Stewart v State of Western Australia
[2021] FCA 308
•30 March 2021
FEDERAL COURT OF AUSTRALIA
Stewart v State of Western Australia [2021] FCA 308
File number: WAD 64 of 2021 Judgment of: COLVIN J Date of judgment: 30 March 2021 Catchwords: PRACTICE AND PROCEDURE - application for urgent interlocutory injunction requiring primary school to allow unimmunised child to attend primary school until final hearing - where requirement under Public Health Act 2016 (WA) to provide current immunisation certificate of child - where principal of primary school cancelled enrolment of child on basis that enrolment obtained by giving false and misleading information - where accepted that no steps taken to catch-up immunisation schedule - whether applicants demonstrated sufficient likelihood of success to justify preservation of status quo until final hearing - whether balance of convenience favours grant of injunction - application dismissed Legislation: Disability Discrimination Act 1992 (Cth)
Public Health Act 2016 (WA) ss 141B, 141D
School Education Act 1999 (WA) ss 16, 17, 20
Public Health Regulations 2017 (WA) reg 10AD
Cases cited: Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57; (2018) 264 CLR 289
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 32 Date of hearing: 29 March 2021 Counsel for the Applicants: Mr PH d'Assumpcao Solicitor for the Applicants: G&B Lawyers Counsel for the Respondents: Mr JF Bennett Solicitor for the Respondents: State Solicitor's Office ORDERS
WAD 64 of 2021 BETWEEN: BAILEY LYNN STEWART
First Applicant
NATHAN MACBEAN STEWART
Second Applicant
IVY MARIE STEWART BY HER LITIGATION REPRESENTATIVE, BAILEY LYNN STEWART
Third Applicant
AND: STATE OF WESTERN AUSTRALIA
First Respondent
DONNA SNOW
Second Respondent
WEMBLEY PRIMARY SCHOOL (A STATE GOVERNMENT ENTITY: ABN 99 473 311 960)
Third Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
30 MARCH 2021
THE COURT ORDERS THAT:
1.The application for interlocutory relief is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In Western Australia, it is an offence for a person in charge of a school to permit a child to enrol in the school before the child's compulsory education period without an up‑to‑date immunisation certificate, unless the child is following a 'catch‑up schedule' provided by the regulations or is exempt: s 141D of the Public Health Act 2016 (WA). A catch‑up schedule is a schedule that is planned by a recognised immunisation provider in accordance with the Australian Immunisation Handbook: reg 10AD of the Public Health Regulations 2017 (WA).
Ms Bailey Stewart and her husband Nathan enrolled their 3‑year‑old daughter at a primary school in the Perth Metropolitan Area in September 2020. At that time, their daughter had not received any of the immunisations that are the subject of the record maintained as part of the Australian Immunisation Register. However, a catch‑up schedule was 'active' until 2 March 2021.
There is no dispute that Ms Stewart and her husband have not arranged for any immunisation for their daughter according to the catch‑up schedule. In the course of submissions, it was accepted that it would be an offence for a person in charge of a school in Western Australia to now enrol their daughter at a school. Nevertheless, Ms Stewart as the litigation representative for her daughter as well as Ms Stewart and her husband on their own behalf (together, the applicants) claim that the Court should make orders requiring the school to allow their unimmunised child to attend kindergarten at the school pending the determination of their challenges to the validity of steps taken to cancel their daughter's enrolment.
Under s 16 of the School Education Act 1999 (WA) a person who wishes to make an application for enrolment at a school is to provide, amongst other things, the immunisation status of the enrollee in accordance with s 141B of the Public Health Act. Section 114B(2) requires a responsible person for the enrollee to give to the person in charge of the school the current immunisation certificate for the child. Section 114B(3) authorises the person in charge to require the responsible person to produce the current immunisation certificate.
If there is a change to the immunisation status of the child then notice of the change is to be given to the principal of the school at which the enrollee is enrolled: s 17 of the School Education Act. A change in immunisation status would occur where a child ceased to be the subject of a catch‑up schedule.
The principal of a school may cancel the enrolment of an enrollee at the school if the principal is satisfied that the enrolment was obtained by the giving of false or misleading information or that s 17 has not been complied with: s 20. In the present case, the principal of the school has purported to exercise that power on the basis that false or misleading information was given to the school at the time of enrolment.
