2.3 Alleged disentitling conduct by the respondent
21 As earlier foreshadowed, AVN also contended that the Secretary's conduct in failing to respond to its correspondence and the demands contained therein did not meet the Commonwealth's model litigant obligations and was "disentitling conduct" warranting a departure from the usual order as to costs (see AS [24]-[28]; AR [8]-[11]). The model litigant obligations in the case of the Commonwealth and its agencies are spelt out in a series of obligations contained in Appendix B to the Legal Services Directions 2017 issued by the Attorney-General pursuant to s 55ZF of the Judiciary Act (the Model Litigant Guidelines). It is trite that an allegation of such seriousness should not be lightly made and should be properly particularised.
22 There are two grounds on which this allegation is apparently made.
(1) First, AVN alleged that the Secretary "ignored the repeated clear warnings contained in the AVN's letters to the effect that AVN would instigate the proceeding if he did not respond adequately, which he did not (see letters dated 18 June 2021, 26 November 2021, 16 December 2021 and 5 January 2022)."
(2) Secondly, in respect of the mandamus case, AVN contended that "once the proceeding commenced … the respondent failed, persistently and without reasonable explanation, to respond to the AVN's requests that he 'cause to be maintained' the Register", being requests which were said to be "substantiated by ample unchallenged evidence of adverse events" (AS [25], emphasis in the original). AVN alleges that the respondent's (alleged) silence in failing to reveal his position (or to explain the alleged failure) in response to those requests caused costs to be incurred in the Mandamus Case which could otherwise have been avoided as it left the applicants and the Court unaware of whether the Secretary would do anything in light of the occurrence of adverse events in AVN's view (see AS [26]-[27]; AR [9]). In turn, AVN alleges that that silence "falls below a reasonable standard of a government department responsible for administering the TG Act and the standard imposed by the model litigant guidelines because there was an unexplained lack of transparency" (AS [28]), referring for example to clauses 1 and 2 of the Model Litigant Guidelines.
23 The contention that the Secretary should be deprived of an order for costs in his favour on either ground is, with respect, without merit.
24 First, no proper particulars of the alleged non-compliance with the Model Litigant Guidelines were given. Among other deficiencies in AVN's submissions on this issue, it is not sufficient merely to refer, "for example", to clauses 1 and 2 of the Model Litigant Guidelines, which respectively impose the obligation on the Commonwealth and Commonwealth agencies to behave as model litigants in the conduct of litigation and describe what is entailed by that obligation (cf AS [28]).
25 Secondly, AVN contended that the Secretary ignored repeated clear warnings in its letters that it would commence proceedings "if he did not respond adequately, which he did not" (AS [24]). In its reply submissions, AVN effectively contended that through its series of letters to the respondent, it sought an explanation by the Secretary of his position, namely "whether he had taken, or was taking, or would take any step to discharge his duty to maintain the register" (AR [9], emphasis in the original). It is said that the Secretary's failure to respond is not "the proper conduct of an Australian statutory agency charged with administering objectives such as health and safety" (AR [11]).
26 That submission does not however reflect what was in fact being asked of the Secretary and the then Minister for Health and Aged Care (the Minister) in the correspondence on which AVN seeks to rely.
27 The course of correspondence commences with a letter from Ms Dorey on behalf of AVN on 27 May 2021 to the Minister about its concerns around the COVID-19 vaccination rollout "demand[ing], based on the precautionary principle, that the current mRNA and viral vector vaccination experimental trial be immediately halted until independent scientific safety and efficacy evaluations can be unequivocally established" (MCB1167) (emphasis added). By letter dated 8 June 2021 on behalf of the Minister, the Director of the Department of Health (the Director) responded in detail to the various allegations made by Ms Dorey by outlining the kinds of steps being taken by the Government to monitor and communicate with the public about COVID-19 vaccine safety and effectiveness, and the non-mandatory nature of the Government's COVID-19 vaccination program (MCB1171).
28 Reference was made to litigation being instituted absent compliance with AVN's demands for the first time in the letter dated 18 June 2021 from Ms Dorey to the Minister, which complained that the Director's response had not addressed the issues in her earlier letter and made various demands:
Our demands are as follows:
1- An immediate cessation of the experimental COVID shots until such time as they have been independently and scientifically tested for the long-term efficacy, safety and ability to prevent transmission …
…
3- These trials should be designed, conducted and overseen by independent scientists who have no ties - financial or otherwise - with any sector of the pharmaceutical industry.
(MCB1174.)
29 That letter further asked for a response within seven days of receipt of the letter, absent which AVN would consider legal action against the Minister, and stated that in the absence of a response addressing AVN's concerns "we would feel that we have no option but to consider legal action against you yourself, Minister Hunt, in the form of a private prosecution and against the Government to seek injunctive relief to immediately stop this current experiment on the Australian population" (MCB1175).
30 With respect to this letter, the following points can be made.
(1) It is not directed to the Secretary.
(2) The proceedings foreshadowed against the Minister are of a different nature from those in fact instituted subsequently against the Secretary.
(3) The demand is not for an explanation of the Minister's position (or that of the Secretary) with respect to matters raised by AVN, but for the administration of the vaccines to cease and a differently designed "trial" implemented.
