Falconer v Commissioner of Police [No 2]
[2022] WASC 2
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FALCONER -v- COMMISSIONER OF POLICE [No 2] [2022] WASC 2
CORAM: ALLANSON J
HEARD: 23 DECEMBER 2021
DELIVERED : 12 JANUARY 2022
FILE NO/S: CIV 2308 of 2021
BETWEEN: BEN FALCONER
Applicant
AND
COMMISSIONER OF POLICE
First Respondent
THE STATE OF WESTERN AUSTRALIA
Second Respondent
Catchwords:
Judicial review - Practice and procedure - Where first respondent directed members of WA Police to be vaccinated against COVID-19 - Where applicant facing disciplinary action for refusing to be vaccinated - Whether direction within powers of first respondent as Commissioner of WA Police
Practice and procedure - Where first respondent applied for summary determination in whole or in part - Whether applicant has no reasonable prospects of success on all or part of application - Turns on own facts
Practice and procedure - Judicial review - Where second respondent not decision maker and will not be a party to any disciplinary proceedings or disciplinary action - Whether second respondent properly joined as a respondent to the application - Turns on own facts
Legislation:
Police Act 1892 (WA)
Public Health Act 2016 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 5(2)(j)
Result:
Proceedings dismissed against the second respondent
Grounds 1, 3(d) and 4 summarily dismissed
Applicant to provide full particulars of the basis on which he alleges the Employer Direction is legally irrational
Category: B
Representation:
Counsel:
| Applicant | : | S Prince SC & B Tomasi |
| First Respondent | : | K Pettit SC & B Nelson |
| Second Respondent | : | K Pettit SC & B Nelson |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218
Falconer v Commissioner of Police [2021] WASC 481
Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546
Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350
LibertyWorks Inc v Commonwealth [2021] HCA 18; (2021) 95 ALJR 490
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
ALLANSON J:
Introduction
The applicant, Ben William Falconer, has brought an application for judicial review in which he challenges the validity of an Employer Direction issued by the Commissioner of Police on 24 November 2021, which required all WA Police to be partially vaccinated against COVID‑19 by 1 December 2021 and fully vaccinated by 31 December 2021.
The proceedings were filed on 6 December 2021.
On 26 November 2021, the applicant had commenced separate proceedings for judicial review challenging the validity of directions issued by the Chief Health Officer, Dr Andrew Robertson, on 12 November 2021. Those directions were in force at the time of the Employer Direction. In effect, they prohibited the applicant, and any other unvaccinated WA Police Force workers, from entering or remaining at a WA Police facility.
By chamber summons filed 15 December 2021, the applicant applied for interim relief, restraining the Commissioner from dismissing him from the Western Australian Police Force in reliance on the Employer Direction.
By chamber summons filed 17 December 2021, the respondents applied for summary determination of both applications under O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA), on the ground that they had no reasonable prospect of succeeding.
On 24 December 2021, I granted an interlocutory injunction in the application brought against the Commissioner and reserved on the applications for summary determination. I am publishing separate reasons in each of those applications.
The evidence
In support of the applications for summary determination, the respondents relied on the evidence filed in the application for interlocutory relief.
The applicant's chamber summons was supported by an affidavit of the applicant, sworn 15 December 2021, and affidavits of Luke Francis George Swanson, legal practitioner, sworn 21 and 23 December 2021.
The respondents read the following affidavits:
(1) Colin John Blanch, Assistant Commissioner, sworn 16 December 2021;
(2) Kylie Maree Whiteley, Assistant Commissioner, sworn 16 December 2021;
(3) Emily Jane O'Keefe, legal practitioner, affirmed 15 December and 22 December 2021.
I summarised the background facts in my earlier decision on the application for an interlocutory injunction and I will not repeat that summary here.[1]
[1] Falconer v Commissioner of Police [2021] WASC 481 [12] - [29].
