Davis v Minister for Health

Link copied
Case Copied 31 min read

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.

  1. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Davis v Minister for Health and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] NSWCATAD 293
Decision Date

CaseChat Overview and Summary

Danielle Davis brought an application for a stay or interim order against the Minister for Health, seeking to prevent the enforcement of the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021, which mandated vaccination for healthcare workers. The case was heard in the Federal Court of Australia. The primary issue before the court was whether it had the jurisdiction to grant a stay or interim order that would effectively secure the merits of the review, considering the public interest implications of such a decision.
The court assessed whether the application met the criteria for a stay or interim order, considering the balance between the potential harm to the applicant if the order was enforced and the public interest in enforcing the order. The court examined the urgency and immediacy of the application, the strength of the applicant's case on the merits, and the potential impact on third parties, including the broader public health context. Ultimately, the court determined that the application did not meet the necessary threshold to warrant a stay or interim order.
Consequently, the court dismissed the application and refused the requested stay of the deadline. The Federal Court held that the public interest in enforcing the vaccination mandate for healthcare workers outweighed the potential harm to the applicant, and that the order should proceed as scheduled. The court's decision emphasised the importance of maintaining public health measures during the ongoing COVID-19 pandemic.

Orders

Orders of the court

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

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.