Dunn v Director of Public Health

[2021] TASFC 16

[2021] TASFC 16

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Dunn v Director of Public Health [2021] TASFC 16
PARTIES:	DUNN, David Wylie
v
DIRECTOR OF PUBLIC HEALTH
FILE NO:	FCA 2656/2021
JUDGMENT
APPEALED FROM:	Dunn v Veitch [2021] TASSC 56
DELIVERED ON:	12 November 2021
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2021
JUDGMENT OF:	Wood J, Geason J, Martin AJ

EDITED REASONS FOR JUDGMENT DELIVERED ORALLY

CATCHWORDS:

Equity – Equitable remedies – Injunctions – Interlocutory injunctions – Serious question to be tried – Other
particular cases – Assertion of invalidity of direction under public health legislation during emergency

– Appeal against refusal of primary judge to grant interlocutory injunction on the basis that the primary

judge erred in law – No error shown.

Public Health Act 1997 (Tas), s 16.

Aust Dig Equity [1158]

REPRESENTATION:

Counsel:

Appellant:	P King, R Broomhall
Respondent:	P Turner SC, M Jehne

Solicitors:

Appellant:	Ashley, Francina, Leonard & Associates
Respondent:	Office of the Solicitor General

Judgment Number:	[2021] TASFC 16
Number of paragraphs:	21

Serial No 16/2021

File No FCA 2656/2021

DAVID WYLIE DUNN v DIRECTOR OF PUBLIC HEALTH

EX TEMPORE REASONS FOR JUDGMENT	FULL COURT WOOD J GEASON J MARTIN AJ 12 November 2021
Order of the Court:
Appeal dismissed.
Serial No 16/2021 File No FCA 2656/2021

DAVID WYLIE DUNN v DIRECTOR OF PUBLIC HEALTH

EX TEMPORE REASONS FOR JUDGMENT FULL COURT
WOOD J
GEASON J
MARTIN AJ
12 November 2021

1            On 17 March 2020 the Director of Public Health in Tasmania (the Director) declared that a public health emergency existed by reason of the COVID-19 pandemic:

"I, SCOTT McKEOWN, the Director of Public Health, in pursuance of section 14 of the Public Health Act 1997, being satisfied that, because of the global spread of the notifiable disease known as COVID-19 and the potential for the movement of persons into, and within, the State to have the effect of spreading the notifiable disease, there

exists a situation in which a risk to public health is likely to occur –

(a)	declare that a public health emergency exists; and
(b)	declare that the public health emergency arises because of the risk of persons in this State contracting COVID-19 through contact with persons infected with the notifiable disease; and
(c)	specify that this declaration relates to all parts of the State; and
(d)	specify that this declaration is in force until midnight 23 March 2020."

2 The emergency declaration has been extended from time to time and was in force on 7 October, 2021. On that date, pursuant to s 16 of the Public Health Act 1997 (the Act), the Director issued a

Direction entitled "Mandatory Vaccination of Certain Workers – No 7", in substance prohibiting

specified persons from entering premises of a medical or health facility unless sufficiently vaccinated against COVID-19, and prohibiting persons from providing health and medical services or treatments unless sufficiently vaccinated against the disease. The Direction also provided that State Service employees who, as part of their employment, worked for or on behalf of the Department of Health, must be sufficiently vaccinated. Direction 7 was superseded by Direction 8 and now, more recently, by Direction 9. Notwithstanding these developments, this appeal retains utility because the issues in Direction 7 which the appellant seeks to agitate are continued in the latest Direction.

3             Also of particular significance to the appellant is the direction that supervisors of persons identified in the Direction must take all reasonable steps to notify persons of the requirement to be sufficiently vaccinated and to ensure that such persons do not enter or remain on relevant premises if the supervisor is not satisfied that the person is sufficiently vaccinated or is exempt from that requirement.

4             The appellant filed an originating application seeking a review of the Direction pursuant to the Judicial Review Act 2000. He also filed an interlocutory application seeking an order suspending the operation of the Direction or, in particular, a stay of the operation of specific paragraphs of the direction until the hearing of the matter. The interlocutory application also sought an order restraining the respondent from giving effect to the specific paragraphs.

