Falconer v Commissioner of Police [No 3]

[2022] WASC 30

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FALCONER -v- COMMISSIONER OF POLICE [No 3] [2022] WASC 30

CORAM:   ALLANSON J

HEARD:   27 JANUARY 2022

DELIVERED          :   3 FEBRUARY 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 - Discovery - Leave to adduce expert evidence - Turns on own facts

Legislation:

Emergency Management Act 2005 (WA)
Public Health Act 2016 (WA)

Result:

Leave to adduce expert evidence refused
Orders for discovery

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):

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

ALLANSON J:

Introduction

1. Following my earlier ruling on the State's application for summary dismissal, the applicant has filed an amended application in which he relies on the following grounds:

   2.The Employer Direction is not a lawful and reasonable direction given by the Commissioner of Police as an employer under the Police Act 1892 (WA) 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 2016 (WA) and/or the Police Act 1892 (WA) in that:

   a.The Employer Direction misconstrues the Public Health Act 2016 (WA) 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 2016 (WA) 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

   e.The Employer Direction is not within the scope of authority to give directions conferred on the Commissioner by the Police Act 1892 (WA) or any regulations made thereunder.

   5.Further and in the alternative, the Employer Direction is ultra vires the Police Act 1892 (WA) in that it is legally irrational.

   Particulars

   The Employer Direction is ultra vires the Police Act 1892 (WA) in that it is legally irrational on the basis that:

   (a)In the event that the CHO Direction is valid, then the Employer Direction cannot rationally address any risk to health and safety to the workforce or community which has not already been addressed by the CHO Direction;

   (b)It proceeded on that basis that the only way a police worker could present an acceptable risk to the community and the police workforce was by being fully vaccinated by the specified dates.  It was irrational for the Employer Direction to provide no available alternative means of protecting the safety of the community or the workforce that did not involve compulsory interference with a police worker's common law right to bodily integrity;

   (c)There was no rational basis for the Employer Direction in circumstances where the police workforce had performed work for a period of over 20 months since the declaration of the pandemic without the Employer Direction and without any identified risk to health and safety of other police workers or the community arising from that work;

   (d)There is no rational basis for the Employer Direction to apply to the entire workforce without any differentiation between the nature of their work, whether they are on leave, the location their work, and the exposure of affected employees to members of the community and/or police workforce members in their capacity as police workers;

   (e)There is no rational basis for the Employer Direction made at a time when only 5% of the Police workforce were unvaccinated and there was no rational basis to conclude that the vaccination status of that small portion of the workforce would make any material difference to the safety of the community and/or the safety of the balance of the police workforce;

   (f)There was no rational basis for the Employer Direction in that the police workers to whom it applies may remain unvaccinated in the community if terminated from employment, thus making no difference to the level of threat they would pose to the community and/or the police workforce with whom they could interact as private citizens;

   (g)Preventing unvaccinated police officers or other members of the police workforce from remaining in employment in any capacity whatsoever is untethered from any risk identified in the Employer Direction or in the CHO Direction;

   (h)The Employer Direction was made without the Commissioner applying any independent thought or rational analysis to the level of risk arising from not taking the measure compared to the identification of the comparative adverse consequences of making the direction on affected employees;

   (i)It is irrational to make the Employer Direction without any regard to the likely duration of the State of Emergency and thus the duration of the CHO Direction in making the Employer Declaration;

   (j)Mandating the vaccination of police officers in the circumstances of the Employer Direction will not limit the spread of Covid-19 in Western Australia;

   (k)A policy of mandatory vaccination without conscientious objection exemptions is rationally inconsistent with the stated purpose of increasing the protection of the community and/or the police workforce via increased levels of vaccination; and

   (l)It is irrational for the Employer Direction to remain in force in circumstances where there is no ongoing, periodic public health risk assessment which takes into account vaccination rates in the community and the effectiveness of the vaccines against mutations of Covid-19.

2. The applicant filed a minute of four proposed categories of discovery.

3. The applicant also applied for leave to adduce expert evidence.  For the reasons given in CIV 2286 of 2021, I will not give leave to adduce expert evidence on the questions proposed by the applicant.

4. These reasons, accordingly, are confined to the question of discovery.  I will not repeat the general comments made in the related reasons on discovery in judicial review proceedings.

5. I would, however, make the following observations.  The applicant referred, in particular, to the recent decision of the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 [29] as correctly explaining the approach to irrationality. The court was there concerned with whether a state of satisfaction, which was a jurisdictional condition to the exercise of power, had been reached on a legally reasonable basis. The exercise of power in the present case is not conditioned by any statutory criterion about which the Commissioner must be satisfied. It is a power of a different character.

The proposed categories of discovery

1. The third and fourth categories are in these terms:

   3.All documents upon which the Commissioner relied to make the Employer Direction, including all medical opinions, statistical analyses, internal reports, minutes of meetings, or advice from the Department of Health.

   4.All documents recording or referring to the Commissioner's reasons for making the Employer Directions.

2. The documents in category 3 are, in my opinion, sufficiently relevant in that they would establish the material before the Commissioner upon which the decision was based.

3. Similarly, documents recording or referring to the Commissioner's reasons, limited to documents made or adopted by the Commissioner, would meet the test of being both relevant and within the criteria in O 1 r 4A of the Rules of the Supreme Court 1971 (WA).

4. The first proposed category of documents[1] is in these terms:

All documents, including correspondence to and from the WA Police Force or the Commissioner and his direct reports, concerning employee management, referring to management of the Western Australian Police Force, by reference to COVID-19 vaccinations.

[1] As amended at the hearing of the application.

1. In his written submissions, the applicant submitted that this category goes to the extent to which the Commissioner considered making the Employer Direction in pursuit of an employee management goal.  The amendments made at the hearing appear to limit that submission.  Senior Counsel for the applicant confined the scope to management of the Western Australian Police Force by reference to COVID‑19 vaccinations.

2. Even as amended, the management of the force by reference to vaccinations is not a matter which is directly raised by the grounds of the application.  It is not alleged that the Employer Direction was made in bad faith, or for an improper purpose.  To the extent that the Commissioner relied upon documents that contain advice relating to employee management, those documents would be picked up by category 3.

3. I am not satisfied that documents in category 1 (other than these which fall into category 3) are relevant to any ground, and in particular that they are essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.

4. Category 2 is in the following terms:

   All documents, including correspondence to and from the WA Police Force or the Commissioner and his direct reports, and medical opinions or scientific advice and data received and/or relied on concerning how restricting access to WA Police facilities from unvaccinated WA Police Force workers pursuant to the Police Directions will decrease the risk of COVID-19 transmission in the community.

5. In his written submissions, the applicant said this category relates to ground 2, and specifically the particular which deals with the risk of transmission of COVID-19 from unvaccinated Police Force employees to the community.  There is no such particular.

6. I am not able to identify the connection between documents in category 2 and the issues which arise on the applicant's grounds of review, except to the extent that it picks up documents relied on in making the Employer Direction.  Those documents are picked up in category 3.

7. I will accordingly make orders for discovery of the following documents:

   All documents upon which the Commissioner relied to make the Employer Direction, including all medical opinions, statistical analyses, internal reports, minutes of meetings, or advice from the Department of Health.

   All documents made or adopted by the Commissioner recording or referring to the Commissioner's reasons for making the Employer Directions.

8. The applications for leave to adduce expert evidence will be refused.

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

3 FEBRUARY 2022