Hunt v Gerrard; Ishiyama v Aitken

Case [2025] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:

Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126

PARTIES:

In Appeal No 3513 of 2024:

THOMAS GORDON HUNT
(first applicant)
KALIESHA LEE O’KEEFE
(second applicant)
OCHRE CATERING PTY LTD (ACN 605 220 963) T/A OCHRE RESTAURANT
(third applicant)
TROJON HOSPITALITY PTY LTD (ACN 648 268 713) T/A GOONDI HILL HOTEL
(fourth applicant)
BEAN OBSCENE PTY LTD (ACN 165 542 138) T/A RAMSON COFFEE
(fifth applicant)
SKY MAKAYLA RIXON T/A ELIXIR TAPAS BAR
(sixth applicant)
MISSION BEACH TAVERN PTY LTD (ACN 167 635 921) T/A MISSION BEACH TAVERN
(seventh applicant)
MIGHTY MAC PTY LTD (ACN 641 483 669) T/A HELGA’S PANCAKE HOUSE
(eighth applicant)
MARBEL FOXHOLE PTY LTD (ACN 624 784 872) T/A BAR WUNDER
(ninth applicant)
DAITHI JUDE SPALDING T/A SLAP AND PICKLE
(tenth applicant)
KANGAVENTURE PTY LTD (ACN 117 452 098) T/A THE BILLABONG KURANDA
(eleventh applicant)
JAR CONSULTING SERVICES PTY LTD (ACN 602 440 184) T/A BAMBINO ESPRESSO
(twelfth applicant)
v
DR JOHN GERRARD, CHIEF HEALTH OFFICER
(first respondent)
STATE OF QUEENSLAND
(second respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervener)

In Appeal No 3515 of 2024:

CHERIE JEAN ISHIYAMA
(first applicant)
ROBERT WILLIAM WYLIE
(second applicant)
PETER GRANT MERRILL
(third applicant)
MEGAN RUTH PYNE
(fourth applicant)
SARAH DEW
(fifth applicant)
MEAGAN CLARE CURNOW
(sixth applicant)
MANDA SMOLCIC
(seventh applicant)
v
DR PETER AITKEN, FORMER CHIEF HEALTH OFFICER
(first respondent)
DR JOHN GERRARD, CHIEF HEALTH OFFICER
(second respondent)
STATE OF QUEENSLAND
(third respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervener)

FILE NO/S:

Appeal No 3513 of 2024
Appeal No 3515 of 2024
SC No 966 of 2022
SC No 367 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:


Supreme Court at Brisbane – [2024] QSC 6 (Martin SJA)

DELIVERED ON:

8 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2024

JUDGES:

Bond and Brown JJA and Ryan J

ORDERS:

In proceeding Appeal No 3513 of 2024:

1.   The applicants have leave to appeal.

2.   The appeal is allowed.

3.   The respondents must pay the appellants’ costs of the appeal.

4.   The orders made by the primary judge on 27 February 2024 in proceeding BS966/22 are set aside and in lieu thereof it is ordered that -

(a)     the respondents’ summary dismissal application is dismissed; and

(b)     the respondents must pay the applicants’ costs of the application.

In proceeding Appeal No 3515 of 2024:

1.   The applicants have leave to appeal.

2.   The appeal is allowed.

3.   The respondents must pay the appellants’ costs of the appeal.

4.   The orders made by the primary judge on 27 February 2024 in proceeding BS367/22 are set aside and in lieu thereof it is ordered that -

(a)     the respondents’ summary dismissal application is dismissed; and

(b)     the respondents must pay the applicants’ costs of the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – GENERALLY – where the Chief Health Officer issued a series of directions regarding vaccination against COVID-19 – where the…

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AGLC
Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126
Case
[2025] QCA 126
Decision Date

CaseChat Overview and Summary

In Hunt v Gerrard and Ishiyama v Aitken, the applicants sought to challenge the validity of certain directions issued by the Chief Health Officer in relation to COVID-19 vaccination. These directions were made under the Public Health Act 2005 (Qld) and were subsequently revoked before the proceedings reached a final decision. The respondents applied for summary dismissal on the basis that the applicants no longer had standing to seek the relief claimed. The primary judge granted the summary dismissals, finding that the applicants had lost standing as the relief sought would have no foreseeable consequences for them. The applicants appealed this decision to the Queensland Court of Appeal.

