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 Palmer v Western Australia.  That proceeding involved a challenge to the constitutional validity of directions closing the border between Western Australia and other states under the Emergency Management Act2005 (WA). The orders in the High Court took the form of answers to questions stated for the opinion of the Full Court of the High Court. In the answers given by the High Court, it was stated that the provisions of the Emergency Management Act authorising the border closure directions complied with the constitutional limitation contained in s 92 of the Constitution. The High Court further said in the answers given that the exercise of the power given by those provisions to make the relevant paragraphs of the directions did not raise a constitutional question. As no issue had been taken in that proceeding as to whether the closure directions were validly authorised by the relevant enactment, no other question remained for determination by the High Court. The High Court published reasons for its decision on 24 February 2021.[1]

   [1](2021) 95 ALJR 229; [2021] HCA 5 (‘Palmer’).

1. Returning to the chronology in this Court, on 11 November 2020, an amended originating motion was filed, brought in the name of each of the three plaintiffs. The relief sought was declarations that certain directions were invalid on the basis that they were ultra vires the Act because they infringed the constitutional implied freedom of political communication.

1. Because the issues in this proceeding, and those considered by the High Court in Palmer had the potential to overlap, on 30 November 2020, the trial of this proceeding was vacated until after the publication of the High Court’s reasons.  As noted, that occurred on 24 February 2021.

1. On 10 and 12 March 2021, the solicitors acting in the proceeding for the three plaintiffs filed a notice of ceasing to act for the second and third plaintiffs, respectively.

1. On 11 March 2021, the solicitors who were then acting for the first and third plaintiffs sent a proposed further amended originating motion to the Court and the other parties.

1. At a directions hearing held on 15 March 2021, a solicitor announced her appearance for the second and third plaintiffs.  Subsequently, that solicitor advised the Court that she was no longer acting for the second and third plaintiffs.  At present, they appear for themselves.

1. On 15 March 2021, the directions were made designed to identify the extent, if any, to which the second and third plaintiffs maintained the claims contained in the originating motion which had been prepared in their name by their then solicitors.  The directions included a direction that the second and third plaintiffs inform the defendants and the first plaintiff whether or not they adopted the proposed further amended originating motion prepared on behalf of the first plaintiff or, if they did not, they were to serve any proposed further amended originating motion of their own.

1. On 29 March 2021, in accordance with the directions of 15 March 2021, the first plaintiff served a proposed further amended originating motion on the other parties, a copy of which was provided to the Court on 22 April 2021.

1. Although the second and third plaintiffs have not filed a proposed further amended originating motion, in a series of emails sent by the third plaintiff to the other parties and to the Court, the third plaintiff has repeatedly stated that he does not maintain the claims contained in the current originating motion and would seek to challenge the validity of the Act itself rather than the validity of the directions made under it. The second plaintiff has adopted the same position. That remains the case. Indeed, the second and third plaintiffs have submitted that the claims, as formulated, are not maintainable in light of the reasons for judgment of the High Court in Palmer.

1. The only basis for the joinder of the three plaintiffs to the single originating motion was that their cases involved common questions of fact or law and sought the same relief. That is no longer the case. The first plaintiff seeks to challenge directions made under the Act. The second and third plaintiffs, although they have not formalised this in any proceeding in the Court, have indicated an intention to challenge the validity of the Act. As the reasons of the High Court in Palmer show, there is a clear demarcation in the issues arising between those separate challenges.

1. There are a number of potential mechanisms by which the different issues could be separated. However, in circumstances where the second and third plaintiffs no longer wish to advance the claims that they have made to date in their originating motion, and the existing originating motion or the proposed further amended originating motion does not contain any of the claims they now seek to contend for, it is appropriate to remove them as parties to the proceeding. That will allow the first plaintiff to continue the current proceeding. I note in that respect that preparation is substantially advanced, with evidence and submissions filed, and that further directions can be made in short compass to prepare the proceeding for trial. On the other hand, no proceeding has been commenced and no steps have been taken in relation to the challenge to the validity of the Act by way of formal documents filed with the Court. At most, the potential challenge to the validity of the Act has been foreshadowed. By order of the Court, the second and third plaintiffs will cease to be parties to the proceeding.

1. Given that they no longer seek any of the relief contained in the originating motion, and indeed have submitted that the relief cannot be granted by this Court, and any claims to the validity of the Act would raise entirely new issues that have not hitherto arisen in the proceeding, I can discern no prejudice to them in having them removed as parties. That leaves open to the second and third plaintiffs the ability to commence a new proceeding, either in this Court or indeed in the High Court, seeking to challenge the validity of the Act. Indeed, if they are to raise the issues foreshadowed by them a new proceeding in this Court, directions can be given to advance that matter towards trial.

1. Accordingly, I propose to order that the second and third plaintiffs be removed as parties to the proceeding. For completeness, I note that the second and third plaintiffs have sought an adjournment of the directions hearing without orders being made to allow service of notices under s 78B of the Judiciary Act 1903 (Cth). It is not appropriate for the matter to be adjourned.

1. The second and third plaintiffs submit that the validity of the Act is a constitutional question which would require the service of s 78B notices to the Attorneys-General. That proposition may be accepted, however, the validity of the Act, as I have explained, does not presently arise in the proceeding.

1. The second and third plaintiffs do not submit that the originating motion, as currently formulated, insofar as it challenges the directions, raises a constitutional question requiring service of notices under s 78B of the Judiciary Act. Whether or not that is correct need not be determined. What I propose is directions for the further preparation of the hearing, no substantive issues will be determined and if the first plaintiff and the defendants take the view that the proposed further amended originating motion served by the first plaintiff on the parties on 29 March 2021 involves a matter arising under the Constitution or involving its interpretation and that existing s 78B notices are inadequate to give notice of those claims, then further notices can be given.

1. For those reasons, I propose to refuse the application for the adjournment and to make the directions sought.

SCHEDULE OF PARTIES
KERRY COTTERILL	First Plaintiff
TONY PECORA	Second Plaintiff
DAVID WEISINGER	Third Plaintiff
and
FINN ROMANES (in his capactity as the Deputy Public Health Commander)	First Defendant
BRETT SUTTON (in his capacity as Chief Health Officer)	Second Defendant