Gerner & Anor v The State of Victoria

This matter came before the High Court of Australia concerning a dispute between Julian Kingsford Gerner and Morgan’s Sorrento Vic Pty Ltd (the plaintiffs) and The State of Victoria (the defendant). The proceedings involved an application by the plaintiffs to amend their statement of claim and a discussion regarding the specific questions to be determined by the Court. The primary focus of the hearing was to establish the procedural path for resolving the case, particularly concerning the existence and scope of an implied freedom under the Australian Constitution.

The central legal issue before the Court was whether an implied freedom of movement exists within the Australian Constitution, and if so, its nature and parameters. The plaintiffs sought to have the Court determine not only the existence of this implied freedom but also the validity of certain provisions of Victorian legislation, specifically section 200(1)(b) and (d), on the grounds that they impermissibly burden this freedom. The defendant, however, argued that it was premature to consider the validity of the legislation until the existence and nature of the implied freedom had been definitively resolved by the Court.

The Court, presided over by a single Justice, ultimately agreed with the defendant's submission that it was more convenient to first determine the question of whether the asserted implied freedom exists. The Court considered that addressing this foundational question would provide a clearer basis for subsequent considerations regarding the validity of the legislation. The parties agreed to proceed on this basis, with the defendant to file a demurrer on the single ground concerning the implied freedom. The Court also made orders regarding the amended statement of claim and the timetable for submissions, with a hearing date set for 6 November 2020.