Dunn v Veitch

[2021] TASSC 56

[2021] TASSC 56

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Dunn v Veitch [2021] TASSC 56

PARTIES:  DUNN, David Wylie
  v
  VEITCH, Mark

FILE NO:  2638/2021
DELIVERED ON:  29 October 2021
DELIVERED AT:  Hobart
HEARING DATE:  29 October 2021
JUDGMENT OF:  Blow CJ

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.

Public Health Act 1997 (Tas), s 16.
Australian Broadcasting Commission v O'Neill [2006] HCA 46, 227 CLR 57, referred to.
Aust Dig Equity [1158]

REPRESENTATION:

Counsel:
           Applicant:  P King, R Broomhall
           Respondent:  P Turner SC, M Jehne
Solicitors:
           Applicant:  Ashley, Francina, Leonard & Associates
           Respondent:  Solicitor-General

Judgment Number:  [2021] TASSC 56
Number of paragraphs:  11

Serial No 56/2021

File No 2638/2021

DAVID WYLIE DUNN v MARK VEITCH

ORAL REASONS FOR JUDGMENT  BLOW CJ

(EDITED VERSION OF REASONS DELIVERED ORALLY)               29 October 2021

[The respondent, Dr Veitch, is the Director of Public Health. On 7 October 2021 he signed a direction under s 16 of the Public Health Act 1997 entitled Mandatory Vaccination of Certain Workers – No 7. On 28 October 2021 the applicant, Associate Professor Dunn, filed an originating application seeking review of that direction pursuant to the Judicial Review Act 2000. On 29 October he filed an interlocutory application seeking orders suspending the operation of the direction until the hearing of the originating application, and restraining the respondent, his servants and agents from giving effect to certain paragraphs of it until further order. The interlocutory application was heard on that day. During the hearing, leave was granted to amend the originating application to seek a declaration that the respondent had no power or jurisdiction to make the direction dated 7 October 2021, and an injunction restraining him from giving effect to it or taking any steps to give operation to it, in the Court's equitable jurisdiction.

Amongst other things, counsel for the applicant relied on s 6 of the Public Health Act, which requires the Director of Public Health to be a medical practitioner. Paragraph (e)(ii) of the direction required, on and from 31 October 2021, each State Service employee working for or on behalf of the Department of Health to be "sufficiently vaccinated" against COVID-19 as specified in par (f) of the direction. Counsel for the applicant argued that compulsory vaccinations were inconsistent with the ethics of the medical profession; that the administration of a vaccination without an employee's consent would constitute a battery at common law; and that any such act would be a breach of the Code of Conduct contained in s 9 of the State Service Act 2000. Counsel for the respondent argued that there was nothing in the Public Health Act to suggest that the Director was constrained in the exercise of his powers because of his role as a medical practitioner or the ethics applicable to his profession. He submitted that the requirements of s 9 of the State Service Act were irrelevant.

His Honour's reasons for refusing to grant an interlocutory application were stated as follows.]

1. The starting point in all of this is the nature of the jurisdiction of the Court. The Court in its equitable jurisdiction no doubt has the power to entertain the amended application. I very much doubt that the Court has jurisdiction to entertain it under the Judicial Review Act 2000, but it is not necessary for me to express a conclusion on that point and I therefore will not go into the details, save to say that I think the arguments to the effect that the direction in question, Mandatory Vaccination of Certain Workers – No 7, is an instrument of a legislative character, are apparently quite strong.

2. The Court, having equitable jurisdiction without doubt, therefore has the power to grant an interlocutory injunction to preserve the status quo, wholly or in part. The two fundamental questions to be addressed, as has been said, are firstly whether there is a serious question to be tried, and secondly whether the balance of convenience favours the granting of an injunction.

3. The applicant is on strong ground as far as the balance of convenience is concerned. There can be a hearing of the application next week, Porter AJ is available to hear it. There have been no cases of community transmission of the COVID-19 virus in Tasmania for well over a year . There is not much risk involved in preserving the status quo for a short time, but I take a different view in relation to the issue of whether there is a serious question to be tried. I think that the nature of the test was very well 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."

4. That leads me to evaluate the chances of success of the amended originating application. In my view the applicant's arguments are all remarkably weak. I think that what Mr Turner said in relation to the requirement that the Director be a medical practitioner, and as to the provisions of s 9 of the State Service Act 2000 as to the Code of Conduct, are very persuasive. The evaluation of the strength of the case must come back to an evaluation of the scope of the powers conferred on the Director by s 16 of the Public Health Act 1997.

5. It must be borne in mind that in order for s 16 to have any operation, there must be an emergency declaration in force under s 14. That means that the Director needs to have decided that there is a public health emergency warranting an emergency declaration.

6. I think that it is appropriate in the circumstances therefore, to construe s 16 as giving the Director very wide powers. Section 16(2)(e) provides that, while an emergency declaration is in force, he can direct that "any other action be taken that the Director considers appropriate".

7. Mr King submitted that that paragraph should be construed in accordance with the ejusdem generis principle, but I think, given the context of health emergency legislation, that that is not appropriate. I think that that provision 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.

8. The direction that is challenged lists six types of restrictions in pars (a)–(e):

   ·(a)    restricts access by workers to a residential aged care facility;

   ·(b)    restricts access by workers to a quarantine site;

   ·(c)    restricts the participation by workers in quarantine transport services;

   ·(d)    restricts the access of workers to the premises of a medical or health facility;

   ·(e)(i)   prohibits unvaccinated individuals from providing health and medical services or treatments;

   ·(e)(ii)  requires compulsory vaccinations on the part of State Service employees working for or on behalf of the Department of Health.

9. There follow a number of paragraphs that deal with definitions and exemptions. Then there are further duties imposed, beginning at par (n). Paragraph (n) requires the wearing of face coverings. Paragraph (o) requires a supervisor to take steps in relation to aged care facilities, quarantine sites and quarantine transport. Paragraph (p) requires a relevant supervisor to take certain steps in relation to health care premises and medical health facilities, and the provision of health and medical services. The applicant, apparently, is a person who is a relevant supervisor for the purposes of par (p).

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.

11. I do not think that the applicant has shown a sufficient likelihood of success in any respect to justify the preservation of the status quo pending the trial. The application for the interlocutory injunction is refused.