Major COVID-19 lockdown class action to go ahead in Victoria

The Victorian government has failed in its bid to have a major COVID-19 class action thrown out of court, lawyers representing the plaintiffs say.

The class action, brought on behalf of retail, hospitality, beauty, and fitness businesses, claims the government’s mishandling of Victoria’s hotel quarantine program led to the state’s second lengthy lockdown in 2020, devastating businesses and resulting in widespread job losses.

Damian Scattini, a partner at law firm Quinn Emanuel, who is leading the action on behalf of businesses, said Justice John Dixon had allowed the case to proceed, despite attempts from the state’s lawyers to have it tossed out.

More than 1000 businesses have registered to take part in the class action, which is open to any traders that experienced a financial loss as a result of the restrictions.

Lead plaintiffs Keilor Park restaurant 5 Districts NY argue the government was negligent in its response to the pandemic, and had a duty to take reasonable care to ensure that effective infection prevention and control measures were implemented in hotel quarantine, but failed to do so.

Scattini said the program was “a disaster”, riddled with unqualified, poorly trained, and ill-equipped quarantine staff.

“Not training, not supervising and walking in and seeing guards with the fingers of their gloves cut off, so they can scroll on their iPhone and not wearing PPE, it’s a debacle, and it had an inevitable consequence, which was that the virus escaped,” he said.

“If the hotel quarantine program had been handled competently by the people in charge, there would not have been a second lockdown.”

He argued genomic sequencing at the time revealed the coronavirus outbreak could be traced back to quarantine staff breaching “well known and well understood” infection control protocols, and added successful programs in other states like Queensland and NSW showed the virus could be contained.

Victoria’s second wave claimed more than 800 lives and caused four months of tough restrictions, including a nighttime curfew, a widespread commercial shut-down, and a ban on leaving home for anything but exercise and essentials.

Scattini said some business owners had gone from earning $10,000 a week down to $50 while others were forced to cease operating completely while the restrictions were in place. Two years on, they were still struggling, and a class action was the avenue available for them to recover their losses, he said.

“Nothing will give business owners back the sleepless nights, but the negligence can and should be addressed, and business owners ought to be compensated,” Scattini said. “That’s what this class action is about, and we welcome the court’s decision, which allows it to go forward.”

The state government lodged an application to have the case thrown out in March last year.

Over two days in the Supreme Court, the state’s lawyers argued the government held responsibility towards all Victorians, including the ill and elderly, not just businesses.

They argued the state did not have a duty of care to avoid economic loss when restrictions were imposed by a chief health officer using a discretionary power.

Their bid failed in December and lawyers launched a second attempt to toss the case in April, which has now also failed.

A separate class action on behalf of people who lost work during the same COVID-19 wave led by Carbone Lawyers that was also challenged by the state’s lawyers in the Supreme Court is no longer going ahead.

Scattini said the government had been “dragging their heels, kicking and screaming” to kill the case from an early stage, but they would now be forced to answer in court.

“As we’ve shown, we are not going to give it away and the state of Victoria will have to meet our clients in court,” he said.

The Victorian government has been contacted for comment.

With Tammy Mills

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