The Directions
The WA Police Force Worker (Restrictions on Access) Directions, signed by the Chief Health Officer, Dr Andrew Robertson, as Emergency Officer, were issued on 12 November 2021.
The Directions were stated to be made pursuant to s 157(1)(e), s 157(1)(k), s 180 and s 190(1)(p) of the Public Health Act 2016 (WA).
The substance of the restrictions is set out in paragraph 4:
Subject to paragraphs 5 and 6:
(a) on and from 12:01am on 1 December 2021, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been partially vaccinated against COVID-19; and
(b) on and from 12:01am on 1 January 2022, a person who is a WA Police Force worker must not enter, or remain at, a WA Police facility if the WA Police Force worker has not been fully vaccinated against COVID-19, unless the person is present at the WA Police facility solely in a capacity other than as a WA Police Force worker.
Paragraph 7 requires a WA Police Force worker to provide evidence of the vaccination status as directed or required. The Directions further required the WA Police to only roster on, or otherwise permit to work in a WA Police facility, a WA Police worker who is vaccinated or is an exempt person in accordance with the directions.
On 24 November 2021, the Commissioner issued an Employer Direction, which provided:
All employees, as part of their employment, must be vaccinated against COVID-19, as follows:
• Before 12:01 am on 1 December 2021 - Partially vaccinated (first dose); and
• Before 12:01 am on 1 January 2022 - Fully vaccinated (two doses).
The Employer Direction also provided for employees to produce evidence of vaccination.
Subject to medical exemption, the Employer Direction provided that failure to comply is a breach of discipline which may result in disciplinary action, with outcomes that may vary from a reprimand to dismissal.
The application for review
The claim for relief relates to the validity of the Employer Direction issued by the Commissioner of Police on 24 November 2021. The application identifies, as the governing law, s 157(1)(e) and (k), s 180 and s 190(1)(p) of the Public Health Act, alternatively the Police Act 1892 (WA).
The grounds of review go beyond a challenge to the validity of the Employer Direction. The application contains five grounds:
1. The Employer Direction is not authorised by the Public Health Act and/or the Police Act because it has the effect of making a direction which may only be made under s 157(1)(j) and given effect in accordance with s 158 of the Public Health Act.
2. The Employer Direction is not a lawful and reasonable direction given by the Commissioner of Police as an employer under the Police Act and/or Regulations made thereunder and/or the contract of employment.
3. The Employer Direction is ultra vires because the Commissioner was not authorised to make the Employer Direction under the Public Health Act) and/or the Police Act in that:
a. The Employer Direction misconstrues the Public Health Act by proceeding on the basis that the WA Police Force Worker (Restrictions on Access) Directions (the CHO Direction) is a valid direction under the Public Health Act when it is not for the reasons set out in the Application for Judicial Review in proceedings CIV 2286 of 2021;
b.The Employer Direction misconstrues and goes beyond the terms of the CHO Direction; and/or
c. The Employer Direction is not reasonably appropriate and adapted or proportionate to the implementation of the CHO Direction in its terms; and/or
d. To the extent that the Commissioner of Police purports to exercise power under the Public Health Act to make the Employer Direction, he is not an authorised officer or emergency officer authorised to make the Employer Direction in accordance with the Public Health Act; and/or
e. The Employer Direction is not within the scope of authority to give directions conferred on the Commissioner by the Police Act or any regulations made thereunder.
4. Further, and in the alternative, neither the Commissioner nor any officer appointed by the Commissioner for that purpose is authorised by s 23 of the Police Act to take action to terminate the employment of a Member of the Police Force, police auxiliary officer, cadet or liaison officer by reason of apprehended bias arising from public statements of prejudgment by the Deputy Commissioner of Police on or about 24 November 2021.
5. Further, and in the alternative, the Employer Direction is ultra vires the Police Act in that it is legally irrational.
The challenge to the Direction of the Chief Health Officer asserts, in substance, that, on its proper construction, the Public Health Act does not authorise the making of the Direction, alternatively, the Chief Health Officer erred in making the Direction so that the Direction is not legally valid.
