Davis v Minister for Health

Application to dismiss the Proceedings

1. The Minister is seeking the dismissal of the application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), on the basis that the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. In these proceedings, the Minister agrees that the decision whether to dismiss is discretionary, but says, that if I find that the public health orders no longer have operative effect, then the only proper exercise of discretion is to dismiss the application.
2. Both parties relied on a decision of the Appeal Panel of the former Administrative Decisions Tribunal of New South Wales in AVS Group Australia Pty Ltd v Commissioner of Police [2012] NSWADTAP 24 (AVS). In that case, the Commissioner of Police had applied for the appeal to be summarily dismissed on the ground that the Tribunal was not competent because the applicant's security licence had already expired.
3. The Tribunal in AVS considered an earlier decision of the Tribunal, Ybasco v Director General, Department of Transport [1999] NSWADT 28 (Ybasco). In those proceedings the review application was competent at the time it was filed. A taxi driver's authority had been suspended and the suspension was lifted after the administrator was advised that criminal charges against the driver had been withdrawn. The administrator submitted that the Tribunal no longer had jurisdiction for the review application to proceed. The review applicant opposed the application.
4. The Tribunal in Ybasco determined that the original decision retained legal effect for a certain period and remained a "reviewable decision" within the meaning of the legislation, even though the suspension had been lifted.
5. The Tribunal in Ybasco considered a decision that had been made by the Commonwealth Administrative Appeals Tribunal in the matter of Coyne v Comcare Australia (1995) 37 ALD 553. In Coyne the Tribunal found that the department's reversal of a previous decision had deprived the Tribunal of jurisdiction to review the revoked decision. The Tribunal in Ybasco distinguished the decision in Coyne, noting that in Coyne, the department had reversed a previous decision affected by error and declared that a new decision replaced the previous decision. In Ybasco the Tribunal was dealing with a decision which continued to be regarded by the respondent (and the Tribunal) as having had operative effect for a certain period of time.
6. It had been submitted by the respondent in Ybasco that, because of the lifting of the suspension, the remedies available to the Tribunal were no longer available to be used. The Tribunal rejected that submission and stated, at [21]-[22] of the reasons for decision, (in relation to the ADR Act): 21 It appears to me to be feasible that several of the powers vested in the Tribunal by s.63 could still be utilised - for example, the original decision might be affirmed, varied or set aside: see generally s.63. This analysis is supported, I consider, by s.66 of the Act, which provides (sub-s.(2)) that where a decision varies an administrator's decision or is made in substitution for it, it is taken to "have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise." 22 On the other hand the Tribunal should exercise care in continuing to deal with a decision in circumstances where the decision has subsequently been revoked or rescinded. It may be that having regard to the circumstances the Tribunal is satisfied that there is no longer a live controversy justifying the exercise of its jurisdiction. It might move to dismiss the application if it considers it to be "frivolous or vexatious": s.73(5)(h). To similar effect see the observations of Deputy President McNamara in Re Crooks and the Department of Natural Resources (1997) 12 VAR 460 (Administrative Appeals Tribunal, Victoria); and of Senior Member Barbour in Coyne v Comcare Australia (1995) 37 ALD 553 (Administrative Appeals Tribunal, Commonwealth).
7. In Ybasco the Tribunal ultimately found that it did have jurisdiction to review the decision, despite the suspension having been lifted. The Tribunal also found that the Tribunal was not deprived of jurisdiction once it is seized of a matter and that, if an application was properly before the Tribunal, it must either determine it or dismiss it.
8. The Tribunal in AVS applied the reasoning in Ybasco and, at [22] of the reasons for decision, set out various principles that emerge from the authorities regarding the dismissal of a matter in circumstances where the reviewable decision is no longer operative: (i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application. (ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances. In the case of this Tribunal, see the ADT Act, s 63(1) and (2), … (iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision. … (iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application. (v) Care should be taken once proceedings have been properly commenced not to address these questions by reference to standing requirements expressed as preconditions to commencement.
9. The Tribunal went on to say that there was no requirement for the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate and at [25] - [26] relevantly stated that. … the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. 26. Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel.
10. In AVS, the Tribunal, exercising its discretion, refused the respondent's application to dismiss the application because one of the appellants was continuing to seek to remain a licensee in the security industry.
11. The decision whether to dismiss these proceedings is a discretionary one. All four of the public health orders which the Ms Davis wishes to challenge have now been repealed and replaced except for PHO4 which has expired and is no longer operative. Each of the public health orders had operative effect for a finite period and, unlike the factual situation in Coyne, the public health orders were not reversed on the basis that they were made in error.
12. However, I am not of the view that, simply because the orders are no longer operative, the only proper exercise of the discretion would be for the Tribunal to dismiss the matter. Consistent with the reasoning in Ybasco and AVS, there may be a continuing interest in the question of whether the directions made in the public health order were 'correct and preferable' or whether the public health orders may have collateral implications for Ms Davis.
13. The Minister says that, now that there is no longer any public health order relating to COVID-19 vaccination for health workers in effect, any order the Tribunal might make in respect of the review of the public health orders, including any order setting aside or varying them with retrospective effect, would have no or negligible practical effect on Ms Davis. The Minister submits that the proceedings, if they were to proceed on the grounds as proposed, would be long and complex and would involve significant expert evidence, taking up significant resources of the parties and the Tribunal.
14. Ms Davis says that there remains utility in allowing the amending of the application and continuation of the proceedings, despite the public health orders no longer being operative. In the written submissions dated 7 July 2022, Ms Davis' legal representative submitted that the application should not be dismissed, and the application should proceed for the following reasons: … (a) correcting the record and preventing harmful decisions resulting in unnecessary death and illness in future; (b) alleviating pressures on the health system that have contributed to diminished standards of care, ambulance and emergency response times, ICU and resource availability, nursing strikes and staff shortages; (c) flow-on health effects to other sectors affected by similar mandates, including education and police and the general public; (d) vindication and natural justice to Ms Davis and other health workers; (e) opening civil claims including for Ms Davis and other health workers; and (f) alleviating massive economic and societal costs more generally. 12. Moreover, notwithstanding the lapsing of the PHOs, the Respondent continues to encourage the public to receive doses, including 3rd and 4th dose "boosters", claiming effectiveness and safety. Given the continuing emphasis on Covid-19 vaccination, and the distinct possibility that further mandatory vaccination PHOs may emerge, it beggars belief that there is any question over the practical utility of a review which would consider the safety and effectiveness of these experimental intravenous drugs. 13. The ADR Act Second Reading Speech emphasises various relevant matters, including: (a) Simple, cheap and quick access to questioning administrative action. (b) The need for open and accountable government. (c) Good government requires reasons to be given for decisions, and available and accessible remedies to correct wrong decisions. (d) An essential element of good administration is the need to ensure that reasons are given for decisions, which assure people that decisions are made rationally and arm them with information necessary to seek review. (e) The need for independence of the Tribunal from government. (f) The commitment and capacity for Tribunals to exercise natural justice. 14. The Respondent has not provided a statement of reasons for making or remaking the PHOs, and continues to resist disclosure under s 58 of the ADR Act. The lack of transparency further supports the desirability of review. 15. The lapsing of the PHO Orders also does not negate utility. As previously submitted, the effect of lapsing or repeal of a PHO is a far cry from setting aside these orders on the grounds that they were incorrectly made after considering all relevant circumstances on review. 16. Furthermore, administrative decisions having significant and widespread impact should not go unchecked. In the Applicant's respectful submission, it is hard to conceive of a more pungent circumstance prompting a strong and independent Tribunal to exercise its statutory review function.