The primary legal issues before the Court were whether the primary judge erred in concluding that the applicants had no standing to seek declaratory relief concerning alleged past breaches of their common law rights or their rights under the Human Rights Act 2019 (Qld). The Court also considered whether the primary judge erred in applying the correct standard of review, exercising power under the Judicial Review Act 1991 (Qld) s 48 in relation to claims that were not made under that Act, and failing to apply a very high threshold to the summary application. The Court further examined whether the primary judge's decision should be affirmed on the alternate grounds proposed by the respondents and the Attorney-General, and whether the primary judge erred in awarding costs to the respondents from 4 February 2023.

The Court of Appeal held that the primary judge erred in concluding that the applicants had no standing to seek declaratory relief concerning past infringements of their common law rights or their rights under the Human Rights Act 2019 (Qld). The Court found that the applicants had standing to seek such declarations, even in the absence of other asserted legal consequences. The Court also held that the primary judge erred in failing to appreciate that once the Attorney-General and the Commission had become parties, the question of the standing of the applicants had become irrelevant. The Court concluded that the primary judge's decision should be set aside, and the respondents' summary dismissal applications should be dismissed. The respondents were ordered to pay the applicants' costs of the appeal and the application.

In proceeding Appeal No 3513 of 2024:
1. The applicants have leave to appeal.
2. The appeal is allowed.
3. The respondents must pay the appellants’ costs of the appeal.
4. The orders made by the primary judge on 27 February 2024 in proceeding BS966/22 are set aside and in lieu thereof it is ordered that -
(a) the respondents’ summary dismissal application is dismissed; and
(b) the respondents must pay the applicants’ costs of the application.
In proceeding Appeal No 3515 of 2024:
1. The applicants have leave to appeal.
2. The appeal is allowed.
3. The respondents must pay the appellants’ costs of the appeal.
4. The orders made by the primary judge on 27 February 2024 in proceeding BS367/22 are set aside and in lieu thereof it is ordered that -
(a) the respondents’ summary dismissal application is dismissed; and
(b) the respondents must pay the applicants’ costs of the application.

Orders

Orders of the court

In proceeding Appeal No 3513 of 2024:

1. The applicants have leave to appeal.

2. The appeal is allowed.

3. The respondents must pay the appellants’ costs of the appeal.

4. The orders made by the primary judge on 27 February 2024 in proceeding BS966/22 are set aside and in lieu thereof it is ordered that -

(a) the respondents’ summary dismissal application is dismissed; and

(b) the respondents must pay the applicants’ costs of the application.

In proceeding Appeal No 3515 of 2024:

1. The applicants have leave to appeal.

2. The appeal is allowed.

3. The respondents must pay the appellants’ costs of the appeal.

4. The orders made by the primary judge on 27 February 2024 in proceeding BS367/22 are set aside and in lieu thereof it is ordered that -

(a) the respondents’ summary dismissal application is dismissed; and

(b) the respondents must pay the applicants’ costs of the application.