31 Again, that letter was responded to in a detailed letter dated 1 August 2021 from the Acting Assistant Secretary of the COVID-19 Vaccine Taskforce on behalf of the Minister. That letter advised of the Government's "evidence-based approach to COVID-19" and the steps being taken by the Therapeutic Goods Administration (TGA) to monitor the safety of vaccines following registration (see further AVN (No. 1) at [37]-[38]). The Secretary cannot be criticised for not responding as the letter was not addressed to him.
32 Ms Dorey wrote on behalf of AVN for the first time to the Secretary on 26 November 2021 (MCB1179) repeating her concerns about the COVID-19 vaccines and made the following demands (at MCB1182):
(1) an immediate cancellation of the "experimental COVID shots… until such time as these jabs have been independently and scientifically tested for their long-term efficacy, safety and ability to prevent transmission"; and
(2) the conduct of scientific studies using animals first, before "moving on to small groups of humans who are made aware that they are part of a clinical trial, prior to larger Phase III studies which use an inert placebo", with the trials being designed, conducted and overseen by independent scientists who are not associated with the pharmaceutical industry.
33 Ms Dorey advised the Secretary that "[i]f you do not respond or your response once again does not address our concerns, we would feel that we have no option but to consider legal action against the Government" (MCB1183). Again, AVN's requests are not for an explanation of the Government's/Secretary's position, but are a series of demands centring on an immediate cessation of the administration of the COVID-19 vaccines.
34 Similarly, in Ms Dorey's letter on behalf of AVN dated 16 December 2021, Ms Dorey stated that (MCB1189):
The AVN requires that you respond to this correspondence confirming that you will:
a) expressly consider suspending or cancelling the Registrations;
b) that you will suspend the provisional approval of the Pfizer Registration insofar as it relates to persons under the age of eleven (11) pending further investigation; and
c) that you will provide, publicly into our office, reasons for your decisions relating to the above.
Absent a response to this correspondence by no later than 3:00pm on Friday, 24 December 2021, the AVN will have no choice other than to seek the Court's intervention.
35 Finally, in the letter dated 5 January 2022 from Mr Fam, solicitor for the AVN at that time, to the Secretary (Supplementary Court Book (SuppCB) at p. 28, tab 2), Mr Fam sought confirmation within 14 days of the date of that letter that the Children Decision would be revoked and advised that, in the absence of such confirmation or notice that the Secretary had commenced re-considering the Children Decision, AVN would seek judicial review remedies in the nature of mandamus, certiorari, and urgent injunctive relief from the Federal Court (SuppCB at p.33).
36 None of the pre-litigation correspondence on behalf of AVN to the Minister and the Secretary therefore can simply be characterised as seeking an explanation of the Secretary's or the Government's position in response to AVN's concerns. In each case, that correspondence set out a series of demands requiring immediate action by the Minister and subsequently by the Secretary based on the erroneous assumption that AVN had the right to seek relief from the Court if those demands were not complied with.
37 Furthermore, the correspondence in response from or on behalf of the Minister to AVN set out the Government's position that in its view, the safety and efficacy of the vaccines had been properly and lawfully assessed under the TG Act and that the TGA continues to monitor the safety of the vaccines. The fact that AVN did not regard the responses received from the Minister as "adequate" to address its concerns based on its own research and that the Secretary did not respond to AVN's further demands does not mean that the Secretary behaved unreasonably contrary to the Model Litigant Guidelines; nor that he should otherwise be deprived of his costs (cf AS [24]).
38 Thirdly, the Secretary was required to comply with the TG Act. He was not under a duty to act on the representations made, and research presented, by a non-expert and private body such as AVN in making decisions concerning the registration of the Three Vaccines. In this regard, as I held in AVN (No. 1) at [89]:
… there is no evidence that AVN is a body representing the views of persons recognised as experts in the field of immunology and vaccines. To the contrary, membership is open to any natural person who supports AVN's objectives and whose application has been approved by the committee.
39 Conversely, AVN has no right under the scheme established by the TG Act to demand that the Secretary consider suspending or cancelling registration of the Three Vaccines.
40 Fourthly, the nature of AVN's submissions criticising the Secretary's alleged silence in respect of the Mandamus Case after the proceedings were instituted is such that it assumes that the Secretary was under a legal obligation to respond to AVN's requests for him to cause the Australian Register of Therapeutic Goods to be maintained in the manner contended for by AVN. However, the subject of that request was among the legal issues contested by the Secretary in defending the proceedings.
41 Furthermore in the Secretary's Concise Statement filed in the Mandamus Case, which explained why the Secretary contended that the application should be dismissed, the Secretary not only put in issue AVN's standing to seek relief, but also contested the underlying claims raised by AVN. Thus the Secretary's Concise Statement on the Mandamus Case gave detailed reasons as to why he contended that the claims for mandamus and declaratory relief were misconceived even if the proceedings were competent, including that the discretionary powers in ss 29D and 30 of the TG Act were not coupled with duties to consider their exercise.
42 The Secretary was entitled to put these matters in dispute. In so doing, there is no evidence to suggest that his conduct departed from that required by the Model Litigant Guidelines. Specifically, note 4 to paragraph 2 of the Model Litigant Guidelines states that:
The obligation does not prevent the Commonwealth and Commonwealth agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and Commonwealth agencies and testing or defending claims against them.