State Government Attempts to Delay Major Class Action Brought by Businesses Impacted by Lockdowns

Shops on Sydney Road in Brunswick display signs informing customers of their closure in Melbourne, Australia on Aug. 5, 2020. Darrian Traynor/Getty Images

Businesses affected by Victoria’s infamous second lockdown may need to wait another three years for their class action lawsuit to be heard in court if a bid by the Victorian State government is successful.

This comes as a committal hearing is being heard in the Melbourne Magistrates Court to determine whether Victoria’s health department will face trial over alleged hotel quarantine failure.

Lawyers acting for small businesses argue (pdf) that the state government’s failed hotel quarantine program was the result of the state’s negligence in implementing effective infection and control measures that led to the state’s second wave, which then proceeded to the 112-day lockdown—devastating businesses and associated workers.

Lawyers acting for the Victorian State government want the case to be postponed until the current criminal case against the Department of Health is resolved. The lawyers argue that the state is facing “serious” charges related to the failed hotel quarantine program.

If the postponement is granted, the class action, which is open to any business with a physical premise in Victoria that experienced financial loss from the stage three or stage four lockdowns, could be delayed until 2025.

Approximately 1500 small businesses are involved in the class action. The lead plaintiff (pdf) is Keilor Park restaurant, 5 Districts NY.

“We have always said that this class action should be heard as soon as practicable, and many of our group members are hanging on by their fingernails,” said Damian Scattini, a partner of Quinn Emanuel Urquhart & Sullivan, who is acting for the small businesses, reported The Australian.

“We say that is a furphy. It’s the state of Victoria. Nobody’s liberty is at stake. At the end of the day, even a guilty verdict will result in an accounting entry from one government department to another,” Scattini said.

Scattini said that the only risk for the state government is reputational and that any parts of the defence that overlap with the current criminal case could be redacted and made unavailable to the public.

“Any perceived risk to the state of Victoria’s criminal prosecution can be managed by the court,” Scattini said.

The Epoch Times reached out to Quinn Emanuel Urquhart & Sullivan, lawyers acting on behalf of the affected small businesses, but did not receive a response by the time of publication.

The Epoch Times also reached out to the lawyers acting on behalf of the Victorian State government, Herbert Smith Freehills, who said they were unable to provide comment due to confidentiality and ongoing court proceedings.

Previous Attempts by State Govt to Throw Case Out

The Victorian State government has twice attempted to have this case thrown out of court—in December 2021 and April 2022—saying that it held responsibility for all Victorians, not just businesses and that the state had no duty of care to avoid economic loss when restrictions were imposed by the chief health officer under a discretionary power.

On Dec. 1, Victorian Supreme Justice John Dixon said the process during the hearing was “extremely slow” and booked the next court date for Dec. 12, when it will be determined whether the case will be delayed or not.

“I won’t be entertaining an argument that you need three more months,” Justice Dixon said, despite opposition from the Victorian state government’s lawyer.

“I feel the need to keep this moving,” Dixon said.

“Having read the submissions, I think there’s considerable traction in the proposition that this could be taken step by step rather than have it stayed.”

A separate class action by Victorians who lost work during the lockdowns is no longer going ahead following a challenge by the state government’s lawyer in the Supreme Court, reported The Age.

Bungled Hotel Quarantine Program

A five-week committal hearing to determine if Victoria’s health department will face trial over alleged hotel quarantine failures began on Nov. 18 at the Melbourne Magistrates Court.

Victoria’s Department of Health was responsible for the state’s first hotel quarantine program from March 2020 and July 2020.

The hotel quarantine program, known as Operation Soteria (pdf), was designed to prevent International travellers from spreading COVID-19 in the community by undergoing a “14 days enforced quarantine.”

However, 90 percent of cases in the state’s deadly second wave—that resulted in 18,000 new infections, 800 deaths and a lockdown that lasted 112 days—were traced back to six guards, a healthcare worker and an employee who contracted COVID-19 at the Rydges hotel on May 25, 2020.

The remaining 10 percent of cases were traced back to 26 guards and a department employee based at the Stamford from June 16.

In September 2021, Worksafe charged the Department of Health with 58 breaches of the Occupational Health and Safety Act after a 15-month investigation.

“In all charges, WorkSafe alleges that DOH employees, Victorian Government Authorised Officers on secondment, or security guards were put at risk of serious illness or death through contracting COVID-19 from an infected returned traveller, another person working in the hotels or from a contaminated surface,” according to WorkSafe statement.

Worksafe also alleges the department failed to provide security guards with face-to-face, expert infection prevention control training and written instructions on how to use personal protective equipment.

If found guilty, the state’s health department faces a possible total fine of more than $95 million (US$63.8 million).