5             Subsequently the appellant filed an amended originating application intended to invoke both the supervisory and equitable jurisdictions of the court. On the hearing of the application for the injunction, counsel for the appellant did not press the proposed amendment with respect to the

2   16/2021

supervisory jurisdiction, and amendments were allowed by the Chief Justice concerning the equitable
jurisdiction only.

6             After allowing amendments, Blow CJ heard the interlocutory application and refused it: Dunn v Veitch [2021] TASSC 56. This Court is concerned solely with the appeal against the refusal to grant the interlocutory injunction.

7 An appeal against a refusal to issue an interlocutory injunction is an appeal against the exercise of a discretion. It is governed by s 45 of the Supreme Court Civil Procedure Act 1932, the terms of which are consistent with the common law principles as explained in House v The King (1936) 55 CLR 499.

8             Blow CJ doubted that the court possessed jurisdiction to entertain the originating application under the Judicial Review Act, but found it was not necessary to reach a decision in that regard because the court possessed power to grant an injunction in the exercise of its equitable jurisdiction. His Honour correctly identified the two fundamental questions to be addressed namely, whether there is a serious question to be tried and whether the balance of convenience favours the granting of an interlocutory injunction. His Honour found that the appellant was on "strong ground as far as the balance of convenience is concerned" because the originating application could be heard by the court in the following week. However, his Honour took a different view as to the issue of whether there was a serious question to be tried.

9             Blow CJ correctly identified the fundamental test as explained by Gummow and Hayne JJ in Australian Broadcasting Commission v O'Neill [2006] HCA 46, 227 CLR 57 at [65] where their Honours said:

"... it is sufficient that the plaintiff show a sufficient likelihood of success to justify in
the circumstances the preservation of the status quo pending the trial."

10 Blow CJ identified the need to "evaluate the chances of success of the amended originating application" and concluded that the appellant's arguments were "all remarkably weak". His Honour did so having noted the need to evaluate the scope of the powers conferred on the Director by s 16 of the Act, and observed that in order for s 16 to have any operation there must be an emergency declaration in force under s 14. As his Honour said, this means that the Director must have decided that "there is a public health emergency warranting an emergency declaration".

11           We can see no error in the approach taken by his Honour to Australian Broadcasting Commission v O'Neill. Having concluded, on the arguments before him, that there was not a serious issue to be tried, interlocutory relief could not be justified.

12   His Honour's reasons continued in a passage criticised by the appellant:

"I think that that provision [s 16(2)(e)] is more likely to be properly construed as, in practical terms, giving the Director carte blanche, or something like it, to meet the exigencies of a medical emergency."

We agree with the submission of the respondent that it is not evident that his Honour fell into error in that regard. His Honour was not expressing the view that the powers of the Director were unlimited. Indeed, his Honour was plainly acknowledging that the powers of the Director are confined and reflect the terms of s 16(1), "to meet the exigencies of a medical emergency". His Honour's ex tempore reasons, given after a very short adjournment, should not be read as if they were reasons provided after considerable time for research and preparation.

13   The ultimate conclusion of Blow CJ is expressed in the following passage at [10]:

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"[10] I think that the furthest that this direction goes in interfering with common law rights or personal freedoms is in the application of par (e)(ii), requiring the compulsory vaccination of certain State Service employees. But I then ask myself what are the prospects of success of arguments that s 16 of the Public Health Act is not wide enough for the Director, if he considers that such extreme action is necessary to deal with a public health emergency, to be given by that legislation the power to impose such requirements. In my view the prospects of success of the arguments that have been marshalled in relation to these provisions are not sufficient to meet the test that I referred to from the judgment in ABC v O'Neill."

In our view, his Honour correctly addressed the fundamental questions, and criticism of his Honour for failing to engage in an analysis of the authorities is misplaced.