The substantive relief sought by the applicant includes:
1.a declaration that the Employer Direction is invalid;
2.a permanent injunction restraining the State of Western Australia, alternatively the Commissioner of Police, themselves or by their officers or agents from taking any steps under the Employer Direction.
Order 56 r 5(2)(j) and the power to summarily dismiss
Order 56 r 5(2) sets out the things that the court may do on an application for judicial review. The 12 paragraphs of r 5(2) include interlocutory matters as well as the power to grant or refuse the application, including the grant of a remedy other than the remedy applied for.
Paragraph (j) gives the court power to refuse the whole or part of the application 'if it has no reasonable prospect of succeeding'.
The principles to be applied where a respondent applies for an order that that the court refuse an application under O 56 r 5(j) were discussed by Quinlan CJ in Goldrange Pty Ltd v Western Australian Planning Commission[2] and Prichard J in Coast Ward Ratepayers Association (Inc) v Town of Cambridge.[3]
[2] Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [6] - [9].
[3] Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 [66] - [70].
In particular, Quinlan CJ referred to the observations of Hayne, Crennan, Keifel, and Bell JJ in Spencer v Commonwealth[4] on the power in s 31A of the Federal Court of Australia Act 1976 (Cth). Pursuant to that section, the court may give judgment if satisfied that a party has no reasonable prospect of successfully defending or prosecuting a proceeding or part of a proceeding. Their Honours said:
[F]ull weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is 'no reasonable prospect' of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to 'no reasonable prospect' can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase 'just and equitable' when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[5]
[4] Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.
[5] Spencer v Commonwealth [60].
Consideration
Whether the State of Western Australia is properly named as a respondent
The first issue raises the naming of the State of Western Australia as the second respondent to the application. The State has applied for the proceedings against it to be dismissed.
At this stage, the lack of clarity in the application has to be addressed. On its face, the application seeks to review the conduct of the Commissioner on 24 November 2021 in making the Employer Direction. Ground 4 of the application, however, refers to apprehended bias said to arise from quite separate conduct of a Deputy Commissioner (although on the same day) relating to likely disciplinary processes under s 23 of the Police Act.
The principles regarding who may be a party to judicial review proceedings have some flexibility. Order 56 r 3 requires an applicant to serve an application for judicial review on the person who made the challenged decision or engaged in the challenged conduct, and also on any person who was party to the proceedings in which the decision was made, or the conduct occurred. The court has power under O 56 r 5(2)(b) to order that the application be served on a person whom the court considers 'might have an interest' in the challenged decision or the outcome of the application. The court may also allow a person not served with the application to be heard on it.[6]
[6] See O 56 r 7.
Despite that flexibility, I am satisfied that the State is not properly named as a respondent to the application.
First, to the extent that it challenges the conduct of the Commissioner in making the Employer Direction, the State did not engage in that conduct.
Second, to the extent that the application is treated as challenging the bringing of disciplinary proceedings under the Police Act, the State is not and will not be a party to any proceedings arising out of breach of the Employer Direction.
Third, the relief sought against the State, restraining it from taking any steps under the Employer Direction, misconstrues the nature of the proceedings to which the applicant may be subject. Disciplinary proceedings brought against a member of the Police Force pursuant to s 23 of the Police Act do not involve the State, nor any Minister of the government. An order for demotion or reduction in salary, suspension from duty, discharge or for dismissal or cancellation of appointment, in the case of the applicant, who is not an officer, does not have effect unless or until it is imposed or confirmed by the Commissioner. An order does not require any decision or confirmation by anyone outside the Police Force.[7]
[7] The Commissioner also has power, pursuant to s 8, to remove a non-commissioned officer or constable. The exercise of that power is subject to the approval of the Minister. The application does not challenge any future exercise of that power. The evidence before the court shows that the Commissioner is following the process which might result in action under s 23.
