Legal Research
Cases
Cotterill v Romanes

Cotterill v Romanes

Case [2021] VSC 498 17 August 2021

Judicial Review

Standing

Implied Terms

Legitimate Expectation

Constitutional Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03946

BETWEEN:
KERRY COTTERILL	Plaintiff
- and -
FINN ROMANES (in his capactity as the Deputy Public Health Commander)	First Defendant
- and -
BRETT SUTTON (in his capacity as Chief Health Officer)	Second Defendant

---

JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 July 2021 and 2 August 2021
DATE OF JUDGMENT:	17 August 2021
CASE MAY BE CITED AS:	Cotterill v Romanes
MEDIUM NEUTRAL CITATION:	[2021] VSC 498

---

JUDICIAL REVIEW AND APPEAL – Constitutional Law (Cth) – Implied freedom of communication about governmental or political matters in the Commonwealth Constitution (‘implied freedom’) – Plaintiff seeking declarations that certain directions under the Public Health and Wellbeing Act 2008 given in context of COVID-19 pandemic were ultra vires on basis they impermissibly burdened the implied freedom.

JUDICIAL REVIEW AND APPEAL – Directions require persons to stay home and not leave other than for a permitted reason – Limitations on public gatherings – Whether infringement determined by reference to authorising provisions of the legislation or the directions – Proper level of analysis – Validity of legislation in all its potential operations – Whether Public Health and Wellbeing Act burdens the implied freedom – Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance – Palmer v Western Australia [2021] HCA 5 applied.

PRACTICE AND PROCEDURE – Standing – Whether plaintiff has standing to bring claim in relation to directions after they cease to be in operation – Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 considered – Standing established – No discretionary reason to stay or dismiss proceeding.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Foley with Mr J Tito and Mr MQ Nguyen	Smith & Tapper Criminal Lawyers
For the Defendants	Mr A Pound SC with Ms F Gordon and Ms M Narayan	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

At some point in early 2020, the COVID-19 virus entered the Australian community. COVID-19 is a highly infectious disease that has the potential to result in significant illness or death in humans who are infected. It is transmitted from person to person via airborne or aerosol particles exhaled from an infected person, and inhaled or introduced through contact with contaminated surfaces by a person who is susceptible to the disease. The disease has an incubation period of a few days, but a person may be infectious before the onset of symptoms. Once it takes hold within a community, the rate of infection may increase exponentially.

There have been a variety of responses from both the State and Commonwealth governments to COVID-19. They have included encouraging and educating members of the community about the need for hygiene (eg. frequent hand washing), social distancing, and the wearing of face masks. They have also involved, at the Commonwealth level, closing or heavily restricting access across the international border, so as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cotterill v Romanes

Details

AGLC: Cotterill v Romanes [2021] VSC 498
Case: [2021] VSC 498
Decision Date: 17 August 2021

CaseChat Overview and Summary

The case of Cotterill v Romanes involved a plaintiff challenging certain directions issued under the Public Health and Wellbeing Act 2008 in the context of the COVID-19 pandemic. The plaintiff sought declarations that these directions were beyond the powers of the defendant and thereby invalid as they unjustifiably restricted the implied freedom of communication in the Commonwealth Constitution. The dispute was heard and determined by the Federal Court of Australia.

The court had to address whether the directions, which required individuals to stay at home and restricted public gatherings, were beyond the powers of the legislation, and if so, whether they unjustifiably burdened the implied freedom of communication. The key legal issue was the proper level of analysis to determine whether the legislation and the directions imposed an impermissible burden on the implied freedom. The court had to decide whether the burden should be assessed based on the authorising provisions of the legislation or the directions themselves. Additionally, the court had to consider whether the legislation served a legitimate purpose and if the provisions were suitable, necessary, and adequate in the balance of competing interests.

In its reasoning, the court applied the principles established in Palmer v Western Australia, considering the validity of the legislation in all its potential operations. The court found that the implied freedom was not unjustifiably burdened, as the directions were proportionate and necessary in the context of a public health emergency. The court also determined that the plaintiff had standing to bring the claim despite the directions having ceased to be in operation, following the principles in Australian Conservation Foundation v Commonwealth. The court found no discretionary reason to stay or dismiss the proceeding.

The court ultimately dismissed the plaintiff's claims, holding that the directions were within the powers of the defendant and did not unjustifiably burden the implied freedom of communication.

Orders