Gordon Legal considers suing over alleged Robodebt misfeasance in public office
Fresh legal action on behalf of the debt scheme’s victims who suffered the most egregious harm could be launched within weeks, with former ministers including Scott Morrison in the firing line.
The law firm that led the $1.8bn Robodebt class action is potentially weeks away from launching a new case against former Coalition ministers and senior public servants, with lawyers arguing victims who suffered really egregious harm have not yet received proper justice.
Gordon Legal partner Peter Gordon told The Australian he was considering filing action under the tort of misfeasance in public office, and was exploring other torts, in order to claim damages for victims who experienced indirect financial losses and pain, suffering and distress.
Robodebt Royal Commissioner Catherine Holmes SC’s scathing report published on Friday found “elements of the tort of misfeasance in public office appear to exist”, which has been seized on by Government Services Minister Bill Shorten.
Gordon Legal has written to Anthony Albanese, Attorney-General Mark Dreyfus and Mr Shorten inviting them to discuss the potential legal action, which Mr Gordon said could be weeks or months away.
“There are some people (Robodebt victims) who had got job offers in a different town but all of a sudden had an $11,000 debt they had to repay and couldn’t afford to make a trip to start up a new job. They lost wages as a result of that but you can’t claim those wages in a restitutionary damages claim (as per the Robodebt class action),” Mr Gordon said.
“The tort of misfeasance in public office offers broader categories of damage – it’s known in law as an intentional tort. The entitlement to damages flows automatically from proof of the occurrence of the tort but it also involves the ability to claim damages for consequential economic losses of the kind I’ve just described.
“It enlivens rights to claim damages for pain and suffering and distress. It also enlivens claims for punitive damages, which are damages which of their nature are to punish a defendant for reprehensible conduct and to send a message to the community that wrongdoing doesn’t pay.”
Mr Gordon said lead applicants in the original class action were among those who had approached Gordon Legal to investigate whether other legal rights might be available to them.
“In order to properly plead a claim in misfeasance in public office, you would need to both name and join as defendants to the action those office holders who it is alleged were responsible for the misfeasance,” he said.
“We think that it is the law that the Australian government is vicariously liable for such misfeasance, as may be proven, for two essential reasons. One is that all of this activity was in pursuit of a government purpose or policy,” Mr Gordon said.
“The second factor is this was not the misfeasance of one person, but a whole series of people working jointly and cooperatively towards that government purpose.”
While Gordon Legal would not name the possible defendants in a future case, Scott Morrison, Alan Tudge, Christian Porter, Stuart Robert and former Department of Human Services secretary Kathryn Campbell were among those most criticised by the royal commission.
All four former Coalition ministers strongly reject the commission’s adverse findings about their role in the Robodebt scheme.
Mr Shorten has warned the former ministers weren’t “out of the woods”.
“I’ve watched the (former) Coalition ministers say that merely because they haven’t been referred to a criminal body or to some other regulatory authority, that somehow it’s given them a clean bill of health,” Mr Shorten said on Tuesday.
“I just think that there’ll be some victims of Robodebt who’ll be seeking legal advice. If the Commissioner has said that on its face the elements to constitute this tort of malfeasance of public office have been met, I suspect that there will be some individuals who will seek legal advice and they may well seek a remedy of suing the individual former ministers.”
Liberal shadow cabinet minister James Paterson said what action individuals chose to take as a result of the royal commission was a matter for them.
“The entire Robodebt affair is an incredibly regrettable event. It should not have happened and it’s important that the royal commission has made some substantial recommendations about ensuring that it does not happen again,” Senator Paterson said.
“We’ve welcomed the report and apologised to the victims of Robodebt and we’ve taken it very seriously. If the government wants to bring forward measures to address it to prevent it from happening again, we will consider that in a bipartisan way.”
Mr Tudge referred to the statement he released on Friday, which said his legal team had not identified any basis for which any civil or criminal prosecution could successfully be made against him.
Mr Robert said he sought legal advice about the Robodebt scheme after 46 days in office following the 2019 election and, when the advice was returned, asked for an urgent expenditure review committee meeting to shut the program down.
“If anyone seriously thinks I could have moved faster they are kidding themselves,” he said.
Mr Porter’s spokesman also referred The Australian to his Friday statement, saying he acted in good faith and on departmental advice.
“The evidence before the royal commission was that he was not informed that there was any issue as to the lawfulness of the Robodebt scheme, he asked questions of the department and was assured that there was a sound legal basis,” the spokesman said.
Mr Morrison was also approached for comment.
The landmark class action brought by Brett Cattle Company against former Labor agriculture minister Joe Ludwig over the live exports cattle ban marked the first time an Australian minister had been accused of misfeasance in public office.
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