Termination of Ms Davis' employment.

1. In written submissions dated 30 May 2022, Ms Davis submits that the public health orders and consequent directions have impacted her contract of employment, and that the public health orders have resulted in the termination of her employment. Ms Davis submits that the determination of the review application would have a practical effect regarding the termination of her employment.
2. I find that the determination of this review application would have no practical effect concerning the termination of Ms Davis' employment. That is because, separate to the public health orders requiring health workers to be vaccinated, on 12 November 2021 the Secretary of NSW Health issued Determination No 33 of 2021 (H21/199461) under s 116A of the Health Services Act 1997 (NSW). The Determination has been provided as part of an exhibit attached to the affidavit of Richard Buss dated 11 August 2022. Mr Buss is the director of Workforce at the Northern NSW Local Health District. The Determination required NSW Health Service Employees to have received at least dose of a COVID-19 vaccine as of 12 November 2021 at least 2 doses on and from 30 November 2021. The making of the Determination did not rely any of the public health orders which the applicant seeks to review, and no public health orders are referred to in the Determination.
3. Also attached to Mr Buss' affidavit is a letter sent by the Northern NSW Local Health District to Ms Davis dated 30 November 2021. The letter informed Ms Davis that PHO1 has been rescinded and replaced with PHO2. Ms Davis was also advised, in the letter, of the Determination issued by the Secretary of NSW Health on 12 November 2021, and that the requirements of the Determination apply to her in addition to the requirements under PHO2. Ms Davis was also provided with a final opportunity to provide appropriate evidence of an approved COVID-19 vaccination or an exception due to medical contraindication or comment on her possible termination of employment.
4. In a further letter annexed to Mr Buss' affidavit and dated 8 December 2022, Wayne Jones, chief executive of Northern NSW Local Health District, sent a "Notice of Termination" advising Ms Davis that her employment was terminated because she had failed to provide appropriate evidence of COVID-19 vaccination or an exception due to a medical contraindication in breach of PHO2 or the 12 November 2021 Determination.
5. The grounds for Ms Davis' termination of employment were stated as being on two alternative grounds. The first ground was non-compliance with PHO2, which was the relevant public health order that was in force at the time. The alternative ground was that she had failed to comply with the Determination "which made vaccination against COVID-19 a condition of employment in the NSW Health Service."
6. Even if it were determined, in these proceedings, to set aside or vary any of the impugned directions made under the public health order, the Tribunal could not make an order reinstating Ms Davis' employment. Further, the alternative ground for termination of Ms Davis' employment would remain in force. There has been no suggestion that the alternative ground could be challenged or is being challenged. It follows that the setting aside or variation of the directions contained in the public health orders, for which Ms Davis is seeking review, would have no practical effect on the challenge to the termination of her employment.

