Pierce the veil …

In corporate law there is something called the veil of incorporation that suggests there is a difference between a corporate body and its shareholders. Okay – this is a useful and important legal fiction. But … it has its limitations:

The health, economic and political fallout from the spike in Victorian COVID-19 cases are immense. The legal fallout could be just as significant. The hotel quarantine fiasco is likely to lead to the largest class action in Australian history, one that effectively could bankrupt the state. It threatens to render the Robodebt case to being a footnote in litigation textbooks.

Given the glaring errors made by the Victorian government that have resulted in the state experiencing a second, deadlier coronavirus wave and the intense suffering that this has inflicted on many Victorians, it is almost inevitable that a negligence action will be launched.

It is all very well and good suing the state of Victoria. I encourage people to do so.

But … Individual decision makers are not likely to be sued. This is the problem – the biggest victims of Victorian government incompetence are Victorians.

I think that a future Victorian government should allow individual decision makers to be sued for the decisions that they have made. Individuals should not be allowed to shelter behind sovereign immunity when their decisions have been clearly incompetent.

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38 Responses to Pierce the veil …

  1. @Sinc

    The die has been cast.

    Wait for the WA style legislation suppressing natural justice rights, freedom of information and other sovereign incompetence protections a-la Western Australia.

    After all, successfully suing the State of Victoria for bureaucratic and political incompetence will send the state bankrupt. Or at least faster bankrupt than leaving the current people in office.

    If there is no mechanism for a Governor to dismiss an incompetent government what is the point of having a Governor (and the associated expenses)?

  2. Texas Jack says:

    Why would anyone sane with half a brain enter politics under your scheme, Sinc?

    It’s hard enough watching the Muppets we already have, and it’s not like voters don’t need to feel the decision they make when voting.

  3. duncanm says:

    Victorians elected their leaders.

    Who made the original mistake ?

  4. Roger says:

    If there is no mechanism for a Governor to dismiss an incompetent government what is the point of having a Governor (and the associated expenses)?

    With modern governments it’s best to talk of degrees of incompetence rather than competent/incompetent.

  5. Rebel with cause says:

    At this point, bankrupting the state of Victoria through legal action would only be a hastening of the inevitable.

  6. feelthebern says:

    Hopefully Victoria rushes through legislation banning such law fare.
    The governor will be on stand by to do their thang.
    Disaster averted.

  7. Mater says:

    I tend to agree, Sinc, but it needs to include some latitude based on who knew what, and when. Nothing will be done if people are too busy covering their arses.

    However, when the incompetence is so blatant, yes.

    After all, at the merest glance, who would appear to be most suitable to run a quarantine operation. The ADF who are experts in NBC (Nuclear, Biological & Chemical) warfare, or security companies whose most relevant claim to fame is confiscating six packs from punters entering the MCG?

    Fry them in hell.

  8. Rafe Champion says:

    That is the principle that should apply to the individuals who gave the advice that resulted in the funding of RE that could end up killing the grid.

  9. Greg says:

    Perhaps voters could be sued for electing Labor?

  10. H B Bear says:

    Too late – most legislation contains a clause specifically exempting the Crown. Good luck getting rid of that after all this time unless your name is Oliver Cromwell.

  11. Pyrmonter says:

    The ‘corporate veil’ essentially allows owners and managers to avoid liability where an under-funded company fails to meet its liabilities: the former through limited liability and the use of nominally capitalised companies; the latter because they act as agents for their incorporated employer, and while agents may be co-wrongdoers, they are rarely liable for mere performance of their principals obligations.

    In the ordinary course, an employee’s employer is vicariously liable for the employee’s wrong (Lister v Romford Ice): the outcome of allowing employees to be sued would be to increase the liabilities of the Victorian state – not sure what that would achieve. The exception to vicarious liability is a ‘frolic’ outside the scope of employment; but which decisions would be so described? Even the most oppressive – the curfew and curtailment of outdoor exercise – have some claimed connection with reducing contact and therefore reducing spread.

  12. cuckoo says:

    It is all very well and good suing the state of Victoria. I encourage people to do so.

    That’s when Daniel Andrews will pass Victoria’s version of the Clive Palmer Act.