It would be open for the court to order that the application be served on the State on the basis that it might have an interest, particularly given the relationship between the Employer Direction, the Directions of the Chief Health Officer, and the public health advice regarding the mandatory vaccination of specified groups within the workforce. Those matters go beyond the relationship between the Commissioner and members of the Police Force. Joining the State as an interested party in that sense, however, would not make it liable to the relief sought by the applicant by way of a permanent injunction.
Finally, to the extent the applicant's claim against the State might rely on the proposed injunction restraining the State 'by its officers or agents', the applicant points to nothing in either the evidence or the statutory framework to support a claim that the Commissioner or other officers in the Police Force would be acting as 'officers or agents' of the State in any action they took pursuant to s 23 of the Act. The Police Act confers authority directly on the Commissioner and officers, not as agents but as persons with original statutory authority.
I will uphold the application to dismiss the proceedings against the State because they have no reasonable prospect of succeeding.
Grounds 2 and 3(e)
In the proceedings for an interlocutory injunction, I held that the plaintiff had an arguable case for relief under these grounds, which in substance allege that the Employer Direction is not a lawful and reasonable direction and not within the scope of the authority conferred on the Commissioner by the Police Act. It necessarily follows that those grounds will not be summarily dismissed.
Ground 1
Section 157(1)(j) of the Public Health Act empowers authorised officers, while a serious public health risk continues, to direct any person to undergo medical observation, medical examination or medical treatment, or to be vaccinated, as specified by the officer. The direction may be enforced under s 158, including by the use of reasonable force to apprehend and detain a person, remove clothing if necessary, and vaccinate the relevant person.
The applicant submits that those powers 'cover the field' with respect to who may make an order that a person be vaccinated and the circumstances in which that may occur. That is, the applicant could have been ordered to be vaccinated by an emergency officer, but that is the only circumstance in which vaccination could lawfully be ordered. The applicant puts forward no authority that would support the contentions in this ground. He advances two reasons in support of the argument: first, that mandatory vaccination is an incursion into the right of bodily autonomy and integrity; second, that the Public Health Act contains important safeguards which condition the exercise of the power.
Both of those reasons may be accepted as correct. The right of bodily integrity is undoubted.[8] Section 158 does contain important conditions on the exercise of the power. But that is not sufficient to support a conclusion that s 157 and s 158 prescribe the only circumstances in which a power to order medical examination or treatment, or vaccination, may be exercised.
[8] See, for example, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218.
First, s 157(1)(j) and s 158 are not confined to vaccination but include medical observation, medical examination and medical treatment. The applicant has not appeared to suggest that those other powers are similarly confined. Apart from compulsory forensic examination in the course of criminal investigation,[9] there are other statutes which authorise medical examination.[10] This court, under O 28 r 1 of its Rules, may require a party to submit for medical examination.[11] Such orders are not enforced by detaining and physically restraining the subject of the order, that is by directly infringing bodily integrity, but by attaching consequences for non‑compliance (such as a stay of proceedings, striking out pleadings, or the suspension of statutory entitlements).
[9] See Criminal Investigation Act 2006 (WA), pt 9 div 5.
[10] See for example Part VII of the Workers' Compensation and Injury ManagementAct1981 (WA); Child Care Services (Child Care) Regulations 2006 (WA), reg 103.
[11] Although not procedures such as DNA testing: see Furesh v Schor [2013] WASCA 231; (2013) 45 WAR 546.
Second, it is not suggested by any party that the Commissioner can violate the bodily integrity of the applicant by forcibly vaccinating him. Sections 157 and 158 provide legal justification for conduct which would otherwise be an assault. That is not the way in which the Employer Direction operates.
The question is whether the Commissioner can attach consequences to the conduct of the applicant in refusing vaccination when the advice of the Chief Health Officer was that mandatory vaccination directions were required for workforces that were at a higher risk of exposure, that had greater potential to transmit the virus to vulnerable populations, or were themselves critical to the functioning of society;[12] and where being vaccinated had, by direction of the Chief Health Officer, been made a requirement of entering or remaining on police premises.
