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Larter v Hazzard

Larter v Hazzard

Case [2022] NSWCA 238 22 November 2022

Judicial Review

Statutory Construction

Statutory Interpretation

Employment Law

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Larter v Hazzard [2022] NSWCA 238
Hearing dates: 26 July 2022
Date of orders: 22 November 2022
Decision date: 22 November 2022
Before: Brereton JA at [1];
Mitchelmore JA at [53].
Decision:
(1) Grant the applicant an extension of time to apply for leave to appeal to the date on which the summons was filed; and
(2) Refuse leave to appeal, with costs.

Catchwords:
HEALTH – Public Health – COVID-19 – Public health orders made under Public Health Act 2010 (NSW), s 7, requiring state-employed healthcare workers to be vaccinated by particular dates – Whether it was open to the Minister to make the orders having regard to the risk to public health – Whether order could have effect beyond 90-day limit imposed by statute – Whether orders inconsistent with International Covenant on Civil and Political Rights

Legislation Cited:
Health Practitioner Regulation National Law 2009 (NSW), ss 20A, 150
Health Services Act 1997 (NSW)
International Covenant on Civil and Political Rights, Arts 12, 17, 18, 19, 26
Interpretation Act1987 (NSW), s 32(2)
Public Health Act 2010 (NSW), s 7
Public Health (COVID-19 Care Services) Order (No 2) 2022 (NSW)
Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW)
Supreme Court Act 1970 (NSW), s 101

Cases Cited:
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Baird v Glasgow Corporation [1936] AC 32
Brownells Limited v Ironmongers’ Wages Board (1980) 81 CLR 108; [1950] HCA 3
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Jones v Metropolitan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664
Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299
Kruse v Johnson [1898] 2 QB 91
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Salt v Scott Hall [1903] 2 KB 245
Schofield v City of Moorabbin [1967] VR 22
Sharpe v Heywood [2013] NSWCA 192
Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56

Category: Principal judgment
Parties: John Edward Larter (Applicant)
The Hon Brad Hazzard MP, Minister for Health & Medical Research (First Respondent)
Health Administration Corporation (Second Respondent)
The State of New South Wales (Third Respondent)
Representation:
Counsel:
S Prince SC with T Wong (Applicant)
Submitting appearances (First and Second Respondents)
T Prince with D Farinha (Third Respondent)
Solicitors:
Pryor Tzannes & Wallis Solicitors (Applicant)
Crown Solicitor’s Office (NSW) (Respondents)

File Number(s): 2021/347689
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2021] NSWSC 1451;
[2021] NSWSC 1595

Date of Decision:

10 November 2021;
9 December 2021

Before:

Adamson J

File Number(s):

2021/259688

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Larter v Hazzard

Details

AGLC: Larter v Hazzard [2022] NSWCA 238
Case: [2022] NSWCA 238
Decision Date: 22 November 2022

CaseChat Overview and Summary

In *Larter v Hazzard*, the applicant, a healthcare worker employed by the state, challenged public health orders made under section 7 of the *Public Health Act 2010* (NSW). These orders mandated vaccination for state-employed healthcare workers by specific dates. The applicant contended that the Minister lacked the authority to make these orders, questioning their validity in light of public health risks, their duration exceeding statutory limits, and their alleged inconsistency with the International Covenant on Civil and Political Rights. The matter was heard by Brereton and Mitchelmore JJA.

The central legal issues before the court were whether the Minister acted within their powers in issuing the vaccination mandates, particularly concerning the assessment of public health risks. The court was also required to determine if the orders could lawfully extend beyond the 90-day limit prescribed by the *Public Health Act 2010* (NSW), and whether the mandates were incompatible with the rights protected under the International Covenant on Civil and Political Rights.

The Court of Appeal granted the applicant an extension of time to apply for leave to appeal, backdated to the filing of the summons. However, the Court ultimately refused leave to appeal and ordered the applicant to pay the costs of the proceedings.

Orders

Orders of the court

(1) Grant the applicant an extension of time to apply for leave to appeal to the date on which the summons was filed; and

(2) Refuse leave to appeal, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Larter v Hazzard [2022] NSWCA 238

Most Recent Citation

E1 v E2; E Pty Limited v E2 [2023] NSWDC 411

Cases citing this decision · 1 of 1 shown

E1 v E2; E Pty Limited v E2
[2023] NSWDC 411 Para 19

…oFundMe”, is helpfully described by Adamson J in Larter v Hazzard (No 3) [2021] NSWSC 1595 (appeal dismissed with costs: Larter v Hazzard [2022] NSWCA 238; see also Kassam v Hazzard; Henry v Hazzard (No 2) [2021] NSWSC 1599). Crowdfunding was initially regarded as an exciting new way to fund litigation but has disa…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Kassam v Hazzard; Henry v Hazzard
[2021] NSWCA 299 Para 1

