The team behind a Newcastle light rail class action filed a similar suit on behalf of Sydney traders in the NSW Supreme Court today.
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Mitry Lawyers and cafe owner and politician Angela Vithoulkas lodged the lawsuit on behalf of more than 60 Sydney business owners.
The move is an indication the law firm has secured third-party litigation funding for the action, something it also will need for the Newcastle action to progress.
Class action expert Dr Peter Cashman, the director of the University of Sydney’s Social Justice Program, told the Newcastle Herald that litigation funders were “not in the business of wasting money on losing cases”.
“No litigation funder would touch this without independent advice from pretty experienced counsel,” Dr Cashman said.
“If a funder is going to support it, and they do quite extensive due diligence, that always sends an interesting message both to the court and the other side.
“They know that this has legs, because the funders are prepared to finance it. They really are hard-nosed. They’re very risk-averse.”
Mitry Lawyers will argue that Transport for NSW “undertook the project in a manner which caused severe consequences and in a manner that could have been avoided”, according to a media statement.
“Those consequences caused undue nuisance upon business owners and landlords in the affected zones.”
Lawyer Richard Mitry said the loss and damage suffered by the businesses was “substantial and appreciably greater in degree than that suffered by the general public”.
Dr Cashman said the litigants would need to show that the government owed the traders a duty of care.
“It will certainly be of interest, but whether it has legal merit is the acid test,” he said.
“The problem is there’s a constraint on the extent to which the common law extends liability, because … there’s a question of whether they owe a duty of care.
“And, even if they did, there’s a question of whether they breached it ... I’m not sure of the facts as to whether or not they did in the sort of way that was unduly disruptive.
“There’s also these various statutory provisions that give some degree of, I wouldn’t say immunity from suit, but sometimes it’s often much harder to sue government entities and their subsidiary bodies than it is people who aren’t governed by particular legislation.
“I think it just raises some very interesting and possibly difficult questions.”
Dr Cashman, who has acted in several high-profile class actions throughout Australia, said he was not aware of a similar class suit over a government infrastructure project.
Ms Vithoulkas and Mr Mitry were in Newcastle this month signing up businesses for a separate class action.
They garnered 39 signatures in a day and expect to have more than 50.
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Ms Vithoulkas, a City of Sydney councillor who is running for the Upper House in next year’s state election, closed the doors on her 16-year-old George Street cafe, Vivo, on Friday after almost three years of light rail works.
She said businesses had begun to feel substantial downturn and difficulty from the moment the Sydney construction started.
“One business owner told us that it was as if a tap had been turned off, and I experienced that in my business, too,” she said.
“As small businesses we are absolutely committed to progress across the nation, but we should not have to pay for this progress with our livelihood and that of our families.
“I guarantee the premier or the prime minister wouldn’t like to close up shop in their business for a light rail that many believe doesn’t need to even be installed.”