Correcting the Record and Reputation

1. Ms Davis' also submits that the proceedings will have a practical effect because they will 'correct the record' and 'vindicate' her.
2. In Ybasco, the suspension on a taxi driver's authority was lifted after the administrator was advised that criminal charges against the driver had been withdrawn. The Tribunal found that the suspension had been 'rescinded', indicating that the decision had been revoked and ceased to have effect. The Tribunal in Ybasco found that there may be circumstances where it remained important to the person affected to have an original decision reviewed, even though the decision was no longer operative. That includes that a person may have a continuing interest in the question of whether the original decision was the correct and preferable one because the decision may have collateral implications. The Tribunal gave as an example that a suspension may have to be declared in future applications for licences and went on to state at [17]: Or a person may simply wish to vindicate their reputation by showing that the original suspension was unjustified, and seek to have it struck from official records.
3. The facts in these proceedings are distinguishable from those in Ybasco. The scenario raised in Ybasco seeks vindication relating to a suspension which had come about because of criminal charges laid against the applicant. The applicant had been charged with three counts of indecent assault and one count of detaining for advantage, all occurring whilst the applicant was in control of a taxi. More importantly, those serious criminal charges were subsequently withdrawn and the suspension on the taxi drivers authority was lifted. In the case of Ybasco the underlying premise for the suspension, the criminal charges had been withdrawn and the suspension lifted and that is the record which the applicant sought to correct and the reason why the applicant sought to vindicate his reputation.
4. Ms Davis' circumstances differ. Her review application relates to public health orders which required her to receive COVID 19 vaccinations as a health worker. There is no suggestion that the requirement for vaccination was ever met by Ms Davis during the relevant period and so there is no record to correct. While Ms Davis may have views as to why she did not want to comply with the public health order, I am not satisfied that, in this case, Ms Davis' reputation or the correction of the record would amount to collateral implications which would warrant continuing with the review application, in circumstances where the public health orders have lapsed.

