Dear Colleagues;

Normally I wouldn’t bother your inboxes with a trial level decision, but I think this one is worth you knowing about. It certainly escaped me for some reason when it first came out, though others may have noticed it. In a lengthy decision by John Dixon J in the Victorian Supreme Court, Roo Roofing Pty Ltd v The Commonwealth of Australia [2019] VSC 331 (31 May 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2019/331.html , his Honour considers whether the Federal Government owed a duty of care to small businesses in the “home insulation” sector relating to the way that they managed the Home Insulation Program, which was a large splash of case designed to provide a stimulus to counter the effect of the Global Financial Crisis.

Perhaps not surprisingly, he finds no duty was owed, in an interesting application of the principles relating to economic loss alleged to be caused by government policies, and taking into account various “salient features”. Australian colleagues will know that this episode is best known for the way it was so poorly managed that a number of roof installers were injured or killed, in part due to the poor governance by the Commonwealth. This explains why his Honour, going on to consider other elements of negligence in case he is wrong on the duty point, found that in certain specific areas he would have found breach of duty by the Commonwealth if he had found a duty. In this part of the judgement there is an interesting comment on the “social utility” criterion for breach in Australian civil liability laws (see [788])- though it turns out (which I had not realised) that if the place of a tort is the ACT, then that Territory’s civil liability laws do not apply to actions against the Commonwealth- see [768]. Finally, he ends up by concluding that, despite the breach, there was no causation of the alleged economic loss. As I say, a long decision, but interesting at a number of points, especially given that most of the relevant politicians and high level public servants (including the former PM, Kevin Rudd) gave evidence at the trial.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, Master of Laws, Master of Environmental Law

Faculty of Business and Law

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T: +61 2 49217430

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Blog: https://lawandreligionaustralia.blog

 

 

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