Davis v Minister for Health

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Davis v Minister for Health [2021] NSWCATAD 310

Hearing dates:

11 October 2021

Date of orders:

25 October 2021

Decision date:

25 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Pearson, Principal Member

Decision:

The order of the Tribunal is:

(1) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the application made by Danielle Davis on 23 September 2021 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – application for administrative review – jurisdiction of Tribunal – summary dismissal

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Health Services Act 1997 (NSW)

Interpretation Act 1987 (NSW)

Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)

Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW)

Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW)

Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW)

Public Health Act 1991 (NSW)

Public Health Act 2010(NSW)

State Emergency and Rescue Management Act 1989(NSW)

Cases Cited:

Athavle v State of New South Wales [2021] FCA 1075

Davis v Minister for Health [2021] NSWCATAD 293

Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; [2001] FCA 855

Texts Cited:

Hansard, Legislative Assembly, 24 November 2010, p 28128

Category:

Procedural rulings

Parties:

Danielle Davis (Applicant)
Minister for Health (First Respondent)
Northern NSW Local Health District (Second Respondent)

Representation:

Counsel:
Z Heger (First Respondent)
Z Heger (Second Respondent)
Solicitors:
E Turner (Agent for Applicant)
Crown Solicitor (First Respondent)
Crown Solicitor (Second Respondent)

File Number(s):

2021/00271978

Publication restriction:

None

REASONS FOR DECISION

1. Ms Danielle Davis is an endorsed enrolled nurse employed at Ballina Hospital Rehabilitation ward. On 23 September 2021 she applied to the Tribunal for administrative review, identifying as the decision to be reviewed a letter dated 14 September 2021 from the Director of Workforce, Northern NSW Local Health District (the NNSWLHD). That letter informed Ms Davis that pursuant to the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (the PHO) made under s 7 of the Public Health Act 2010 (NSW) (the PH Act), COVID-19 vaccinations would be required for all NSW Health staff in order to continue to work for NSW Health, with the first vaccination required by 30 September 2021 and the second by 30 November 2021. The letter stated:

“If you do not have an approved medical contraindication certificate and have not provided evidence of having had one dose of a COVID-19 vaccine to the Northern NSW Local Health District…by 30 September 2021, you cannot continue to work for NSW Health. Other than as outlined above, there are no exceptions to these requirements as there are penalties for both employers and workers for non-compliance.”