  13. Chris M says:

    Just seize all the assets of the Vik Labors leaders & their immediate family plus the company that messed up the quarantine and leave it at that. Being pennyless will wake you up and has similarity to the many victims.

  14. Suburban Boy says:

    Individuals should not be allowed to shelter behind sovereign immunity …

    There is no such thing as “sovereign immunity” in domestic law (different situation in international law). Absent a Palmer-type law, the Commonwealth, the States and the Territories can all be sued in tort, in contract and otherwise in almost all circumstances that other entities can be sued (yes, there are some narrow carve-outs).

    That, of course, is why WA’s Palmer law is so outrageous – it simply has not been done within living memory by an Australian polity.

  15. Diogenes says:

    That’s when Daniel Andrews will pass Victoria’s version of the Clive Palmer Act.

    NSW was clever enough to put immunity into Public Health Act 2010 No 127 Part 9 Division 3

    32 Exclusion of liability of the State and others
    (1) This section applies to civil proceedings for damages or other compensation brought against the State or any authority of the State.
    (2) Damages or other compensation is not payable in any such civil proceedings to which this section applies to the extent that the claim is based on alleged negligence, defamation or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, in good faith any function under this Act.
    (3) This section does not affect any entitlement to compensation expressly conferred by this Act.

    and

    133 Exclusion of personal liability(cf 1991 Act, s 77)
    (1) A person who exercises a function under this Act in good faith and for the purpose of executing this Act is not subject personally to any action, liability, claim or demand based on the exercise of the function.
    (2) Without affecting the generality of subsection (1), a person is not subject personally to any legal proceedings, civil or criminal, for sending, giving or serving, in good faith, without negligence and for the purposes of this Act, a certificate, notice or other communication.

  16. stackja says:

    John Cain, Rob Jolly, Joan Kirner, Rob Hull…

  17. Perfidious Albino says:

    ‘…without negligence…’ is the kicker in that legislation Diogenes.

    Most indemnities have a carve out for negligence, ‘gross’ or otherwise

  18. John snowy Bowyer says:

    All this talk of legal action but surely “Pestilence” absolves the insurance industry and that will also get most off the hook?
    As has been said many times WA’s law is obviously unconstitutional and if only we had a proper legal and media this would never have even got up. As it is the present members of the legal profession are totally corrupt and only eclipsed by our media in dishonesty, greed and corruption?

  19. Roger says:

    Too late – most legislation contains a clause specifically exempting the Crown. Good luck getting rid of that after all this time unless your name is Oliver Cromwell.

    Bear, the incompetence of the Victorian government is such that they negelcted to include such a clause in the relevant workplace deaths legislation.

  20. Bulldog says:

    They didn’t exactly hide their incompetence when they stood for election. You get the government you deserve.

  21. Za Barr says:

    As the local governance ,State and Council moves itself further into risk taking on behalf of voters who will bear all the costs of their incompetence surely the state or council must require that the elected members are accountable with their personal financial assets hit first in the financial melee that is yet to land. Only zero interest rates are keeping these western welfare drongo zombie councils afloat. By any reasonable accounting standard most are bankrupt and barely solvent. All are taking powers unto themselves well beyond their skill set and their answer to mask their incompetency is to raise costs , fees , imposts, taxes ad nausea to cover the sorry story. What to do. Limit their powers. Prescribe their abilities to recover from citizens and force them to sell assets down. If we do get fewer people willing to stand because it carries personal risk to them then the busybody brigade may well have to produce wealth rather than consume others wealth.

  22. Tim Neilson says:

    Why would anyone sane with half a brain enter politics under your scheme, Sinc?

    And that would change things in Victoria exactly how???

  23. Kev from Canberra says:

    …the state experiencing a second, deadlier coronavirus wave…

    What bullshit. Not a second wave. Not deadlier.

  24. Petros says:

    At least can we have it that if governments are going to involve themselves in businesses then they should be subject to the same standards and laws as a business would?

  25. Wallace says:

    There are two reasons for the troubles.
    There are more people than others who perceive that no matter what, they will get more largesse from the left than elsewhere.
    There is a complete lack of a statesman or even a leader on the right to get any message across.
    It will get worse. Belt and road, compliant media, greens, borrowings, dictatorship etc.
    Escape now to a brighter future
    Where? Dunno.

