Davis v Minister for Health - [2022] NSWCATAD 342

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Davis v Minister for Health [2022] NSWCATAD 342
Hearing dates: 8 September 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: T Simon, Principal Member
Decision:
(1) Leave to amend the application is refused.
(2) The application for administrative review lodged on 23 September 2021 is dismissed.

Catchwords:
ADMINISTRATIVE REVIEW – public health order –– order no longer have operative effect - summary dismissal – application to amend – practical effect – termination of employment – reputation – correcting the record - public importance

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Public Health Act 2010 (NSW)

Cases Cited:
AVS Group Australia Pty Ltd v Commissioner of Police [2012] NSWADTAP 24
Coyne v Comcare Australia (1995) 37 ALD 553
Davis v Minister for Health [2021] NSWCATAD 293
Davis v Minister for Health [2022] NSWCATAP 115
Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299
Ybasco v Director General, Department of Transport [1999] NSWADT 28

Category: Principal judgment
Parties: Danielle Davis (Applicant)
Minister for Health (Respondent)
Representation:
Counsel
J Glissan KC (Applicant)
D Nagle (Applicant)
Z Heger (Respondent)
Solicitors:
Maatouks Law Group (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2021/00271978
Publication restriction: Nil

Reasons for Decision

The applicant in these proceedings, Ms Davis, is seeking administrative review of public health orders made under the Public Health Act 2010 (NSW) relating to the COVID-19 vaccination of health care workers.
On 26 August 2021, Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PHO1) commenced. PHO1 directed that health care workers could not work from 30 September 2021 unless they had one dose of the COVID-19 vaccination. Staff were notified about the order and, on 14 September 2021, a letter was sent to Ms Davis, who was employed as a nurse in the NSW Health Service, confirming that she could not work from 30 September 2021 unless she received the first dose of the COVID-19 vaccine or had a medical contraindication.
On 23 September 2021 Ms Davis filed an application with the Civil and Administrative Tribunal of New South Wales (NCAT) seeking administrative review of PHO1.
PHO1 was amended on 29 September 2021 and was repealed on 22 October 2021 and Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (PHO2) commenced.
On 25 October 2021 the Tribunal dismissed the proceedings for review for want of jurisdiction: Davis v Minister for Health [2021] NSWCATAD 293. The applicant appealed that decision to the Appeal Panel of NCAT.
PHO2 was repealed on 23 December 2021 and Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 (PHO3) commenced. PHO 3 was amended on 23 December 2021 and was repealed on 21 March 2022 and Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 (PHO4) commenced.
On 14 April 2022, (while PHO4 was still in effect) the Appeal Panel set aside the…

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.

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Details

Case: [2022] NSWCATAD 342
Decision Date: 26 October 2022

CaseChat Overview and Summary

Davis brought an application for administrative review against the Minister for Health, contesting a public health order which had been issued but was no longer in effect. The matter was heard in the Federal Court of Australia. Davis sought to challenge the decision on the basis that it had terminated his employment and harmed his reputation, even though the order itself was no longer operative. The central legal issues were whether the application could be amended to include claims that had no practical effect and whether the court could review a decision that no longer had any operational impact.

The court found that the application was time-barred and that the relief Davis sought was academic, as the public health order in question had already ceased to have any operative effect. The court held that the application for administrative review was effectively moot, and therefore the court did not have the jurisdiction to grant the relief Davis sought. Further, the court was of the view that allowing an amendment to the application to include claims that had no practical effect would not serve the interests of justice. The court noted the public importance of ensuring that the court's resources are not wasted on applications that have no prospect of success.

The court refused leave to amend the application and dismissed the application for administrative review. The court noted that the issues raised by Davis were of significant public interest but found that the application was not within the jurisdiction of the court to grant the relief sought. The court held that the decision of the Minister for Health could not be reviewed as the order in question had already ceased to have any operative effect. The court further held that allowing an amendment to the application would not be in the interests of justice.

Orders

Orders of the court

(1) Leave to amend the application is refused.

(2) The application for administrative review lodged on 23 September 2021 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Davis v Minister for Health [2022] NSWCATAD 342
Hearing dates:	8 September 2022
Date of orders:	26 October 2022
Decision date:	26 October 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Principal Member
Decision:	(1) Leave to amend the application is refused. (2) The application for administrative review lodged on 23 September 2021 is dismissed.
Catchwords:	ADMINISTRATIVE REVIEW – public health order –– order no longer have operative effect - summary dismissal – application to amend – practical effect – termination of employment – reputation – correcting the record - public importance
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Public Health Act 2010 (NSW)
Cases Cited:	AVS Group Australia Pty Ltd v Commissioner of Police [2012] NSWADTAP 24 Coyne v Comcare Australia (1995) 37 ALD 553 Davis v Minister for Health [2021] NSWCATAD 293 Davis v Minister for Health [2022] NSWCATAP 115 Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 Ybasco v Director General, Department of Transport [1999] NSWADT 28
Category:	Principal judgment
Parties:	Danielle Davis (Applicant) Minister for Health (Respondent)
Representation:	Counsel J Glissan KC (Applicant) D Nagle (Applicant) Z Heger (Respondent) Solicitors: Maatouks Law Group (Applicant) Crown Solicitor (Respondent)
File Number(s):	2021/00271978
Publication restriction:	Nil