Knowles v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Knowles v Commonwealth of Australia [2022] FCA 741

File number(s): VID 579 of 2021
Judgment of: MORTIMER J
Date of judgment: 27 June 2022
Catchwords:

PRACTICE AND PROCEDURE – application for joinder – application for removal of parties – whether party sought to be joined has standing – applications for joinder and removal of parties granted

PRACTICE AND PROCEDURE – applications for summary dismissal and strike out – pleadings allege invalidity of certain measures relating to COVID-19 restrictions – pleadings allege invalidity due to contraventions of Constitution ch II and ss 51(xxiiiA) and 92, inconsistency with Fair Work Act 2009 (Cth), legal unreasonableness, breach of duty or duties of care, and contravention of Australian Consumer Law s 60 – whether pleadings have reasonable prospects of success – applications to strike out amended statement of claim granted – proceeding summarily dismissed – summary judgment in favour of respondents

Legislation:

Constitution ss 51(ix), 51(xx), 51(xxiiiA), 51(xxxi), 92, 96, 109, 122, ch II

Biosecurity Act 2015 (Cth) ss 475, 477

Competition and Consumer Act 2010 (Cth) pt XI, sch 2 (Australian Consumer Law) ss 2, 5(1)(a), 60

Disability Discrimination Act 1992 (Cth)

Fair Work Act 2009 (Cth) ss 341, 343, 344, 351, 385, 386, 387, pt 3-2

Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N, pt IVA

Freedom of InformationAct 1982 (Cth) s 34(1)(b)

Workplace Relations Act1996 (Cth) s 170NC

Federal Court Rules 2011 (Cth) r 9.08

Emergency Management Act 2005 (WA) ss 56, 58, 67

Human Rights Act 2019 (Qld)

Public and Environmental Health Act 2011 (NT) ss 48, 50, 52

Public Health Act 1997 (Tas) ss 14, 15, 16, 40

Public Health Act 2010 (NSW) ss 7, 132

Public Health Act 2005 (Qld) ss 319, 323, 362B

Public Health Act 2016 (WA) ss 157, 167, 171, 180, 190

Public Health and Wellbeing Act 2008 (Vic) ss 165AB, 165AI, 189, 190, 198, 199, 200, 200(1)(b), 200(1)(d), pt 10 div 3

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth)
Border Restrictions Direction (Qld)
Border Restrictions Direction (No 14) (Qld)
COVID-19 Directions (No 55) 2021: Directions for Mandatory Vaccination for Workers to Attend the Workplace (NT)
COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) (Vic)
COVID-19 Mandatory Vaccination (Specified Workers) Directions (No 8) (Vic)
Freight Movement Code for Domestic Border Controls (Cth)
Health Worker (Restrictions on Access) Directions (No 3) (WA)
Mandatory Vaccination of Certain Workers – No 5 (Tas)
Operational Protocol for Freight Movements entering Queensland (Qld)
Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1) (Vic)
Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No 1) (Vic)
Protocol for Domestic Border Controls – Freight Movements (Cth)
Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW)
Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)
Public Health (COVID-19 General) Order 2021 (NSW)
Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW)

Vaccination Requirements for Certain Workers – No 10

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Details
Case
[2022] FCA 741
Decision Date

CaseChat Overview and Summary

Knowles v Commonwealth of Australia was a challenge to various COVID-19 restrictive measures implemented in Australia at the federal, State, and Territory levels. The case was brought as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976. The applicants sought relief on a number of bases, including the alleged invalidity of certain measures, breach of duties of care, and contravention of the Australian Consumer Law. The respondents sought summary dismissal of the proceeding and removal of some applicants and respondents. The Court was required to determine whether the proceeding should be summarily dismissed, and whether the applicants and respondents should be removed or joined.

The Court found that the proceeding had no reasonable prospects of success and was an abuse of process. The Court also found that the applicants had standing to challenge the impugned measures, and granted the removal and joinder applications. The Court struck out the amended statement of claim, refused leave to file a further amended statement of claim, and granted summary judgment in favour of the respondents. The Court also made orders for the assessment of costs.

The Court dismissed the proceeding, struck out the amended statement of claim, and granted summary judgment in favour of the respondents. The Court also made orders for the assessment of costs. The applicants were not permitted to file a further amended statement of claim.

