Wilson v State of Victoria

Case [2023] FCAFC 204


FEDERAL COURT OF AUSTRALIA

Wilson v State of Victoria [2023] FCAFC 204

Appeal from: Wilson v State of Victoria [2023] FCA 111
File number: VID 176 of 2023
Judgment of: LOGAN, PERRY AND O'SULLIVAN JJ
Date of judgment: 22 December 2023
Catchwords: PRACTICE AND PROCEDURE — application for leave to appeal from summary judgment – application for extension of time within which to seek leave to appeal – where before the primary judge the applicants alleged invalidity of measures relating to the rollout of COVID-19 vaccines and restrictions on unvaccinated individuals in the State of Victoria – where grounds of appeal, save for the issue of costs, have no reasonable prospect of success – extension of time granted – leave to appeal refused save for the issue of costs– costs remitted to primary judge     
Legislation:

Constitution ss 51, 75

Acts Interpretation Act 1901 (Cth) s 7

Australian Immunisation Register Act 2015 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 24, 31A

Migration Act 1958 (Cth) s 477A

National Health Act 1953 (Cth) s 132G, Pt VIIIB

National Health Amendment (COVID-19) Act 2021 (Cth)

Federal Court Rules 2011 (Cth) r 35.13(a), r 36.03

Occupational Health and Safety Act 2004 (Vic)

Public Health and Wellbeing Act 2008 (Vic) ss 165AI, 165AP, 200, 204, Pt 10

Cases cited:

Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Hastwell v Kott Gunning [2021] FCAFC 70

Kerrison v Melbourne City Council (2014) 228 FCR 87

Lee v NSW Crime Commission (2013) 251 CLR 196

Spencer v The Commonwealth (2010) 241 CLR 118

Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819

Unions NSW v New South Wales (2023) 97 ALJR 150

Wilson v State of Victoria [2023] FCA 111

Wong v The Commonwealth (2009) 236 CLR 573

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 66
Date of last submissions: 7 December 2023 (on behalf of the First and Second Respondents)
Date of last submissions: 14 December 2023 (on behalf of the Appellants)
Date of hearing: 30 November 2023
Counsel for the Appellants: The appellants appeared in person
Counsel for the First Respondent: Mr L Brown SC with Ms T Meyrick
Solicitor for the First Respondent: Victoria Government Solicitor
Counsel for the Second Respondent: Mr C Tran with Ms M Jackson
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

VID 176 of 2023
BETWEEN:

ERIC WILSON

First Appellant

TRACEY LEE WILSON

Second Appellant

AND:

STATE OF VICTORIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

LOGAN, PERRY AND O'SULLIVAN JJ

DATE OF ORDER:

22 DECEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be allowed and the orders of 7 March 2023 in proceeding VID 614 of 2023 be set aside.

2.The…

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AGLC
Wilson v State of Victoria [2023] FCAFC 204
Case
[2023] FCAFC 204
Decision Date

CaseChat Overview and Summary

In the case of Wilson v State of Victoria, the applicants sought leave to appeal from a summary judgment entered against them by the primary judge. The applicants had previously challenged measures related to the rollout of COVID-19 vaccines and restrictions on unvaccinated individuals in the State of Victoria. The applicants applied for an extension of time within which to seek leave to appeal and for leave to appeal itself. The primary judge had dismissed the applicants' claims, and the applicants sought to challenge the validity of certain measures and restrictions implemented by the State.

The central legal issues that the court had to address were whether the applicants had grounds for an appeal that had a reasonable prospect of success and whether the applicants should be granted an extension of time to file their appeal. Additionally, the court had to consider whether the applicants were entitled to a remission of costs to the primary judge for the determination of the costs of the proceedings.

The court found that the applicants' grounds of appeal, except for the issue of costs, had no reasonable prospect of success. However, the court was satisfied that the applicants had established a sufficient case for an extension of time to seek leave to appeal. The court granted the application for an extension of time but refused leave to appeal except in relation to the issue of costs. The court also remitted the matter to the primary judge for the determination of costs in the original jurisdiction. The court emphasised the importance of ensuring that the applicants' right to a fair hearing was not prejudiced by the delay in seeking leave to appeal.

In summary, the court allowed the appeal in part, setting aside the orders of 7 March 2023 and remitting the matter to the original jurisdiction for the determination of costs. The court also ordered that the costs of the appeal preparations abide the order of the Court as to costs in the original jurisdiction on remitter. The court's decision highlights the importance of balancing the applicants' right to a fair hearing with the need to manage court resources efficiently.

Orders

Orders of the court

1. The appeal be allowed and the orders of 7 March 2023 in proceeding VID 614 of 2023 be set aside.

2. The proceeding be remitted to the original jurisdiction for the determination of costs in the original jurisdiction in VID 614 of 2023, either as provided for by the order of 23 February 2023 in that proceeding or as otherwise ordered by the Court.

3. The costs of and incidental to the preparation by counsel of submissions pursuant to the Court’s order of 30 November 2023, insofar as such submissions were prepared by counsel, abide the order of the Court as to costs in the original jurisdiction on remitter.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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