A class action expert from the University of Sydney has warned Newcastle and Sydney business owners involved in light rail class actions not to expect the state government to “roll over”.
About 60 Sydney traders filed a lawsuit in the Supreme Court last week, prompting Transport Minister Andrew Constance to say he was “sad that it has got to this”.
“I have to acknowledge it has been incredibly hard on a lot of business people who have been subjected to lengthy closures outside of their business doors as a result of that construction,” Mr Constance said.
Despite the minister’s sympathetic tone, class action expert Dr Peter Cashman told the Newcastle Herald that the government would likely mount a vigorous defence.
“In my experience, every defendant in every class action fights very vigorously to the death, and sometimes more so governments when they’re not paying with their money,” he said.
“Very few class actions, particularly one that has significant impact on other potential claims, you wouldn’t want to go into it assuming they’re going to roll over.”
The organisers of the Sydney class action, politician Angela Vithoulkas and Mitry Lawyers, came to Newcastle last month and signed up 39 business owners for a similar lawsuit.
In the Sydney case, traders argue the government has breached its duty of care to the traders by the manner in which it has conducted the construction project.
Dr Cashman said calculating individual traders’ losses with a before-and-after analysis of tax returns would be the “easy part” of the Sydney action and the proposed Newcastle lawsuit.
He expected the government would argue it was not under a duty of care, and “even if we were, we didn’t breach it, because we took appropriate steps at our expense to facilitate access”.
“There’s [also] a broader public interest question about public transport,” Dr Cashman said.
“[The government] say they’re accelerating the progress of it. Whether that’s true or not, I don’t know.
“They also say the shopkeepers will be better off because of the increase in the traffic. Whether that’s true as a matter of fact, I don’t know.
“So there are some quite difficult and disputed questions of fact that need to be addressed, leaving aside the legal hurdle that needs to be overcome.”
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