  26. David says:

    The biggest mistake the Victorian and any other government made is actually claiming to be able to beat the virus. They over promised and under delivered.

  27. theleftfootkick says:

    We here in Victoria already have a pseudo dictatorship, one that is protected by Unions with there almost limitless resourse of funds via there financial activities et~all. Getting rid of the Andrews government, no chance in this socialist State. People complain about the Liberals etc, they are simply paupers these days compared to Labor, and will not be able to put up any real prospect of defeating Labor in election any time soon.

  28. Tim Neilson says:

    The biggest mistake the Victorian and any other government made is actually claiming to be able to beat the virus. They over promised and under delivered.

    Very true. Megalomania and incompetence aren’t a good mix.

  29. Texas Jack says:

    Tim Neilson

    Why would anyone sane with half a brain enter politics under your scheme, Sinc?
    And that would change things in Victoria exactly how???

    Good point, Tim. I guess I live in too much hope. I could imagine a Tim Neilson doing a terrific job in politics, and I could vote for him, but I doubt entering that game would be made more attractive given an increase in personal-risk as suggested by Sinc. That’s all…

  30. Professor Fred Lenin says:

    It must be a good feeling to know that if you make a grossly incompetent decision which has catastrophic human and fiscal,results you can then legistlste to stop any punishment you deserve . Sort of like the “Divine Right of Kings “ . Forgetting thst the last king of Britain who tried that caper has his head separated from his body by an axe . Its a bit like the Mafia lawyers drafting laws for the government .

  31. Leo G says:

    Perhaps senior government officials should be required to privately insure themselves against public liability negligence claims.

  32. Bob in Castlemaine says:

    No worries, Dan will simply enact legislation preventing aggrieved citizens suing the government of Danistan. A la the McGowan Labor government in WA.

  33. Ozman says:

    Class lawsuits on behalf of aggrieved family members on the way against Scott the Dolt and Devious Dan.
    Clive Palmer will have plenty of ammunition against the Clown McGown, who claimed that hydroxychloroquine was useless.

    Hydroxy-chloroquine has been recommended as the use for preventive treatment of healthcare workers and individuals in close contact of coronavirus patients.

    India approves hydroxychloroquine orders for three countries

    Minnesota rescinds ban on hydroxychloroquine

  34. On Tilt says:

    I have been saying for years that a similar regime to the Directors Penalty regimes which are part of ASIC need to apply to public servants and statutory authorities. I just have not had the means nor understanding to get this concept on the political agenda.

    I am assured that where personal liability is involved the more egregious decisions emanating from the un – elected public service will be significantly curtailed.

  35. Professor Fred Lenin says:

    The DANDEMIC stuff up will make the politicians make retrospective laws to ensyre they get awat with their incompetence . They will probably be re elected ,there are enough indoctrinated tossers about to encure that .Watch the Parliament comeback to cover their asses and those of the public employees ,even the” indigenius
    Security “gang will be included ,they after all know where the bodies are buried .
    I laughed at the “Indigeinious Security Company “ now theres an oxymoron if I ever hesrd one HaHa .
    DAn DAN the Dandemic man .

  36. vicki says:

    Robert Gottliebsen has also speculated regarding legal liability of Dan’s government:

    Dan Andrews’ Victorian cabinet exposed to industrial manslaughter law over COVID-19 deathsROBERT GOTTLIEBSEN
    Follow @BGottliebsen

  37. Squirrel says:

    “But … Individual decision makers are not likely to be sued. This is the problem – the biggest victims of Victorian government incompetence are Victorians.”

    Indeed, but litigants and courts tend to seek out the deepest pockets, so unless decision makers happen to have private wealth running into nine or ten figures, it’ll be the gummint that gets sued.

    That said, getting dismissed for incompetence (not being retrenched/retired with benefits, possibly including a golden handshake) should be far more common, and in cases of clear, wanton/craven incompetence (or worse) getting the boot, and losing the employer-financed component of any defined benefit pension should also be part of the penalty.

  38. Scotty says:

    They are personally liable (ironically) under their own Industrial manslaughter leg

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