14           There was reliance on the principle of legality and the effect of the Direction upon freedom of movement and ability to work. The appellant submits that, in substance, the Direction will require the appellant to commit an assault and act in breach of his responsibilities as a medical practitioner because any vaccinations will not be given with the free and voluntary consent of the person vaccinated. It is submitted that the "practical effect" of the directions is to force persons "to undertake vaccination under threat of losing their capacity to work such that they will not have exercised a free choice to consent".

15 The principle of legality would arise if there was a constructional choice, a question of statutory interpretation as to the meaning of s 16. However, the arguments presented do not reveal ambiguity about the meaning of the section and its breadth. As his Honour concluded, the section provides for wide powers. The arguments presented before us do not cause us to doubt that conclusion. Section 16 provides:

"16 Directions of Director

While an emergency declaration is in force, the Director may take any action or give any directions to –

(1)

(a)	manage a threat to public health or a likely threat to public health; or
(b)	quarantine or isolate persons in any area; or
(c)	evacuate any persons from any area; or
(d)	prevent or permit access to any area; or
(e)	control the movement of any vehicle.

The Director may give any one or more of the following directions while an emergency declaration is in force:

(2)

(a)

that any specified person undergo –

(i)	a clinical assessment specified in the direction; or
(ii)	a clinical assessment, specified in the direction, conducted by a person, or a member of a class of persons, specified in the direction;

(b)

that any specified person move to, or stay in, a specified area;

(c)

that any substance or thing be seized;

(d)

that any substance or thing be destroyed;

(e)

that any other action be taken the Director considers appropriate.

(2A) A direction given under this section may specify the manner in which the direction is to be complied with.

(3) A person must comply with a direction of the Director given under this section.

Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months, or both.

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(4) A person who carries out a clinical assessment for the purpose of a direction given under subsection (2)(a) must provide to the Director a written report in relation to the assessment as soon as practicable after the assessment is completed.

Penalty:  Fine not exceeding 25 penalty units.

A direction given under this section ceases to be in force when the requirements of the direction have been satisfied.

(5)

(6) The Director may revoke a direction given under this section.

(7) The Director must revoke under subsection (6) a direction as soon as practicable after he or she is satisfied that it is no longer necessary, for the purposes of managing a threat to public health or a likely threat to public health, for the direction to remain in force.

(8) If a direction given under this section, or an order under section 16C(1)(e), requires a person to be quarantined or isolated or to stay in a specified area, the

Director, at the required intervals, must –

(a)	consider whether it is necessary for the person to continue to be subject to the direction or order; and
(b)	if necessary in order to determine whether it is necessary for the person to continue to be subject to the direction or order, arrange for the clinical assessment of the person.

The required intervals are intervals that the Director considers reasonable, but not less than once in every successive period of 7 days."

(9)

16 Plainly, s 16 provides wide powers. Section 16 is engaged in circumstances of an existing public health emergency, and it authorises the Director to "take any action or give any directions" to "manage a threat to public health or a likely threat to public health". In addition, s 16(2)(e) empowers the Director to give a direction "that any other action be taken the Director considers appropriate".

17           In the context of the extant emergency declaration, the Act confers wide powers upon the Director and we are far from persuaded that the assessment of those powers by Blow CJ was incorrect.

18           His Honour's conclusion is supported by a consideration of the purpose, text and context of the legislation. The exercise of power is predicated on an emergency relating to a threat to community health. It would appear that restricting the free movement of persons and free association of persons are the very type of restrictions that the section authorises. It is perhaps worth observing that in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Beech-Jones CJ at CL dealt with some of these types of questions (albeit in the context of a different factual matrix and legislation) at [9] and [63] in terms that seem apposite.

19           There were many arguments advanced on the part of the appellant that there is, contrary to the conclusion reached by Blow CJ, a serious issue to be tried. Some of these had moved from the arguments presented before the learned primary judge. The arguments presented before this Court do not reveal error by his Honour. It is unnecessary and inappropriate that we determine these arguments. They will be determined in the substantive proceedings.

20          We are not persuaded that Blow CJ erred in his assessment of the prospects of success or erred in his refusal of the application for an interlocutory injunction. Error has not been disclosed.

21   The appeal is dismissed.