of the matter or if this agreement is terminated in accordance with clause 8 or 9 of the attached General Terms of Business.
12. If a case on the common issues is lost, you will not be liable to pay our professional fees or any disbursements or expenses incurred on your behalf.
13. If a case brought on your behalf in relation to losses suffered by you is lost, you will not be liable to pay our professional fees or any disbursements or expenses incurred on your behalf. You may however be ordered to pay the Defendant’s costs associated with your individual unsuccessful claim.
CONDITIONAL COSTS AGREEMENT
14. We will be entitled to receive payment of our Legal Costs from you in the event that you obtain a successful outcome in any action against the Respondent.
15. A successful outcome includes:
a) any verdict or award of money in favour of the group member in connection with the claims of the Applicant and/or the Group Members;
b) the recovery of money as a result of any settlement, including a settlement completed after termination of this agreement;
c) any Settlement approved by a court in the Class Action, whether or not accepted by the Applicant; or
d) any offer to the group member that arises from or is related to the Legal Work of N R Barbi and is one that N R Barbi reasonably recommends the Applicant accepts.
CASE MANAGEMENT FEES
16. In the event that a successful outcome is achieved as defined in this Agreement entered into between yourself and N R Barbi, there will be a Case Management Fee payable to N R Barbi from all claimants, which is in addition to the Legal Costs payable herein.
17. Such Case Management Fee is for N R Barbi’s management administration and facilitation of the proceeding and its funding, the establishment and maintenance of a database of Group Members and to people who inquired of N R Barbi as to whether they could be included for the purposes of the proceeding, the overall coordination of efforts designed to advance the interests of Group members, the steps to be taken to identify and communicate with Group Members who are not N R Barbi clients, and all like administrative processes. A fee of 5% of the total Professional Costs is payable per Group member.
18. An Uplift Fee of up to 25% is allowed under the LPUL and can be charged as a premium for conducting the proceeding on a conditional fee basis.
19. N R Barbi may charge an Uplift Fee for conducting your claim.
20. We will charge you professional fees for the work we do at hourly rates as follows: These Rates are GST Exclusive:
$600.00 per hour
($60.00 per unit) plus GST
$450.00 per hour
($45.00 per unit) plus GST
$400.00 per hour
($40.00 per unit) plus GST
Paralegal/Legal Clerk/Legal Graduate:
$250.00 per hour
($25.00 per unit) plus GST
$150.00 per hour
($15.00 per unit) plus GST
21. Our charges are structured in 6-minute units. For example, the time charged for an attendance of up to 6 minutes will be 1 unit and the time charged for an attendance between 6 and 12 minutes will be 2 units.
22. We will increase our hourly rates in line with changes in the Consumer Price Index for the city of Sydney. We will do this annually on the first and subsequent anniversaries of the date of execution of this agreement. You will be given 30 days’ notice in writing of any foreshadowed changes to our hourly rates.
INDEPENDENT LEGAL COST CONSULTANT REPORT
23. At our discretion, our legal costs as they relate to work done on your behalf in the Class Action will be determined by an independent legal cost’s consultant in accordance with this Agreement. The cost of the determination will be charged and payable by you as a Disbursement. The determination of cost’s forms a part of the formal process required for Court Approval of Costs and Disbursements in class actions and form a part of the required Costs Report.
24. You have the right to elect not to have our Legal Costs determined by an independent legal cost’s consultant. If you elect not to have the Legal Costs determined, we require instructions from you to that effect in writing.
25. The determination process described at clauses 23 and 24 above do not impact on your Rights as described in clauses 4 and 5 of the “General Terms of Business” document that forms a part of this agreement.
EXPENSES, DISBURSEMENTS & OUTLAYS
26. You will be responsible for internal expenses which we incur in carrying out your instructions, our rates for internal expenses are:
of GST ($)
(a) Copying shall be charged at the shown fixed price per page
(b) Sending facsimile charges shall be charged at the shown
fixed price per page:
(c) receiving facsimile charges shall be charges at the show
fixed price per page
(d) Document Lodgement
(e) File opening fee
(f) searches and other paralegal attendances
(g) Binders for briefs to Counsel and experts shall be charged at the shown fixed price:
(h) Correspondence by email
(j) Telephone charges
(k) General services including:-
i. General Library Services;
ii. Secretarial and word processing;
iii. Clerical and accounting services; and
iv. Some computer services.
$275 per hour charged in 6- minute intervals
27. We may incur disbursements on your behalf which may include barrister’s fees, expert fees, search fees, filing fees, travel expenses, transcript expenses and witness expenses these will be advised to you prior to incurring them.by way of ongoing disclosure.
28. You acknowledge and agree that in prosecuting the claims:
a) N R Barbi may enter into costs agreements with other service providers including barristers and or other law firms under which fees may be payable and that all amounts liable to N R Barbi and are payable by you under this agreement.
b) N R Barbi in their discretion may assign or delegate the whole or any part of the claims for the Applicant or group members to another law firm to act on behalf of the Applicant or group members.
29. We confirm that upon engagement of barristers who will act for you in this matter we will provide details of their Fees by way of ongoing disclosure.
ESTIMATE OF LIKELY COSTS AND DISBURSEMENTS
30. As outlined above, class actions usually take place in two stages. In the first stage, the common issues stage, a court will determine the factual and legal questions that are common to all Group Members. In the second stage, the individual issues stage, the claims of each of the Group Members are determined.
31. As all the Group Members will be benefiting from the work performed for you in the first stage of the Class Action, they will also be liable to pay a proportion of any costs incurred in our acting for you as part of the work on the master file. The master file work is apportioned between Group Members. The costs of advancing your claim as a Group Member is encompassed within the master file work.
