Hunt v Gerrard; Ishiyama v Aitken

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.