Cotterill v Romanes (Ruling No 1)

[2021] VSC 234

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03946

KERRY COTTERILL (and others according to the Schedule)	Plaintiffs
v
FINN ROMANES (in his capactity as the Deputy Public Health Commander)	First Defendant
BRETT SUTTON (in his capacity as Chief Health Officer)	Second Defendant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2021
DATE OF RULING:	30 April 2021
CASE MAY BE CITED AS:	Cotterill v Romanes (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2021] VSC 234

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PRACTICE AND PROCEDURE – Removal of certain plaintiffs from proceeding where no longer common question of law or fact – Supreme Court (General Civil Procedure Rules) 2015 r 9.02, r 9.06 – First plaintiff in current proceeding seeking declarations that certain directions issued under the Public Health and Wellbeing Act2008 were ultra vires on basis they impermissibly burdened the implied freedom of political communication in the Commonwealth Constitution – Second and third plaintiffs do not wish to maintain existing challenge and foreshadow challenge to validity of Public Health and Wellbeing Act2008 – Palmer v Western Australia (2021) 95 ALJR 229; [2021] HCA 5 referred to.

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

HIS HONOUR:

1. On 15 October 2020, the first plaintiff and the second plaintiff commenced a proceeding by originating motion, seeking declarations that certain directions issued under the Public Health and Wellbeing Act2008 (the ‘Act’) were ultra vires on the basis that they impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution.

1. On 5 November 2020, an order was made permitting the third plaintiff to be joined to the proceeding and for the originating motion to be amended accordingly.

1. The bringing of a single proceeding by two or more plaintiffs is authorised in certain circumstances by the Supreme Court (General Civil Procedure) Rules2015 (the ‘Rules’). Rule 9.02 relevantly provides that two or more persons may be joined as plaintiffs in any proceeding where, if separate proceedings were brought by them, some common question of law or fact would arise in all of the proceedings and all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions. At the time of the commencement of the proceeding and the joinder of the third plaintiff, there were common issues of fact and law, the same relief was sought by each plaintiff and they had common representation. The joinder of the three claims was convenient and appropriate. No objection was taken by the defendants to the joinder of the three plaintiffs to the single originating motion.

1. On 6 November 2020, the High Court published orders in