Davis v Minister for Health

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Davis v Minister for Health [2021] NSWCATAD 293

Hearing dates:

28 September 2021

Date of orders:

28 September 2021

Decision date:

08 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Pearson, Principal Member

Decision:

The application made on 23 September 2021 by Danielle Davis for a stay of the deadline of 30 September 2021 in Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 is refused

Catchwords:

ADMINISTRATIVE LAW – stay or interim order – jurisdiction of Tribunal - whether appropriate to secure effectiveness of review – public interest

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(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

AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 73 NSWLR 302

Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; (1986) 161 CLR 148

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

Category:

Procedural rulings

Parties:

Danielle Davis (Applicant)
Minister for Health(Respondent)

Representation:

Counsel:
Z Heger (Respondent)

Solicitors:
E Turner (Agent for Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00271978

Publication restriction:

None

REASONS FOR DECISION

1. On 23 September 2021 Ms Danielle Davis applied to the Tribunal for administrative review and for a “stay from the deadline of 30 September 2021 listed in the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 to coerced vaccination”.

2. Ms Davis is an enrolled endorsed nurse employed at Ballina Hospital Rehabilitation ward. In her application she identified as the decision to be reviewed a letter dated 14 September 2021 from the Director of Workforce, Northern NSW Local Health District (the NNSWLHD), informing her that pursuant to the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (the PHO), mandatory COVID-19 vaccination will 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.

3. In her Grounds for Application Ms Davis stated the grounds of review as follows:

1. Breach of the rules of natural justice;

2. Procedures required by law were not observed;

3. Decision not authorised by the enactment;

4. Decision involved an error of law;

5. No evidence or other material to justify the making of the decision;

6. Decision based on the existence of a particular fact which did not exist;

7. Improper exercise of the power conferred by…