Orders

Orders of the court

1. Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), Monica Smit be removed as an applicant.

2. Pursuant to r 9.08 of the Federal Court Rules 2011 (Cth), the Hon Bradley Ronald Hazzard, Dr Kerry Gai Chant, Dr N Deborah Friedman and Prof Benjamin Cowie be removed as respondents to the proceeding.

3. Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Cienna Knowles, Mikailah Lehmann, Serafine Nichols and Alison Zerk be added as applicants.

4. The proceeding be entitled Knowles & Ors v Commonwealth of Australia & Ors.

5. Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth), the whole of the amended statement of claim filed on 21 December 2021 be struck out.

6. Leave to the applicants to file and serve any further amended statement of claim be refused.

7. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the respondents.

8. Any costs to be awarded in the proceeding are to be fixed by way of a lump sum.

9. On or before 4.00 pm on 11 July 2022, the parties:

(a) file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively

(b) in the absence of agreement, file written submissions, limited to 5 pages for the applicants and 10 pages for combined submissions on behalf of all respondents, on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The application for a protective costs order was not addressed in any detail at the hearing. Given my conclusions above, it need not be decided. BACKGROUND On 11 March 2020 the World Health Organization declared the outbreak of the COVID-19 virus a pandemic. The virus was present in Australia by this time. Federal and State governments in Australia implemented a variety of restrictive measures designed to reduce the risks posed by the spread of the pandemic, as the various governments assessed those risks. Governments around the world did the same. The reactions by governments, and the measures implemented, were not uniform by any means. This proceeding is a challenge to a number of the measures implemented in Australia at the federal, State and Territory levels, but with a focus on measures relating to COVID-19 vaccinations. The proceeding was commenced by originating application dated 11 October 2021. It was commenced as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). At that time, various measures including vaccination programs and travel restrictions were in place at both the federal and State and Territory levels, many of which had been in place since early 2020, although amended from time to time. There is no dispute that the COVID-19 virus has resulted in large numbers of infections across the community, and a significant level of serious illness and death. However, many restrictions and measures implemented to deal with the pandemic have significantly affected the day-to-day life of most members of the Australian community, although the extent of effect varies considerably across the country, and across the Australian population. In its initial form, the case as pleaded ranged far and wide, and sought some unusual relief. For example:(a)the statement of claim alleged:(i)that:The implementation of the National Plan and the steps that were being undertaken in respect of it were … being implemented or undertaken in the context of a New World Order.…The New World Order is a form of government, having as its purpose the consolidation of the world’s economies to a single economy, and in which the international community are intending to assume responsibility for localised peace and security, with the active support of the world’s major powers.(ii)the “State Orders” were invalid by contravening the Disability Discrimination Act 1992 (Cth), in that:the fact that each of the Applicants and the Group Members are susceptible to an infectious disease at any time in the future, means as a consequence that they thereby have a disability for the purposes of section 48 of the Disability Discrimination Act 1992 (Cth).(b)the originating application sought:(i)a declaration that the members of the Australian population who received vaccinations “received them in circumstances that amounted to an assault and a battery”; and(ii)an order directing the Prime Minister of Australia, together with each of the Premiers and Chief Ministers of the States and Territories of Australia) to meet at the entrance to the Embassy of the Republic of Poland in Canberra and deliver the apology set out in the second schedule to the statement of claim. That draft apology included language to the effect that Prime Minister Scott Morrison, on behalf of himself and the Premiers and Chief Ministers, acknowledged responsibility for putting Australia in danger of falling into a state of lawlessness and totalitarian rule, and that his actions and behaviour constituted a breach of the Nuremberg Code.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for Tasmania opposed the joinder of one of the new individuals, Ms Mikailah Lehmann, on the basis that Ms Lehmann has no standing in respect of the allegations against Tasmania. In support of this contention, counsel for Tasmania submitted that Ms Lehmann has no “special interest” (citing Australian Conservation Foundation v Commonwealth [1980] HCA 53; 146 CLR 493 at 530-31 (Gibbs J)), as either Ms Lehmann has no interest in the impugned Tasmanian Measures, or she has no greater interest in the impugned Measures than any other person in Tasmania.Conclusion on removal and joinder Save for the submissions of Tasmania, there was no real opposition to the removal and joinder applications. I accept the applicants have attempted to regularise the proceeding and address some of the concerns raised by the respondents. In the circumstances, it is appropriate that leave be granted to remove Ms Smit, and to remove the 10th to 13th respondents inclusive, described at [16] above. As to joinder, there being no active opposition to the joinder of Ms Knowles, Ms Nichols, and Ms Zerk, it is appropriate to grant leave for those individuals to be joined as applicants. It is appropriate that only those persons willing to be applicants should remain as applicants, and that at this stage of the proceeding adjustments to the parties which are contended to better reflect the allegations sought to be raised by the proceeding should be permitted. I do not accept the submissions of Tasmania that Ms Lehmann’s joinder should not be permitted because she has no standing. At this early of the proceeding, and given the nature of the allegations made, I am satisfied that Ms Lehmann has a sufficient interest in challenging the impugned Measures. The nature of the Measures, and the risks they were designed to address, mean that a very large proportion of the Australian community has been affected by them in one way or another. That feature may mean that a very large number of people have standing to challenge these measures; however, that fact simply arises because of the nature of the pandemic and the measures implemented to address it. Ms Lehmann alleges she has been denied the opportunity to work, and to earn an income, because the impugned Tasmanian Directions required her to be vaccinated, and she is not. Deprivation of income and the opportunity to work associated with a government measure is a tangible interest sufficient to give Ms Lehmann standing to challenge the Measures. The structure of this proceeding means that it is clear that various applicants have standing in relation to some but not all of the impugned Measures. Properly, most of the respondents have framed their submissions in a way that implicitly accepts this. See also Cotterill v Romanes [2021] VSC 498 at [132]. Given the conclusions I have reached on the summary dismissal applications, there might be a question whether the removal and joinder orders should be made at all. The view I have taken is that the appropriate course is to regularise the proceeding in the way sought by the applicants, and to do this by way of orders made chronologically first, and then to make the orders sought on the respondents’ IAs. Those orders then operate against the applicant parties as they are after the removal and joinder orders. In my opinion that situation best reflects the intention of the applicant parties.APPLICABLE PRINCIPLES

