Most Read Contributor in Australia, September 2016
7 years after the outbreak of a virus called the Abalone Viral
Ganglioneuritis (AVG) that decimated as much as
one third of Australia's abalone, an $82 million class action
brought by abalone licence holders and divers is currently being
heard in the Supreme Court of Victoria. The action has been brought
against the State of Victoria over its alleged failure to control
the virus. The virus originated in late 2005 at an aquaculture farm
trading as Southern Ocean Mariculture Pty Ltd
(SOM) near Port Fairy in south-west Victoria and
spread into the open ocean in early 2006. AVG is a herpes-like
virus which causes inflammation of the nervous tissues in the
abalone with the death rates from the virus normally ranging from
90% to 100%.
The claimants allege that the Victorian State Government's
Department of Primary Industries (DPI) was the
entity responsible for regulating the aquaculture and wild harvest
abalone industries. This regulatory role included responding to,
controlling and managing emergency aquatic disease situations. The
claimants also allege that the DPI acted negligently in failing to
require SOM to do more to eradicate the virus from its abalone
farm, halt operations or to stop discharging effluent water into
the ocean during the relevant period.
The claimants to the class action are seeking compensation for
damages and losses suffered because of the outbreak of the virus,
which allegedly caused a reduction of the permitted annual abalone
harvest quota, decreased abalone sales, and reduced profits and the
value of holding an abalone licence.
The plaintiff's statement of claim states that the DPI owed
a duty of care to the Victorian abalone fishery (in this case, the
definition of fishery would apply to the licence holders) due to
the abalone being part of an area that was under a management plan
for which the DPI was responsible. The management plan was required
to identify measures to minimise the impact on the environment,
control disease and protect genetic integrity of abalone, and
manage the possible transfer of disease and genetic material to the
wild. Under the Fisheries Act 1995 (Cth)
(Act), the DPI, through its Secretary, has the
power to impose conditions on aquaculture farms, such as SOM.
The plaintiff contends that the DPI breached its duty of care by
not acting in the manner permitted under the Act when it knew,
ought to have known, or became aware that the mortalities of
abalone in the SOM farm were occurring, and that the later was
occurring because of the AVG disease. The plaintiff's claim is
that the breach of duty caused AVG to spread causing loss and
damage as described above.
The DPI claims that there is no direct evidence as to when the
virus breached the containment of the farm and that in taking
enforcement action it had to weigh up the possibility of an
outbreak in the wild versus shutting down the farm, which would
have caused instant loss and the death of approximately one million
The virus was first reported in Australia on December 2005, when
several abalone aquaculture farms in western Victoria, including
SOM, experienced unusually high levels of abalone deaths. Although
the Victorian Government began investigations at this time and
declared the virus an "exotic" disease under the
Livestock Diseases Control Act 1994 in February 2006 (once
AVG was identified as the cause of the virus outbreak), the DPI
continued to allow the farm to pump millions of litres of virus
infected water into the Southern Ocean each day directly onto a
wild abalone habitat. The virus spread more than 100 kilometres
along the coast from Port Fairy to Cape Otway between March and May
Once the virus was detected, abalone licence holders saw their
catch drastically drop by as much as 90%.
The virus-affected area accounted for approximately 32% of
Australia's abalone exports before the outbreak. Most of those
exports went to Asia, where abalone is considered a luxury
The Victorian Government has declined to comment, saying the
matter is now before the courts. However, at the time of the
outbreak of the virus, the current Victorian Premier, Dr. Denis
Napthine, accused the then Labour Government of an "absolute
failure" to control the epidemic. Dr. Napthine compared the
epidemic to the foot-and-mouth disease of the abalone industry. He
also pointed out that it would take as much as 10 or maybe 15 years
for the industry to recover from this virus. Experts, however,
cannot predict if and when abalone will repopulate to the point
where the industry will recover.
An in-principle settlement has been reached between members of
the class action and SOM, however the terms of the settlement are
confidential. The settlement does not affect the class action
against the DPI.
We will keep you updated in relation to the class action against
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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