…consider” that the measures given effect by the orders were necessary: [27], [31]-[33]. Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299, followed.…
Larter v Hazzard (No 2)
[2021] NSWSC 1451 Para 1

…the Orders containing it expired on 19 June 2022, after the hearing and judgment at first instance: see below at [3]. 2. Larter v Hazzard (No 2) [2021] NSWSC 1451 (“primary judgment”). 3. Larter v Hazzard (No 3) [2021] NSWSC 1595 (“costs judgment”).…
Kassam v Hazzard; Henry v Hazzard
[2021] NSWSC 1320 Para 1

…her the ICCPR articles 12, 18 and 19 were engaged turns on whether the relevant order was a “necessary” one. In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, it was held that it was. That judgment has now been upheld on appeal, albeit without reference to the ICCPR, in a judgment which holds that the Order wa…
Henry v Hazzard (No 2)
[2021] NSWSC 1235 Para 1

…the Minister, acting reasonably, to “consider” that the measures given effect by the orders were necessary: [27], [31]-[33]. Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299, followed.…
Sharpe v Heywood
[2013] NSWCA 192 Para 18

…ve to appeal is that the decision appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. [18] 18. Sharpe v Heywood [2013] NSWCA 192 at [34] (Gleeson JA; Barrett JA agreeing); see also Kassam (CA) at [26] (Bell P).…
Minister for Immigration and Citizenship v Li
[2013] HCA 18 Para 3

…de by the Minister are such as “the Minister considers necessary ”. [32] 32. Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [64] (Hayne, Kiefel and Bell JJ); at [88]-[92] (Gageler J); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR…
McWilliam v Civil Aviation Safety Authority
[2006] FCA 1585

…of an administrative or legislative character (and the two are not necessarily mutually exclusive: see McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [39] and the reasons of Leeming JA at [153]-[155] below). Rather, the question is simply whether the Impugned Orders were authorise…
McWilliam v Civil Aviation Safety Authority
[2004] FCA 1701

…does not turn upon whether or not they were of an administrative or legislative character (and the two are not necessarily mutually exclusive: see McWilliam v Civil Aviation Safety Authority (2004) 142 FCR 74; [2004] FCA 1701 at [39] and the reasons of Leeming JA at [153]-[155] below). Rather, the question is simply whether the Impugned Orders wer…
Mulholland v Australian Electoral Commission
[2004] HCA 41

…ider” that the measures given effect by the Orders were necessary. As Gleeson CJ observed in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, [2004] HCA 41 at [41]: “the word “necessary” has different shades of meaning. It does not always mean “essential” or “unavoidable”, especially in a context wher…
Corporation of the City of Enfield v Development Assessment Commission
[2000] HCA 5 Para 3

…(Hayne, Kiefel and Bell JJ); at [88]-[92] (Gageler J); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [34] (Gleeson CJ, Gummow, Kirby and Hayne JJ).…
Attorney-General (NSW) v Quin
[1990] HCA 21 Para 4

…Article 18(3) which permits limitations which are necessary to protect public health. [14] 9. Citing Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at [36] (Brennan J). 10. Primary judgment at [77], [83]. 11. Primary judgment at [92]. 12. Primary judgment at [95]. 13. Primary judgment at [99]. 14…
Brownells Ltd v Ironmongers' Wages Board
[1950] HCA 3 Para 30

…sborne [1955] VLR 152; Schofield v City of Moorabbin [1967] VR 22. 29. See also Brownells Limited v Ironmongers’ Wages Board (1980) 81 CLR 108; [1950] HCA 3, in which it was held that the provision of high rates of overtime wages for employees working in shops after 5:45 pm had the ulterior objective of imposin…
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee
[1945] HCA 55 Para 30

…politan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54; Williams v Melbourne Corporation (1933) 49 CLR 142; Yates v Vegetable Seeds Committee (1946) 72 CLR 37 (“Yates”); Parry v Osborne [1955] VLR 152; Schofield v City of Moorabbin [1967] VR 22. 29. See also Brownells Limited v Ironmongers’ Wages Board (198…
Williams v Melbourne Corporation
[1933] HCA 56 Para 29

…. Kassam (CA) at [153]. 26. Kassam (CA) at [155]. 27. Kassam (CA) at [147] (citing Williams v Melbourne Corporation (1933) 49 CLR 142 at 155; [1933] HCA 56) and [156].…
Jones v Metropolitan Meat Industry Board
[1925] HCA 54 Para 30

