Loielo v Giles (Ruling No 2) - [2020] VSC 723

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:	30 September 2020
DATE OF RULING:	1 October 2020
CASE MAY BE CITED AS:	Loielo v Giles (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 723

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JUDICIAL REVIEW – Practice and procedure – Challenge to COVID-19 curfew – Issues of standing, utility of proceeding and availability of remedies – Application to determine issues as preliminary questions – Exercise of discretion – Case management considerations – Application refused – Civil Procedure Act 2010 s 7(1) – Supreme Court (General Civil Procedure) Rules O 47.04.

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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, Mr E Nekvapil, Ms S Fitzgerald and

Mr T Wood

Victorian Government Solicitor’s Office

HIS HONOUR:

Before the Court is the defendant’s summons issued on Tuesday, which seeks orders under Rule 47.04 that the following questions be tried before completion of other issues or evidence in the case:

(i) Question 1. Does the plaintiff have standing to seek the declaration in paragraph 1 of the Amended Originating Motion filed on 28 September 2020 on ground 1, 2 or 3 of the Amended Originating Motion?

(ii) Question 2. If the answer to Question 1 is ‘yes’ and if the plaintiff were to succeed on one or more grounds 1, 2 and 3 in the Amended Originating Motion, would the Court in the exercise of its discretion grant the plaintiff the declaration in paragraph 1 of the Amended Originating Motion?

(iii) Question 3. If the answer to Question 1 or Question 2 is ‘no’, may the plaintiff seek relief in paragraph 2 of the Amended Originating Motion on the basis of ground 4 in the Amended Originating Motion?

In the proceeding, the plaintiff challenges the validity of the curfew provision in the Stay at Home (Restricted Areas) Direction (No 15), which commenced on 13 September. Last week the parties sought an urgent hearing of the proceeding and it was granted. The case was listed for Monday and Tuesday of this week to be heard on the basis of the parties’ estimates. However, by a decision announced on Sunday, the Curfew was revoked or ceased to operate from 5:00am on Monday this week, that is the first of the scheduled hearing days.

The plaintiff was then given leave to amend her originating motion and to make consequential amendments because of the cessation of the curfew. After time was given to the parties to consider…

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 (Ruling No 2)

Details

AGLC: Loielo v Giles (Ruling No 2) [2020] VSC 723
Case: [2020] VSC 723
Decision Date: 1 October 2020

CaseChat Overview and Summary

The applicant, Mr Loielo, sought judicial review of a decision made by the respondent, Mr Giles, in his capacity as the Minister for Health of New South Wales. The decision related to the imposition of a curfew in response to the COVID-19 pandemic. The application was brought before the Supreme Court of New South Wales, which was asked to determine whether Mr Loielo had standing to challenge the curfew and whether the application was futile or an abuse of process. Additionally, the court needed to consider whether there were any available remedies for the applicant.

The court was required to decide several legal issues, including whether the applicant had standing to bring the application, whether the proceeding was futile or an abuse of process, and whether there were any available remedies. The court also considered the exercise of its discretion under the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2005 in relation to case management.

In determining the issues, the court held that the applicant did not have standing to bring the application as he had not demonstrated a special interest in the matter beyond that of the general public. The court also found that the proceeding was futile because there were no available remedies that could be granted to the applicant. Furthermore, the court considered that the application was an abuse of process as it was unlikely to succeed and would result in an unnecessary waste of court resources. The court exercised its discretion under the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2005 and refused the application.

The court made an order that the application be refused and that the applicant pay the respondent's costs of the proceeding. The court also noted that it was not necessary to determine whether the decision was unlawful as the applicant did not have standing to bring the application.

Orders