In the above context, the claims made by the applicants are to the effect that:
(1)the relevant provisions of the School Education Act are constitutionally invalid by reason of their alleged inconsistency with the Disability Discrimination Act 1992 (Cth); and
(2)the decision to cancel the enrolment was invalid.
The decision to cancel the enrolment is said to be invalid for two reasons. First, it is said that there was no evidence, alternatively no probative evidence, capable of sustaining a satisfaction by the principal that the enrolment was obtained by giving false or misleading information. Second, it is said that the decision was based upon a misunderstanding of the law to the effect that information obtained after the enrolment could be brought to account in deciding whether the enrolment was obtained by giving false or misleading information.
When the matter came before me on an application for urgent relief, I indicated that the matter could be finally heard on dates that could be fixed in the week commencing 10 May 2021. It was noted that for a number of weeks of the period until then the school would be closed for the Easter break and a school holiday period. Nevertheless, the applicants pressed for interlocutory relief in terms that would restrain the principal of the school and the government entity by which the school was constituted from giving effect to the decision to cancel the enrolment.
I declined to grant the interlocutory relief sought. I indicated at the time that I would provide my reasons. These are my reasons.
Relevant principles
On an application for an interlocutory injunction the Court addresses two main inquiries: (a) whether, if the evidence remains as it is, the applicant has demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending a final hearing; and (b) whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ), [19] (Gleeson CJ and Crennan J).
The assessment of harm to the applicant if there is no injunction and prejudice or harm to the respondent if there is an injunction is at the heart of the basket of considerations which must be addressed and weighed as part of the Court's consideration of the balance of convenience and justice. The assessment of harm includes a consideration as to whether the harm will be irreparable: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [61]‑[62] (Dowsett, Foster and Yates JJ).
The apparent strength (or weakness) of the claim will often be an important consideration to be weighed in the balance. Generally speaking, there is a greater risk of injustice if an injunction is granted on the basis of a claim which is assessed as being weak based upon the matters advanced at the time of the application because it is likely that the claim will fail and therefore, in retrospect, it might be said by the respondent or affected third parties that the imposition of the restraint was not fair. However, all depends on the particular circumstances.
For similar reasons, the Court looks closely to the strength of the case where the relief would, in a practical sense, operate in substance as a final determination of the matter as between the parties: O'Neill at [72].
The interests of the public and third persons are relevant and have more or less weight depending on the circumstances, but will rarely be decisive: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [65]‑[66] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
Relatedly, where the application concerns public law rights, broader interests arise. They include the wider interest in conformance by administrative decision makers to the lawful limits upon their decision making power. However where, as here, the challenge is constitutional (at least in part) it has been said that 'compelling grounds' must be shown where the interlocutory injunction, if granted, would restrain the administration or enforcement of an Act pending final resolution of the challenge to its constitutional validity. This reflects what has been described as a duty to defer to the enactment of the legislature until the legislation has been adjudged to be ultra vires: see the authorities referred to by Gordon J in Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57; (2018) 264 CLR 289 at [5]. This final aspect can be put to one side in the present case because the applicants relied only upon their challenges to the decision to cancel the enrolment as the basis for the interlocutory injunction.
Likelihood of success
In considering whether to grant an interlocutory injunction , it is necessary to identify the legal or equitable rights that are yet to be determined: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [91] (Gummow and Hayne JJ). It is those rights which provide the foundation for the grant of relief if it is shown to be just or convenient to preserve matters until a final determination can occur.
The statutory power to cancel the enrolment of a child at a school is enlivened if the principal is satisfied that the enrolment was obtained by the giving of false or misleading information. It is the right to insist upon conformance with the limits of a valid exercise of that power that provides the basis for the application for an injunction.
The case for the applicants is that at the time of the enrolment in September 2020, Ms Stewart submitted an Immunisation History Statement for her daughter. On the evidence that statement must have shown that a catch‑up schedule was active until 2 March 2021. On Ms Stewart's own evidence she was reminded about the catch-up in November 2020 and again in February 2021. She and her husband responded to the second reminder through her lawyers claiming that the principal of the school had no power to follow through with the proposition that the daughter 'will not be allowed to attend Kindergarten' until further notification of immunisation status was received.
The position maintained by the lawyer acting for the applicants was that (a) the assertion that the daughter will no longer be allowed entry to the school was discrimination in breach of the Disability Discrimination Act; and (b) the school principal could not cancel the enrolment unless a direction was given by the Chief Health Officer to that effect.