…nsiderable deference will be afforded to a public authority given such powers. [31] 28. Jones v Metropolitan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54; Williams v Melbourne Corporation (1933) 49 CLR 142; Yates v Vegetable Seeds Committee (1946) 72 CLR 37 (“Yates”); Parry v Osborne [1955] VLR 152; Sc…
[1898] 2 QB 91
[1898] 2 QB 91 Para 30

…ve of imposing pressure on employers to close shops at that hour although the closing time was fixed at 6:00 pm by statute. 30. Kruse v Johnson [1898] 2 QB 91; Baird v Glasgow Corporation [1936] AC 32. 31. Kruse v Johnson [1898] 2 QB 91 at [99] (Lord Russell); see Salt v Scott Hall [1903] 2 KB 245.…
[1936] AC 32
[1936] AC 32 Para 30

…e shops at that hour although the closing time was fixed at 6:00 pm by statute. 30. Kruse v Johnson [1898] 2 QB 91; Baird v Glasgow Corporation [1936] AC 32. 31. Kruse v Johnson [1898] 2 QB 91 at [99] (Lord Russell); see Salt v Scott Hall [1903] 2 KB 245.…
[1903] 2 KB 245
[1903] 2 KB 245 Para 30

…nson [1898] 2 QB 91; Baird v Glasgow Corporation [1936] AC 32. 31. Kruse v Johnson [1898] 2 QB 91 at [99] (Lord Russell); see Salt v Scott Hall [1903] 2 KB 245.…

Legislation cited in this decision · 6

Supreme Court Act 1970 (NSW)
101, 101(2)(c), 101(2)(r) 3 mentions (from Para 16)
Public Health Act 2010 (NSW)
7 2 mentions (from Para 2)
Administrative Decisions Review Act 1997 (NSW)
1 mention
Health Services Act 1997 (NSW)
1 mention (from Para 50)
Interpretation Act 1987 (NSW)
32(2) 1 mention
State Emergency and Rescue Management Act 1989 (NSW)
1 mention

Medium Neutral Citation:	Larter v Hazzard [2022] NSWCA 238
Hearing dates:	26 July 2022
Date of orders:	22 November 2022
Decision date:	22 November 2022
Before:	Brereton JA at [1]; Mitchelmore JA at [53].
Decision:	(1) Grant the applicant an extension of time to apply for leave to appeal to the date on which the summons was filed; and (2) Refuse leave to appeal, with costs.
Catchwords:	HEALTH – Public Health – COVID-19 – Public health orders made under Public Health Act 2010 (NSW), s 7, requiring state-employed healthcare workers to be vaccinated by particular dates – Whether it was open to the Minister to make the orders having regard to the risk to public health – Whether order could have effect beyond 90-day limit imposed by statute – Whether orders inconsistent with International Covenant on Civil and Political Rights
Legislation Cited:	Health Practitioner Regulation National Law 2009 (NSW), ss 20A, 150 Health Services Act 1997 (NSW) International Covenant on Civil and Political Rights, Arts 12, 17, 18, 19, 26 Interpretation Act1987 (NSW), s 32(2) Public Health Act 2010 (NSW), s 7 Public Health (COVID-19 Care Services) Order (No 2) 2022 (NSW) Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Baird v Glasgow Corporation [1936] AC 32 Brownells Limited v Ironmongers’ Wages Board (1980) 81 CLR 108; [1950] HCA 3 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Jones v Metropolitan Meat Industries Board (1926) 37 CLR 252; [1925] HCA 54 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320; (2021) 393 ALR 664 Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299 Kruse v Johnson [1898] 2 QB 91 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Salt v Scott Hall [1903] 2 KB 245 Schofield v City of Moorabbin [1967] VR 22 Sharpe v Heywood [2013] NSWCA 192 Williams v Melbourne Corporation (1933) 49 CLR 142; [1933] HCA 56
Category:	Principal judgment
Parties:	John Edward Larter (Applicant) The Hon Brad Hazzard MP, Minister for Health & Medical Research (First Respondent) Health Administration Corporation (Second Respondent) The State of New South Wales (Third Respondent)
Representation:	Counsel: S Prince SC with T Wong (Applicant) Submitting appearances (First and Second Respondents) T Prince with D Farinha (Third Respondent) Solicitors: Pryor Tzannes & Wallis Solicitors (Applicant) Crown Solicitor’s Office (NSW) (Respondents)
File Number(s):	2021/347689
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2021] NSWSC 1451; [2021] NSWSC 1595 Date of Decision: 10 November 2021; 9 December 2021 Before: Adamson J File Number(s): 2021/259688