Varnhagen v State of South Australia (No 2)

This case concerned an appeal by the appellants, Varnhagen and others, against a judgment of the primary judge in the Supreme Court of South Australia. The dispute arose from directions made under the *Emergency Management Act* (SA) in the context of the COVID-19 pandemic. The appellants sought to challenge the validity of these directions, which had been continued in force by an amendment act.

The legal issues before the court included the interpretation of the phrase "apparently in force" as used in the amendment act. This phrase determined which directions made under the *Emergency Management Act* would continue under the new legislative scheme. The court was required to consider whether this wording captured directions that might have a latent invalidity, and how such directions should be treated upon the commencement of the amendment act.

The court reasoned that the word "apparently" in the phrase "apparently in force" indicated that the appearance of a direction being in force was sufficient for it to be transitioned under the new scheme, regardless of whether it was ultimately valid. This interpretation was supported by extrinsic materials, specifically statements made during parliamentary consideration of the amendment bill, which highlighted the intention to preserve the substance of existing directions and prevent them from being amended or re-enacted if they had technical legal deficiencies. The court concluded that there was no defect in the validity of the directions in question, and therefore the premise for considering the appellants' alternative contention did not arise.

The court dismissed Ground 1 of the appeal. Following this determination, the appellants filed a further document seeking to add a second ground of appeal concerning a separate costs judgment. The court indicated that it would hear from the parties regarding the progression of this proposed Ground 2.