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Fresh material filed in the COVID-19 vaccine class action may be more polished than its previous five attempts, but it has only served to expose its flaws “far more clearly”, counsel for the Commonwealth has said.
Having refused to accept an 819-page statement of claim that was “dense and extremely difficult to follow”, Justice Anna Katzmann of the Federal Court of Australia granted one final opportunity for the applicants to fix their pleadings, despite “grave doubts” about their ability to do so.
According to the class action’s website, the group members – led by Anthony Rose, Gareth O’Grady and Antonio Derose – alleged the Commonwealth’s actions in advancing the acceptance and use of approved vaccines constituted negligence and/or misfeasance. This, they alleged, caused class members to suffer loss or damage.
Its sixth attempt at its pleadings was the subject of an interlocutory application before Justice Nicholas Owens, in which the Commonwealth applied to have the class action summarily dismissed on the grounds that it does not contain a “valid, proper cause of action in law”.
Tim Begbie KC, appearing for the Commonwealth, accepted the rewritten statement of claim has addressed the “essentially unintelligible and impenetrable” flaws identified by Justice Katzmann.
“We acknowledge it is a much more satisfactory document, [on a] grammatical and narrative and navigational level, but, unfortunately, what getting the drafting right has done is expose far more clearly that there was nothing in the original morass of pleadings that could amount to a proper cause of action,” Begbie said on day one of the two-day hearing.
More specifically, Begbie submitted that the material exposes an issue in how they have pleaded the state of knowledge held by four officers when making the vaccine decision – both in a primary claim and a “cascading series of alternatives, apparently conceiving every possible way a respondent might or might not have engaged in certain conduct”.
“Regrettably, that is the foundation of all the misfeasance claims, the very starting point is the idea of knowledge, [and] it is not pleaded properly.
Referring to the “heart” of their pleadings – which he said is the idea the four officers “come under some generalised duty to act for the public good” – the Commonwealth’s counsel said that “no more concrete obligation has been identified in the current pleading than was ever identified before [on this] generalised idea of a duty to act in the public good”.
“Your Honour will need to step back and think about the proposed pleading in this light: has the level of dishonest abuse of power been articulated with the provision and clarity that would allow each of these four to understand exactly what is alleged against them, and the answer will remain – for all the reasons Justice Katzmann identifies – ‘no’,” Begbie said.
The following morning, after lawyers for the class action handed up a new document, their counsel invited the court to infer the Commonwealth, in the absence of contrary evidence, was aware – and kept abreast of – data emerging about the vaccine during the decision making.
There was some confusion about this new document, with the Commonwealth initially assuming it was handed up as an alternative to the statement of claim Justice Owens was asked to rule on.
It also appeared to drop the action against the four individual officers and advanced a case against the Commonwealth as the sole party.
Dominic Villa SC, for the class action, said it was produced for the purpose of the court dealing with the dismissal application.
“One consideration that would factor into that would be whether there is any utility in not doing so, [and] effectively would Your Honour be satisfied we could do anything different that would warrant keeping the proceedings on foot, so it is put forward on that basis,” Villa said.
Justice Owens has reserved his decision.
