Judge blasts lawyers in abalone case

A Supreme Court judge has urged parties in an $82 million class action over the spread of a herpes-like abalone virus to "fight the case on a real battleground" and not get bogged down with "basic propositions" from expert witnesses.

A Supreme Court judge has urged parties in an $82 million class action over the spread of a herpes-like abalone virus to "fight the case on a real battleground" and not get bogged down with "basic propositions" from expert witnesses.

Fourteen abalone licence holders are suing the Victorian government over its alleged failure to control an outbreak of the disease in early 2006 that affected about a third of Australia's wild abalone industry and slashed the value of their licences from about $6 million to below $1 million.

Justice David Beach's fiery comments came while the plaintiff's counsel was questioning an aquatic disease expert, Dr John Jones.

David Curtain, SC, asked Dr Jones whether it would have been reasonable to expect the Victorian government to quarantine the farm where the virus originated.

The defence objected, sparking the ire of Justice Beach.

"Are we really going to sit here and argue about this?" Justice Beach said. "One is sort of reminded of one's school days when faced with a proposition like that, someone might have said 'duh'.

"Really is it in dispute? If you polled 22 million Australians and said, 'Listen, there was a really serious outbreak of disease, what do you reckon about whether you should quarantine the farm on which the disease is found?' You would get 22 million saying that's a pretty good idea.

"That doesn't mean your client loses, it just means as a proposition it's beyond argument."

Justice Beach said there seemed an "enormous amount" of expert evidence to be given about matters that "may not require very much expertise, if at all".

He said the defence's case hinged on whether Victoria's former chief vet, Hugh Millar, and the executive director of Fisheries Victoria, Peter Appleford, acted reasonably when deciding not to shut down Southern Ocean Mariculture, which unleased the herpes-like virus into the wild.

"At the end of the day Dr Appleford and Dr Millar will give their evidence as to their thought processes at the time, the steps they took, what they thought was reasonable to what they knew.

"That may provide them with a complete defence, it may not. But ... we can't sit here for days going through this sort of stuff when it doesn't seem of great significance". The court heard this week that the farm, located on a headland between two bays near Port Fairy, continued to pump 40 million litres of infected water into the southern ocean after reporting the outbreak to the Department of Primary Industries.

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