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Loielo v Giles (No 2)

Loielo v Giles (No 2)

Case [2020] VSC 864 22 December 2020

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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:	On the papers
DATE OF JUDGMENT:	22 December 2020
CASE MAY BE CITED AS:	Loielo v Giles (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 864

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COSTS – Judicial review – COVID-19 Pandemic – Curfew Direction – Challenge unsuccessful – Whether costs should follow the event – Success of parties on issues – Time spent on issues – Significance of issues – Both parties bear her own costs - Supreme Court (General Civil Procedure) Rules 2015 r 63.20.

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

HIS HONOUR:

This case concerned the Curfew Direction[1] in force, between the hours of 8.00pm and later 9.00pm and 5.00am in greater Melbourne, from 5 August and 27 September 2020, which was the eve of the first day of the trial. The plaintiff challenged its legality in this judicial review proceeding. She commenced the proceeding on 14 September 2020 and the trial was completed on 2 October 2020. I gave judgment dismissing the plaintiff’s proceeding on 2 November 2020.[2]
[1]I will use the term ‘Curfew Direction’ although the Curfew restriction challenged was contained in the Stay at Home Directions (Restricted Areas) (No 15).
[2]Loielo v Giles [2020] VSC 722 (‘Principal Judgment’).

The defendant seeks her costs of the proceeding on the usual principle that costs follow the event. The plaintiff says there should be no order as to costs because the case raised important human rights issues and raised significant issues of public interest affecting every person in Victoria, not merely the parties to the litigation. Alternatively, the plaintiff sought orders for costs up to, and including, the first day of trial when the Curfew was revoked and seeks costs on an indemnity basis of two interlocutory applications concerning the production of a Department’s legal advice and of the defendant’s summons for the determination of questions as preliminary issues.

The defendant, Associate Professor Giles, was acting in an official capacity as an authorised officer under the Public Health and Wellbeing Act 2008, filling in for another officer going on leave. She was represented by five counsel, including the Solicitor-General instructed by the Victorian Government Solicitor’s Office. The plaintiff was represented by senior counsel, two junior counsel and solicitor.

In the exercise of the discretion as to costs, I have decided that the usual principle that costs follow the event would…

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 (No 2)

Details

AGLC: Loielo v Giles (No 2) [2020] VSC 864
Case: [2020] VSC 864
Decision Date: 22 December 2020

CaseChat Overview and Summary

The respondents, Loielo, challenged the validity of a curfew direction issued by the Chief Health Officer under the Public Health Act. The application was dismissed by the Court. The respondents sought an order that the applicant bear their costs. The applicant argued that they should not be ordered to pay the respondents' costs because they were unsuccessful on a significant issue. The respondents submitted that the principle of costs following the event should apply, and that the applicant was unsuccessful on all issues. The court found that the principle of costs following the event should apply in judicial review cases. However, the court found that the applicant was successful on the issue of standing, and that the remaining issues were not significant. The court found that the parties should bear their own costs.

The court found that the principle of costs following the event applied in judicial review cases. However, the court found that the issue of standing was significant, and that the applicant was successful on this issue. The court found that the remaining issues were not significant, and that the parties were successful on those issues. The court found that the parties should bear their own costs. The court found that the issue of standing was significant, and that the applicant was successful on this issue. The court found that the remaining issues were not significant, and that the parties were successful on those issues. The court found that the parties should bear their own costs.

Orders