By these somewhat adventurous claims, two plaintiffs, 5 Boroughs and Roberts, seek damages from the State of Victoria (Victoria) in separate proceedings for economic loss suffered as a result of the stage 3 and 4 lockdown restrictions on economic activity imposed during the second wave of the Covid-19 virus, alleged to have been caused by the State’s negligent conduct of hotel quarantine.
In respect of each plaintiff’s claim, the State applied for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic), contending that the claims have no real prospect of success, and, in the alternative, sought an order pursuant to r 23.02(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) striking out the whole of the statement of claim on the ground it does not disclose a cause of action.
The judgment dealt with these largely overlapping claims separately.
5 Boroughs put its claim as follows:
The defendants’ primary submission was that no duty of care of the novel type contended for arose in the circumstances, on the following grounds:
Over his 111-page judgment John Dixon J engaged in a thorough analysis of the underlying principles which pertain to the defendants’ grounds for dismissal.
For the purpose of this note it suffices to note that his Honour refused the application for summary dismissal but struck out the statement of claim pursuant to r 23.02, with leave to replead. That outcome followed his Honour’s analysis that, although the defendants had identified problems in 5 Boroughs’ case, the submissions did not demonstrate that the plaintiff’s claim is fanciful with no real prospect of success at trial, absent a detailed factual inquiry.
5 Boroughs therefore lives to fight another day.
Roberts purported to act for class members including affected businesses and affected employees who suffered psychiatric injury and/or income loss as a result of stage 3 and 4 restrictions. Roberts’ case was broadly overlapping to that brought by 5 Boroughs, and the defendants made similar submissions in pursuit of the same orders, being dismissal and strike out.
His Honour held that the more significant pleading deficiencies that Roberts’ case suffered meant that it was appropriate to order summary dismissal of the claim.
Those deficiencies included primarily:
although his Honour considered that the pleading suffered from various additional problems.
Supreme Court of Victoria, John Dixon J,
2 December 2021
First Plaintiff's Solicitors: Quinn Emanuel Urquhart & Sullivan;
Second Plaintiff's Solicitors: Carbone Lawyers;
Defendants' Solicitors: Herbert Smith Freehills;
First Plaintiff’s Funder: Regency V Funding Pty Ltd;
Second Plaintiff’s Funder: N/A
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