As has been noted, it is accepted by the applicants that no steps were taken to catch-up the immunisation schedule and it would be an offence under the Public Health Act if the daughter was to be accepted for enrolment at a school at this time. On the evidence, the daughter is not immunised. There is no indication that steps are planned to be taken to arrange immunisation. A considerable period in which immunisation could have been arranged has elapsed.
All three grounds advanced by the applicants depend upon the proposition that conclusions about the intentions of Ms Stewart and her husband at the time of enrolment of their daughter concerning the taking of steps to immunise their daughter cannot be inferred from their subsequent conduct. On the evidence presently before the Court, that conduct manifests a clear and consistently held intention not to arrange immunisation and not to conform to the catch-up schedule. It appears to be logical to draw an inference as to the intention of Ms Stewart and her husband at the time of enrolment from the evidence as to their subsequent conduct after the daughter's enrolment. It is a question for the satisfaction of the principal (and not this Court) as to whether there was false and misleading conduct. Therefore, there must be a real question as to the merit of the foundation for the claim based upon the challenge to the decision.
Otherwise, as has been noted the constitutional aspect of the application was not relied upon to support the claim for injunctive relief. Further, there was no claim relying on the provisions of the Disability Discrimination Act. Rather, the claim was one of invalidity based upon inconsistency.
Balance of convenience
For the following reasons I formed the view that the balance is against the grant of relief.
First, it was said by the applicants that the daughter is 'missing out on important learning schooling and an education' as well as 'critical social interactions with her friends and is traumatised and upset at not being allowed to go to school'.
Attendance at kindergarten is not part of the compulsory education of a child of the age of the daughter. The evidence of Ms Stewart about the consequences for the education of her daughter is no more than assertion. There is no evidence to the effect that giving effect to the decision for the period until a final decision can be made would be likely to have any ongoing or lasting consequence for the education of a child such as the daughter.
Second, it was said by the applicants that the daughter is constantly crying and not wanting to be separated from her mother and she was not like that before not being allowed to go to school. It was also submitted that the parents were affected by what has occurred. As to these matters, I am not satisfied that they are a consequence of the decision under challenge. The affidavit of Ms Stewart deposes to a number of interactions with the school. It appears that tensions between the adults involved have been heightened by the course of events. It also appears that this may have led to events that were upsetting to the daughter. These matters are irrelevant to the right upon which the applicants rely to found their relief. It is the consequences from the decision itself that must be weighed, not the other interactions that may have occurred.
Third, school aged children in Western Australia are about to enter a period of holidays. An injunction, if granted, would operate for a few days and then a few weeks of holidays would follow where the daughter could not attend school in any event. Not long after that the whole matter can be determined on a final basis. Therefore, any absence from school, though no doubt upsetting to a degree, will not be substantial.
Fourth, the evident purpose of the statutory provisions in the Public Health Act (and the related provisions in the School Education Act) is to require children attending school to be immunised or to be exempt from immunisation. The legislature has formed the view that good government in the interests of the public as a whole is advanced by such laws. The injunction as proposed would expose children at the school to the very outcome that the law is seeking to avoid. It is not to the point that the daughter is not unwell at present (a matter relied upon in submissions but not the subject of evidence) and therefore the risk of infection by reason that she is not immunised is not presently manifest. It is of the very nature of immunisation that it is undertaken in an effort to provide protection for the community as a whole, particularly those who are more vulnerable, from the risk of infection. This is an instance where the evident purpose of the law under which the decision is made is to provide protection to the public in general. In that sense, consequences for the wider public, particularly the students, their parents and family members and staff at the school, lie at the heart of the matter. This is not a case where the law concerns private rights as between the applicants and the school. The law seeks to protect the wider community and those interests must weigh significantly in the balance.
Fifth, under s 141D it is an offence for a person in charge of a school to permit a child in the current circumstances of the applicant to enrol unless the child is following a catch‑up schedule. If the position of the principal is correct and the applicants secured the enrolment of their daughter by Ms Stewart giving false and misleading information as to their intentions in relation to the catch‑up schedule then their conduct has had the consequence of avoiding the inevitable refusal of the enrolment of their daughter (if, as is to be expected, there was compliance with the law). Therefore, if the position of the principal is correct, there would be unfairness and injustice in allowing continued enrolment in those circumstances.
Sixth, for reasons already given there is a real question as to the merit of the foundation for the applicants' claim.
Conclusion
For the above reasons, I determined that the application for an interlocutory injunction should be refused.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 30 March 2021
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