32. N R Barbi have performed work on the master file from the date of first instructions to investigate this Class Action. This work forms part of the master file work for which you and all of the Group Members have achieved a benefit.
33. You acknowledge liability for your share of these costs. You also acknowledge that the master file work incorporates work done in respect of Group Members in the common issues stage.
34. On the information currently available, we estimate the likely costs of the work in the common issues stage to be:
COMMON BENEFIT WORK IN THE MATTER
Professional Costs (Including GST)
Counsel (Including GST)
Outlays/Disbursements (Including GST)
Class questionnaire prep
Prelim investigations or disclosure
Interviews and statements (assume not all due to questionnaire – allow 500 members x 3 hours)
Prelim doc examination
Work on pleading
Expert reports (prelim findings)
Filing pleading; case management steps to hearing and judgement
Statement preparation (assume representative only)
Disclosure (own and other parties)
Management of experts – reports in response; conclaves, etc
Mediation (prep and appear)
Case management – court
Data/doc management for
evidence and trial
Client comms during hearing
Hearing prep generally
(research, confer counsel, witnesses and experts/doc management)
Hearing attendance (assume 20 day trial minimum)
(transcript review and confer counsel)
TOTAL - approx.
NOTE: All Common benefit work is apportioned as between the Lead Applicant and Group Members based on actual Costs and Disbursements incurred.
INDIVIDUAL LEGAL WORK STAGE 2
ESTIMATE (GST INC)
Counsel and Other Disbursements (GST INC)
In most of the cases we run, few if any individual costs are incurred because it is exceedingly rare for cases to progress to the point where individual claims are determined. If we were required to prosecute your individual case, our current estimate of costs associated with that work is set out below:
PREPERATION AND EVIDENCE
$4,400 - $7,700
SETTLING INDIVIDUAL DAMAGES CLAIM
$11,000 - $15,700
35. Please note that this is an estimate only and not a fixed quote. These estimates could vary substantially up or down. While the estimate is based on present information and instructions and our current understanding as to what services are required, our costs may exceed the estimate if further information becomes available or circumstances change which impact on these matters. In this event, we will provide you with a revised estimate as soon as practicable.
36. Some of the variables which may impact upon the estimate provided above include the following:
a. The approach adopted by the Respondent;
b. The stage at which the matter resolves; and
c. The complexity or uncertainty concerning legal issues affecting your matter and the common issues.
ESTIMATE OF COSTS RECOVERABLE OR PAYABLE
37. We hereby provide you with an estimate of the range of costs that may be recovered by you if you are successful in your claim and the range of costs that you may be ordered to pay if you are unsuccessful in your claim.
38. An order by a court for the payment of costs in your favour will not necessarily cover the whole of your legal costs.
39. Based on our instructions, our estimates of the range of costs which may be recoverable if you are successful in your claim is:
Estimate - (including GST)
Total professional costs and disbursements recoverable
Again, please note that this is an estimate only.
40. Based on our instructions, our estimates of the range of costs which may be payable by you if this claim is unsuccessful are:
Estimate- (including GST)
Total professional costs and disbursements recoverable
Again, please note that this is an estimate only.
a. All courts have discretion in respect of awarding costs. Costs are normally awarded in favour of the successful party in the proceedings.
b. Costs awarded in a party’s favour by the Federal Court are usually ordered to be payable on a Party & Party basis.
c. The estimated ranges of costs are prepared bearing in mind that only a certain percentage of your total legal costs are recoverable or may be payable.
d. Even if you are successful in the proceedings and have a costs order in your favour, it may still be necessary to seek to enforce such costs order through the court system if the Judge doesn’t fix them as noted in (b) above. This can be time consuming and costly. The possible costs associated with such potential enforcement proceedings are not dealt with in this document but will be disclosed should the relevant circumstances apply.
THIRD PARTY PAYER / LITIGATION LENDING
41. We confirm that we may apply on behalf of potential claimants (including you) and any other parties that may in our discretion be included in the action to third parties known as “Litigation Lenders” for funds in advance to finance the work, including professional fees and outlays. We do not guarantee that such finance will be offered and/or if offered, will be accepted by our firm on your behalf.
42. If an offer is made by a Litigation Lender and is accepted by our firm and by you, the Litigation Lender would meet all the costs of the litigation (including professional fees, Counsel’s fees, experts and reports). A Litigation Lender also provides an indemnity in case your matter is unsuccessful – meaning they cover any costs that may be ordered against you.
43. If an offer is made by a Litigation Lender and is accepted by our firm and by you, the Litigation Lender would provide a separate Litigation Funding Agreement which you would need to consider independently of this Agreement.
44. The person with primary responsibility for your matter is Natalie Strijland. You may also contact this person if you have any queries about our costs.
ACCEPTANCE OF OFFER
45. If you accept this offer you will have entered into a costs agreement with us. This means you will be bound by the terms and conditions set out in this document, including being billed in accordance with it. You may accept this offer by signing (including by DocuSigning) and returning a copy of this document to us.
COOLING OFF PERIOD
46. If you wish to terminate the conditional costs agreement, you may do within five (5) clear working days of signing it. The “cooling off” period ends at 5pm on the fifth business day after the day on which this conditional cost agreement was signed. If not signed, we will only charge you for the costs incurred for work done that was performed on your instructions and with your knowledge up to termination.
47. You acknowledge that you have been given the opportunity to request to view or receive a copy of the Lead Applicants Conditional Costs, Disclosure Statement, and Litigation Funding Agreement for which the terms of this Group Agreement Apply.
48. You acknowledge that the Laws applicable to the state of NSW will apply and you consent to this by executing this Agreement.
49. You acknowledge that before signing this costs agreement you have received, read and understood the following documents or sections thereof:
· Letter of Offer;
· Costs Agreement and General Terms of Business