Frech v The State of South Australia

[2020] SASC 186

Supreme Court of South Australia

(Civil: Application)

FRECH & ANOR v THE STATE OF SOUTH AUSTRALIA

[2020] SASC 186

Ruling of The Honourable Justice Livesey (ex tempore)

28 September 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY

Application for judicial review.

The applicants were subject to a direction that they remain in quarantine for 14 days following their return from overseas on 15 September 2020.  They sought judicial review of this direction on the basis that the first applicant had urgent medical needs which could not be adequately met.

Held, dismissing the application; there is no utility to the making of an order by way of judicial review, or any other order, because the matter will come to a natural end as of midnight 28 September 2020.

Emergency Management (Cross Border Travel No 13) (COVID-19) Direction 2020 (SA), referred to.

FRECH & ANOR v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 186

Civil:        Application

1. LIVESEY J:        This is an application for urgent interim relief in connection with an application for judicial review. 

2. For the purposes of this ruling, it may be accepted that this Court has jurisdiction.  That is so whether as part of the powers available to the Court on judicial review, or perhaps in the exercise of the inherent powers of the Court.  Under these heads the Court may make orders quashing the directions applicable to the applicants, or perhaps ordering their release in a manner akin to a grant of relief under a writ of habeas corpus. 

3. The precise basis for the exercise of power, and precisely what power is to be exercised, has not been addressed by the applicants with any clarity.  There has been no real attempt to show what issues are raised by way of judicial review.  What has been put to me, variously, is that the directions applicable to the applicants should be quashed, or that they are entitled to relief in the nature of mandamus.  No real case of illegality has been articulated.

4. Whilst I am told that the first applicant has urgent medical needs, and there is some support for that, there is no evidence at all, and certainly no expert medical opinion evidence, to show that the first applicant is at any serious risk over the next eight hours.

5. I frame the issue in that way because it is agreed that, as of midnight tonight, both applicants will no longer be subject to the Emergency Management (Cross Border Travel No 13) (COVID-19) Direction 2020 (SA), being the direction applicable to them because they returned from overseas on 15 September 2020.

6. It is suggested from the bar table that there is evidence before me that the manner in which the applicants have been quarantined has been determined erroneously by information that they may in some way have been exposed to a baggage handler in Singapore who was exposed to COVID-19.  It is said that that information is unreliable and inaccurate.  Precisely how that affects the legality of the quarantine to which the applicants have been subjected has not been made clear to me.  Nonetheless, I return to the proposition that, within eight hours or thereabouts, neither applicant will be subject to the relevant direction and both will be free to return to their home together.

7. At my request, counsel for the State has obtained information about making available to the first applicant his prosthesis, and what is described as an EMT machine, both of which were prescribed by the surgeon in Germany who appears to have had oversight for the first applicant’s spinal surgery recently.  That equipment will be made available to the first applicant in the next hour or two. 

8. Nonetheless, in my opinion, in the circumstances I have outlined, there is no utility to the making of an order by way of judicial review, or indeed any other order, because this matter will come to a natural end as of midnight tonight.

9. In the circumstances the application for urgent interim relief is refused.