Ratio Decidendi

Legal Principle Established

By [10] of the ASOC, the National Plan is alleged by the applicants to have included:(a)the making of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (2020 Biosecurity Declaration) on 20 March 2020 pursuant to s 475 of the BiosecurityAct 2015 (Cth); (b)a series of intergovernmental agreements and protocols, lockdown measures and restrictions (including the Measures) that have been imposed on the freedom of movement and the exercise of civil liberties of the population of Australia; and(c)“a system and by way of a civil conscription for the vaccination of the population (with vaccines that were recommended, obtained, and paid for by the Commonwealth)”. Commonwealth With respect to the Commonwealth, the applicants include in the impugned ‘Measures’ two directions made pursuant to the s 475 of the Biosecurity Act, being the 2020 Biosecurity Declaration and the Protocol for Domestic Border Controls – Freight Movements and Freight Movement Code for Domestic Border Controls. The Protocol and the Code are two different documents; both were in evidence, through the Commonwealth’s affidavit material. The Code is expressed to be a “binding” document. In these reasons, I refer to both documents as the Freight Movements Measures. Section 475 of the Biosecurity Act provides:(1)The Governor‑General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that:(a)a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and(b)the declaration is necessary to prevent or control:(i)the entry of the listed human disease into Australian territory or a part of Australian territory; or(ii)the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.Note 1:The declaration is a human biosecurity emergency declaration (see section 9).Note 2: For revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.Note 3:A human biosecurity emergency declaration may be varied under section 476. Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to variation of a human biosecurity emergency declaration.(2)A human biosecurity emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.Requirements for human biosecurity emergency declaration(3) A human biosecurity emergency declaration must specify:(a)the listed human disease to which the declaration relates; and(b)the nature of the human biosecurity emergency and the conditions that gave rise to it; and(c)the period during which the declaration is in force.Note 1:The listed human disease specified under paragraph (3)(a) is the declaration listed human disease (see section 9).Note 2:The period specified under paragraph (3)(c) is the human biosecurity emergency period (see section 9).(4) A human biosecurity emergency period:(a)must not be longer than the period that the Health Minister considers necessary to prevent or control:(i)the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or(ii)the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; and(b) in any case, must not be longer than 3 months.Note:A human biosecurity emergency period may be extended under section 476. (Original emphasis.)