[12] See, affidavit of Kylie Maree Whiteley sworn 16 December 2021, KMW 40.
There is, in my opinion, a real question to be tried regarding the power of the Commissioner, in the exercise of his powers of management, to mandate vaccination with the sanction of disciplinary proceedings for disobedience. That question is advanced in Grounds 2 and 3(e). But the contention advanced in Ground 1 is not reasonably arguable.
Ground 3 (a), (b), (c) and (d)
The respondent submitted that Ground 3(a) alleges, in essence, that the Employer Direction cannot be valid unless the Directions of the Chief Health Officer are valid. The respondent submitted that the ground is without merit because the validity of the Directions of the Chief Health Officer is not a condition of validity for the Employer Direction.
In my opinion, the respondent's submission is not the necessary reading of the applicant's Ground 3(a). Whether or not the two directions are legally interdependent, they are factually connected. On a very obvious level, the inability of the applicant to be rostered or lawfully enter and remain on police premises when unvaccinated would be relevant to whether the Employer Direction is legally rational.
Grounds 3(b) and (c) are apparently based on the Employer Direction made by the Commissioner being an implementation of the Chief Health Officer's Direction.
The applicant submits that the two directions are inextricably linked. He submits that on the face of the Employer Direction, the directions made by the Chief Health Officer were a relevant, perhaps determinative, consideration. The evidence of communication from the Chief Health Officer to the Commissioner and the Premier also demonstrate a factual relationship between the advice of the Chief Health Officer, culminating in the directions he issued, and the subsequent Employer Direction by the Commissioner.
The applicant appeared to go beyond the terms of the grounds stated in the application and submitted that this ground encompasses the ground of taking into account an irrelevant consideration (the validity of the Directions by the Chief Health Officer). The applicant further submitted that his case, captured by ground 3(b), is that the Employer Direction is unnecessary in light of the Directions issued by the Chief Health Officer.
More generally, the applicant submitted that there was a serious question as to the interconnectedness of the two directions and that, in the event that the proceedings challenging the validity of the directions by the Chief Health Officer remain on foot, these grounds should also remain.
There is, in my opinion, an arguable case that the Employer Direction was at least factually, if not legally, based on the circumstances established by the Chief Health Officer's Directions which precluded unvaccinated members of the Police Force from attending at their place of work. It is not, in my opinion, a sound exercise of the court's discretion to summarily dismiss the applicant's claims in these grounds.
Ground 3(d) contends that the Commissioner is purporting to exercise power under the Public Health Act when not an authorised officer or emergency officer. The applicant submitted that directions in the nature of the Employer Direction must be made within the framework of the Public Health Act because it is only under that Act that the safeguards of the mandatory relevant considerations set out in s 3(2) would apply. The ground is without merit. The Employer Direction is not an exercise or purported exercise of power under the Public Health Act, and it stands or falls on the powers of the Commissioner under the Police Act. The appellant has no reasonable prospect of succeeding on the ground.
Ground 4
The factual foundation for ground 4 is not contentious.
On 24 November 2021, Deputy Commissioner Colin Blanch was interviewed on radio and made the comment: 'the remaining ones [referring to police officers who refused to get vaccinated] will probably find themselves out of a job in due course … so I think that's the inevitable outcome, as sad as that is'.[13]
[13] Affidavit of Colin John Blanch sworn 16 December 2021, CJB19.
The respondent submits that Deputy Commissioner Blanch has had minimal involvement in the disciplinary processes for officers charged with breaching the Employer Direction. Deputy Commissioner Blanch has deposed that he will not participate in or conduct examinations in any disciplinary hearings for officers charged with breaching the Employer Direction.[14]
[14] Affidavit of Colin John Blanch sworn 16 December 2021, [58] - [60].
