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:

1. 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?

1. 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.

1. 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 the changed circumstances that existed this morning, the first of three scheduled steps that had been fixed by the timetable on which the parties agreed was completed. That was the parties making submissions about the judicial review and Charter grounds challenging the Curfew Direction. Written submissions had been filed late last week and over the weekend in anticipation that the Court would proceed to hear the case as it was originally structured.

1. On the timetable as it was at the end of last week, there were two further steps to be completed. They were the cross-examination of Associate Professor Giles, who is the defendant and decision-maker, and final submissions. It was anticipated that the case would be completed by the end of Tuesday.

1. But on Monday, after the revocation of the Curfew was announced, the defendant foreshadowed that it would file a summons, asking the Court to determine preliminary questions before any other issues in the case. They would raise questions as to the plaintiff’s standing to continue to challenge the now revoked Curfew, the utility of such a challenge, particularly as to whether the Court was likely to order any remedy to the plaintiff if her legal arguments succeeded and whether, because of the requirements of s 39 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’), any Charter remedy could be sought.

1. I allowed the parties Tuesday of this week to enable the foreshadowed summons to be filed and submissions prepared. Yesterday, Wednesday, I heard submissions about the summons. The defendant emphasised the need for the Court to determine whether it had jurisdiction to continue with the proceeding.

1. In my opinion, the case management steps taken in this case are significant and are particularly relevant to the discretion that the Court is given under r 47.04. Both parties initially sought an urgent hearing and it was granted. Now only the plaintiff seeks to continue with the hearing, or, at least, says that the proceeding still has urgency.

1. Secondly, the plaintiff and, subject to qualification, the defendant initially requested that the whole proceeding be reserved for consideration of the Court of Appeal. But later, after I indicated that the proceeding would be given a priority hearing, that application was not pursued.

1. I understood the defendant’s submissions as not denying the jurisdiction of this Court, as a common law court, to hear proceedings that are brought before it, but as a reference to the question of the plaintiff’s standing to continue with the proceeding in its current form, being an issue that should be determined as a preliminary point.

1. I accept that the Court must have a case presented in which the plaintiff has standing. However, the Court has jurisdiction to proceed with the hearing of a case and determine the standing issue at an appropriate time. There is no rule of law that the Court must, before proceeding further, determine standing.[1] Indeed, in the recent case of Maguire v Parks Victoria,[2] to which I have been referred, and in which the issue of standing was ultimately decisive, the trial judge heard and decided all the points in the case. Indeed, it is often not possible or is undesirable to determine standing as a preliminary issue.

   [1]See, eg, Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, 532-3 (Gibbs J).

   [2][2020] VSCA 172.

1. The second ground, that the defendant advanced in support of the summons was that of utility, whether it was likely that a declaration would be granted if the plaintiff were successful. Declarations, of course, are discretionary remedies. But it is difficult to determine as a preliminary point how a discretion might be exercised as discretions are to be exercised by reference to all the circumstances of the case.

1. The third issue was that the plaintiff’s claim for Charter remedies depended on her being able to seek a remedy on a non-Charter ground. However, whether the plaintiff can satisfy that requirement depends to a large extent on the approach taken to the standing issue and the issue of the utility of a declaration.

1. The courts have emphasised that a separate trial of issues should be ordered under r 47.04 only with great caution and only in a clear case. They have also emphasised that the attraction of the trial of separate of issues rather than of cases in their totality are often more chimerical than real. So that separate trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question. Those principles were considered by the Court of Appeal in Murphy v Victoria.[3]

   [3](2014) 45 VR 119.

1. Of particular relevance is whether the trial of separate issues would prolong, rather than shorten, the litigation. That is a consideration that requires attempts at forecasting how the case may otherwise proceed.

1. In my opinion, there are considerations both for and against granting the orders that the defendant seeks in her summons. There is some force in the defendant's submission that there is a confined pool of evidence contained in the plaintiff's two affidavits, particularly relating to the standing issue.

1. But the other matter that I have not yet mentioned is that the Court, in conducting a trial, is to exercise its powers to achieve the overarching purposes of the Civil Procedure Act2010. The overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court is given broad case management powers, particularly in ss 47, 48 and 49, to achieve that purpose.

1. On balance, having considered the detailed and helpful submissions I received yesterday, and seeking to achieve the purpose and objectives of the Civil Procedure Act 2010, I consider, as a matter of discretion, that it is best that the litigation proceed to completion. I consider that that approach will be the most time effective means that is likely to achieve the overarching objective of s 7(1) of the Civil Procedure Act 2010. That will mean there will be one judgment and will avoid the possibility of fragmentation of proceedings if, for instance, an appeal were brought from a judgment on particular issues.

1. I therefore do not consider it appropriate to determine the matters raised in the summons as preliminary issues.

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