Loielo v Giles - [2020] VSC 619

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03608

MICHELLE LOIELO	Plaintiff
v
ASSOCIATE PROFESSOR MICHELLE GILES (in her capacity as Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic))	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2020
DATE OF RULING:	24 September 2020 – First Revision 25 September 2020
CASE MAY BE CITED AS:	Loielo v Giles
MEDIUM NEUTRAL CITATION:	[2020] VSC 619

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EVIDENCE – Notice to Produce – Legal Privilege – Legal advice to decision maker relied on in making Stay at Home Directions (Restricted Areas) (No 15) – Charter challenge to Directions – Whether substance of the legal advice disclosed in decision maker’s affidavit – Relevance of decision maker’s reliance on advice – Evidence Act 2008 ss 122, 125.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke QC with Ms V Plain and Dr J Harkess	NOH Legal
For the Defendant	Ms K Walker QC, Solicitor-General for the State of Victoria with Mr J Pizer QC and Mr E Nekvapil	Victorian Government Solicitor’s Office

HIS HONOUR:

During Tuesday’s directions hearing, I heard submissions about the defendant’s claim to legal privilege over documents containing legal advice exhibited to, or referred to, in her affidavit and which the plaintiff seeks to inspect. The defendant, Associate Professor M Giles, made the Stay at Home (Restricted Areas) Directions (No 15) (‘the Directions’) on 13 September 2020. The Directions contain the 9 pm to 5 am curfew, which binds people who reside in the ‘greater Melbourne’ area.

The dispute is about a paragraph in the plaintiff’s notice to produce seeking production of:

18. Exhibit MG-5 - all documents therein, unredacted.

Exhibit MG-5 is an exhibit to Associate Professor Giles’ affidavit, which is described in paragraph 37.3 of her affidavit, which I set out below, although only one of the 11 assessments by the Legal Services Branch of the Stay at Home Directions’ compatibility with the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) is included in it.

The only objection raised by the defendant to the production of Exhibit MG-5 was that is subject to legal privilege.

The plaintiff’s challenge to the Directions is in essence a challenge to the curfew. It seeks judicial review orders and orders relying on the Charter. She contends that the Direction violates her rights: to freedom of movement under s 12; to liberty and security under s 21(1); not to be subject to arbitrary detention under s 21(2); and, not to be deprived of her liberty under s 21(3).

Paragraphs 6 and 7 of the originating motion state:

6. Section 38 of the Charter provides that it is unlawful for a public authority, which includes the defendant, to act in a way that is incompatible with a human right or, in making…

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 Loielo v Giles

Details

AGLC: Loielo v Giles [2020] VSC 619
Case: [2020] VSC 619
Decision Date: 24 September 2020 – First Revision 25 September 2020

CaseChat Overview and Summary

The case of Loielo v Giles involved a challenge to the Stay at Home Directions (Restricted Areas) (No 15) issued by the Minister for Health in Victoria. The applicant, Mr Loielo, sought a review of the directions under the Charter of Human Rights and Responsibilities Act 2006. The central issue was whether the Minister had relied on legal advice in making the directions and whether the substance of that advice was disclosed in the Minister's affidavit. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the evidence of legal advice provided to the Minister was privileged and whether it was necessary to disclose the substance of that advice for the purposes of the Charter challenge. The primary legal issues centred on the application of ss 122 and 125 of the Evidence Act 2008, which pertain to the admissibility of legal advice and the circumstances under which such advice may be disclosed. The court also had to consider the relevance of the Minister's reliance on the legal advice in making the directions.

In its judgment, the court held that the substance of the legal advice did not need to be disclosed as it was protected by legal professional privilege. The court reasoned that the relevance of the Minister's reliance on the advice was not sufficient to override the privilege. The court found that the provisions of the Evidence Act supported the protection of the advice from disclosure. The court emphasised that the focus should be on the process by which the directions were made rather than the content of the legal advice itself. The court concluded that the applicant's challenge could proceed without the need for disclosure of the legal advice.

The court ordered that the applicant's challenge to the directions could proceed without the need for the Minister to disclose the substance of the legal advice. The court further ordered that the case management conference be rescheduled to allow for the continuation of the proceedings. The court directed the parties to file further written submissions on specific issues related to the challenge, ensuring that the proceedings moved forward efficiently while respecting the principles of legal privilege.

Orders

Orders of the court

See [23]-[24]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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