Their case is expected to be heard late next year. 

Fourteen abalone licence holders from the western zone, west of Warrnambool,  and the central zone, extending eastwards to Cape Otway,  have again engaged solicitors Maurice Blackburn in a class action.

Their earlier case against the state government was dismissed in the Supreme Court last month by Justice David Beach, who said “one can only speculate” how the disease spread.

The plaintiffs, who had sought $82 million in damages, were ordered to pay costs for the defendants.

Victoria’s former chief vet Hugh Millar and former Fisheries Victoria executive director Peter Appleford were blamed for failing to shut down an abalone farm west of Port Fairy, where the disease was found eight years ago.

Justice Beach found the plaintiffs failed to establish proof that the government employees had a duty of care to protect them from economic loss caused by the spread of the herpes-like virus among the wild abalone population along the coast. 

Appeal documents lodged with the court show the plaintiffs will challenge the ruling and argue again that Dr Millar and Dr Appleford had a duty of care and breached their responsibilities.

Despite the farm reporting the outbreak to the Department of Primary Industries in January 2006, it was allowed to keep pumping water into the Southern Ocean each day.

By March that year, the virus had spread quickly along the coast.

An abalone farm at Portland was also affected

Maurice Blackburn principal Jacob Varghese told The Standard a directions hearing was scheduled for May.

“The sooner the case gets up the better,” he said.

“Our clients were very disappointed with the Supreme Court decision in November and think there are good grounds for appeal.

“In a sense it’s an unusual case and an interesting point of law where a government has a duty of care.

“This disease cost the industry millions of dollars.

“We argue that the state knew of the virus and when it exploded had a duty of care to control it.

“Wild stock in the area west of Warrnambool was virtually wiped out and is now slowly recovering.

“Some divers had to move away from the industry because of lost income.

“There are 10 licence holders and about a dozen divers in the western zone and 30-plus licence holders and 30 divers in the central zone.”

After the November court decision the Port Fairy abalone farm operators said they felt vindicated.

“We vehemently deny that the source of the virus was from the farm,” said Mark Gervis, general manager of Southern Ocean Mariculture Pty Ltd.

“We believe that we have been just as much a victim of this disease event as the abalone divers having lost all stock on the farm and having to start from scratch.

“There are no winners when disease affect stock of any sort and the only winners from this action have been the lawyers.”

pcollins@fairfaxmedia.com.au