Background

Background to the litigation

In each proceeding in this Court, orders should be made granting leave to appeal pursuant to s 48(5) of the JRA, allowing the appeal, setting aside the orders made below and substituting orders dismissing the summary dismissal application and requiring the respondents to pay the applicants’ costs of the application and of the appeal.Relevant legislative and procedural background Because there is no appeal before this Court by the Johnson applicants in the Johnson proceeding, the legislative and procedural background need only be considered in relation to the Hunt and Ishiyama proceedings.The legislative regime By the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) a new Part 7A was inserted into Chapter 8 of the PHA. The new part contained ss 362A to 362MAJ. It is appropriate to outline the structure of Chapter 8 as so amended. Pursuant to s 319 the Minister was empowered to declare by a signed written order a public health emergency in the event of being satisfied that there was a public health emergency, and it was “necessary to exercise powers under [chapter 8] to prevent or minimise serious adverse effects on human health.” The term “public health emergency” was defined as “an event or a series of events that has contributed to, or may contribute to, serious adverse effects on the health of persons in Queensland.” An order made under s 319 was defined as a “public health emergency order”. Pursuant to s 324 the Minister was required to end a declared public health emergency as soon as the Minister was satisfied it was no longer necessary to exercise powers under chapter 8 to prevent or minimise serious adverse effects on human health. Amongst other things, a public health emergency order was required to state the duration of the order (s 320) and the Minister was obliged to publish the order by gazette notice and in relevant mass media as soon as possible after it was declared (s 321). A public health emergency order started when declared and ended 7 days thereafter, unless ended sooner by the Minister under s 324 or a regulation made under s 323 extended the period of the declared public health emergency beyond the end of the 7 days (s 322). Pursuant to s 323, the period of a declared public health emergency could be extended or further extended by periods of not more than 90 days. “COVID-19 emergency” was a term defined in s 315 as “…the public health emergency declared by the Minister on 29 January 2020 under section 319(2), as extended and further extended under section 323”. Division 1 of Part 7A contained s 362A. Section 362A stated that the purpose of Part 7A of the PHA was to confer additional powers for the COVID-19 emergency on the chief health officer and emergency officers. Division 2 of Part 7A dealt with the powers conferred on the chief health officer. As to this:(a)Section 362B empowered the chief health officer to give directions in these terms:“362B Power to give directions(1)This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.(2)The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions—(a) a direction restricting the movement of persons;(b) a direction requiring persons to stay at or in a stated place;(c) a direction requiring persons not to enter or stay at or in a stated place;(d) a direction restricting contact between persons;(e) any other direction the chief health officer considers necessary to protect public health.(3)A public health direction must state—(a) the period for which the direction applies; and(b) that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.”(b)Section 362C specified when public health directions took effect.(c)Section 362D provided that a person to whom a public health direction applied must comply with the direction unless the person had a reasonable excuse and specified that the maximum penalty for non-compliance was a fine of 100 penalty units or 6 months imprisonment.(d)Section 362E obliged the chief health officer to revoke a public health direction as soon as reasonably practicable after becoming satisfied that the direction was “no longer necessary to assist in containing, or to respond to, the spread of COVID-19 within the community.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants have succeeded in overturning the orders made below. There is no good reason why costs should not follow the event and they should not have their costs in this Court and below.Conclusion In proceeding Appeal No 3513/24, I would make the following orders: (a)The applicants have leave to appeal.(b)The appeal is allowed.(c)The respondents must pay the appellants’ costs of the appeal.(d)The orders made by the primary judge on 27 February 2024 in proceeding BS966/22 are set aside and in lieu thereof it is ordered that –(i)the respondents’ summary dismissal application is dismissed; and(ii)the respondents must pay the applicants’ costs of the application. In proceeding Appeal No 3515/24, I would make the following orders:(a)The applicants have leave to appeal.(b)The appeal is allowed.(c)The respondents must pay the appellants’ costs of the appeal.(d)The orders made by the primary judge on 27 February 2024 in proceeding BS367/22 are set aside and in lieu thereof it is ordered that –(i)the respondents’ summary dismissal application is dismissed; and(ii)the respondents must pay the applicants’ costs of the application. BROWN JA: I agree with the orders proposed by his Honour Justice Bond. I also agree with his Honour’s reasons. However, to the extent that his Honour has determined that a past infringement of a human right without asserted legal consequences would create a sufficient interest to seek a declaration on a stand alone basis under s 10 of the CPA, I consider it is unnecessary in the present case to express a position in that regard. Given that, as Justice Bond has determined, the appellants have standing to seek declarations for past infringements of their identified common law personal rights or interests, even in the absence of other asserted legal consequences, the applicants have standing to seek declarations for past infringements of human rights pursuant to s 59(1) of the HRA. While there is merit in Justice Bond’s analysis that s 48 of the HRA would operate when construing s 10 of the CPA, to extend the jurisdiction to hear an application for a declaratory order only on the basis of a past infringement of human rights, where there are no asserted consequences, I do not consider that the legal position is clear. While s 11 of the HRA provides that all individuals in Queensland have human rights, it has been held in two single judge decisions of this Court that the HRA does not itself create legal rights that have free-standing operation.[41] That view is supported by ss 58 and 59 of the HRA. Section 58 makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or to make a decision which fails to give proper consideration to human rights relevant to the decision. Section 59 of the HRA provides that a person may seek relief or remedy on the ground of unlawfulness arising under s 58 “if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58 unlawful.” Section 59(5) provides that a person “may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.” Those matters could potentially suggest a different conclusion may be reached as to whether s 48 HRA would necessarily be interpreted in a way that would extend the application of s 10 of the CPA so that a past infringement of a human right under the HRA with no asserted legal consequences would constitute a “sufficient interest” from a past infringement of a common law personal right or interest. However, given the fact that the appellants have established standing and s 59 of the HRA applies, the present case is not, in my view, the appropriate vehicle to finally determine the application of s 10 of the CPA.[41]Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 at [197]; BZN v Chief Executive, the Department of Children, Youth, Justice and Multicultural Affairs [2023] QSC 266 at [66].

Ratio Decidendi

Legal Principle Established

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