The applicant submitted that the inference is open that the interview conducted by Deputy Commissioner Blanch and the comments referred to were made at the direction of the Commissioner. Accordingly, the applicant submits, the inference is open that the Commissioner has already formed the view that officers who fail to be vaccinated will be dismissed, rather than subject to some other disciplinary outcome under s 23. Any examiner appointed by the Commissioner to conduct an examination will therefore also be infected by an apprehension of bias that the only outcome the Commissioner will accept is a recommendation that the person subject to the examination will be dismissed.
The applicant seeks to avoid the obvious difficulty that the inferences for which he contends are not based on any identified facts by arguing that the inferences referred to will be contested questions of fact for trial.
The applicant's argument does not align with the terms of the application for review: first, the conduct to be reviewed is specified as the Employer Direction; second, ground 4 alleges apprehended bias arising from public statements of prejudgment by the Deputy Commissioner of Police, and not any direction by the Commissioner to make those statements; third, the ground is not consistent with the relevant paragraph in the relief sought, by which the applicant seeks an injunction restraining the Commissioner from taking any steps under the Employer Direction.
The misalignment may be corrected by an amendment to the application. In its present form, ground 4 has no reasonable prospects of succeeding.
Ground 5
The respondent submitted that the problem with this ground was that the applicant has not particularised the bases for the allegation of irrationality.
The respondent further submitted that the applicant would not be able to establish irrationality in the required sense where the Commissioner acted on the advice and recommendation of the Chief Health Officer whose functions, pursuant to s 6 of the Public Health Act, include providing advice or recommendations to any person or body on matters relevant to public health; and where, on 22 September 2021 and subsequently extended, the Minister for Health declared a public health state of emergency in respect of the whole of the State of Western Australia pursuant to s 167 of the Public Health Act.
In his subsequent submissions, the applicant put the argument that the Employer Direction is not rationally connected to the statutory purpose for which any power of the Commissioner to make a lawful order is conferred. He submitted, relying on comments in the joint judgment in Minister for Immigration and Citizenship v Li,[15] that the direction is 'an obviously disproportionate response', although it was not entirely clear to what the Employer Direction was disproportionate.
[15] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [74].
More relevantly, the applicant submitted that the law was developing with regard to review of executive action on the grounds of irrationality. Consistently with that development, the Employer Direction, being a burden on a freedom otherwise recognised by the law, must be a proportionate (that is rational) response to a perceived mischief.[16]
[16] LibertyWorks Inc v Commonwealth [2021] HCA 18; (2021) 95 ALJR 490 [46]; Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 [66] - [70]; McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 [68].
Later in his submissions, the applicant appears to argue that the requirement for officers to be vaccinated is disproportionate where, as at the time the direction was made and required to be complied with, COVID‑19 was not circulating in the community and other less restrictive interventions were available. It was not entirely clear whether that argument would be maintained upon the eventual opening of the State's borders (an event likely to occur before this matter is heard) or the occurrence of community transmission within Western Australia, despite the closed borders (an event which has already occurred). At the time that I am writing these reasons, it is public knowledge that other states are recording daily case numbers in the tens of thousands.
In the circumstances, however, I am not satisfied that I should dismiss ground 5 as having no reasonable prospect of success. The issue relates to the particular direction made by the Commissioner on 24 November 2021 and whether the mandating of vaccination was then legally rational, having regard to the nature of the power being exercised by the Commissioner in making the direction.
I am also satisfied, however, that ground 5 should not proceed in its present form, and that the applicant should give full particulars of the basis upon which he says the Employer Direction is legally irrational.
Conclusion
In summary, I would dismiss the claim against the State of Western Australia and remove it as the second respondent to this application.
Grounds 1, 3(d), and 4 have no reasonable prospects of success and will be dismissed. Ground 5 should not proceed in its present form. The applicant will be required to provide full particulars of his claim of legal irrationality.
The balance of the application should, however, proceed to trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TB
Associate to the Honourable Justice Allanson
12 JANUARY 2022
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