Public Importance

1. The applicant submits that the proceedings raise matters of public importance and, on that basis, there is a utility in the proceedings continuing and the application should not be dismissed.
2. The respondent submits that the issues of public importance raised by the applicant do not have practical effect as between the parties and therefore are not matters that need consideration. In my view, the fact that the application may raise issues of public importance may still be a discretionary factor to be considered in determining whether to dismiss the application.
3. The applicant relies on the Appeal Panel's comments regarding public importance in the Davis Appeal. At the time the appeal was before the Appeal Panel, PHO1, which had been the subject of the review of the initial application, was no longer in force (however, subsequent public health orders came into force). The reference which the applicant relies on is contained at [39] - [40] of the Appeal Panel's reasons: … the proper construction of s 7(7) is nonetheless a question of public importance given the ongoing nature of the COVID-19 pandemic and the continued operation of other public health orders made under 7 of the Public Health Act. 40. For these reasons we grant Ms Davis leave to appeal.
4. I am not satisfied that the outcome of these proceedings has a public importance in the same way as was referred to by the Appeal Panel. The Appeal Panel was considering public importance in the context of whether leave should be granted to Ms Davis to appeal. Importantly, the Appeal Panel was considering, as a question of law, solely the question of whether NCAT has authority to determine an application for administrative review of the impugned directions and not the merit of those directions. As the Appeal Panel identified, s 7(7) affects the continued operation of 'other' public health orders. The Appeal Panel's comments in relation to public importance related to the operation of s 7(7) of the Public Health Act 2010 and NCAT's authority in relation to administrative review of such orders. The Appeal Panel determined that the Tribunal has authority to review the impugned directions. The issue that the Tribunal would now need to determine, were this application to continue, is whether the decision by the Minister to make those directions, was the "correct and preferable decision". The public importance identified by the Appeal Panel relates to the proper construction of s 7(7) of the Public Health Act 2010 and not to the review of the impugned direction of the public health order.
5. Further, at the time the Appeal Panel was determining the appeal, subsequent public health orders relating to COVID-19 vaccination of health workers were still on foot. PHO4 expired on 19 June 2022, and no further Public Health Orders have been made in relation to COVID-19 vaccination of health workers.
6. The written submissions made by Ms Davis' legal representative (reproduced at [28] above) point to several matters which, they say, are public health considerations and which demonstrate a utility in determination of the proceedings. The considerations asserted to be public health considerations include preventing unnecessary death and illness in future, alleviating pressures on the health system, setting a precedent for other sectors affected by similar mandates, including education, police and the general public, alleviating massive economic and societal costs more generally and considering the safety and effectiveness of experimental intravenous drugs (presumably the vaccinations). Ms Davis also submits that the Minister has not provided a statement of reasons for making or remaking the public health orders and has not lodged material with Tribunal in accordance with s 58 of the ADR Act, amounting to a lack of transparency and desirability of review. Ms Davis says that administrative decisions have significant and widespread impact and should not go unchecked.
7. Utility was considered in the context of whether to grant leave to appeal in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299. The appeal was in relation to judicial review proceedings in respect of different public health orders. At [27] - [28] of the judgement, Bell P (as His Honour then was) states: Leave to appeal will also be refused where its grant would lack utility [references omitted]]. Not only is this consideration sound as a matter of common sense, but to grant leave in a case where there would be no utility in doing so scarcely facilitates "the just, quick and cheap resolution of the real issues in the proceedings" cf. Civil Procedure Act 2005 (NSW) s 56. Moreover, scarce judicial resources should not be deployed in resolving proceedings whose utility is either wholly lacking or extremely limited: see, for example, Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16]. Utility is, moreover, not to be measured by the interest that may lie in the particular answer of a court of a particular status on a question or questions in circumstances where any answer it gives will have no practical effect as between the parties, or at all. It is not the role of this Court to give advisory opinions on what may have become hypothetical questions. In Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9 at [47], the plurality of the High Court noted that: "Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude." (footnote omitted).
8. While these are not proceedings that require leave in the same way as an appeal, the principles set out in Kassam are relevant to determining whether there is utility in these proceedings continuing and in deciding whether to dismiss the application.
9. It is no part of the role of this Tribunal to give advisory opinions on issues which have become hypothetical questions or to use resources resolving proceedings the utility of which is either wholly lacking or extremely limited. That would be an improper use of the Tribunal's limited resources.
10. I am mindful that the parties have not yet been provided with an opportunity to put on their substantive evidence. Ms Davis is seeking to challenge the underlying information which gave rise to the imputed directions that were made by the respondent. The Minister disputes that the Tribunal has jurisdiction to review that underlying information in the context of the provision of s 7(7) of the Public Health Act 2010. Regardless of whether the Tribunal has jurisdiction to review those matters, I agree that this matter, if it proceeds will require the expenditure of significant resources on the part of the parties and the Tribunal. The proceedings will likely require expert medical evidence and, if leave is granted for the application to be amended, also evidence in relation to the relevant circumstances at each point that each of the public health orders were made. It is likely that there will be examination and cross examination of witnesses, preparation and hearing time.
11. This is an, administrative review of public health orders concerning impugned directions requiring the COVID-19 vaccination of health workers. That is a specific set of circumstances, and the outcome of these proceedings, even if the public health orders were set aside, would have no direct effect on how a relevant authority, including a Minister, might make public orders in the future. Any review of the directions given under public health orders made in the future would be by reference to the relevant circumstances at that future time.
12. Any order made by the Tribunal in these proceedings could not alleviate whatever pressures may have been placed on the health system.
13. In relation to Ms Davis' submissions regarding transparency and accountability, orders were made by NCAT on 16 May 2022, under s 58(3) of the ADR Act, extending time for the Minister to lodge the s 58 documents "until further order of the Tribunal". Documents are lodged under s 58 of the ADR Act to facilitate the Tribunal's consideration of whether to make the ultimate orders sought and not for the purpose of enabling an applicant to investigate matters generally.

Conclusion on Dismissal Application

1. Having considered the submissions of the parties, I find that there would be no practical effect in the review proceeding. I reject the suggestions that if Ms Davis were successful her reputation might somehow be restored, the record may be amended, the termination of her employment might be affected or the perceived public interest concerns that she has raised would be addressed.
2. Weighing up the relevant factors, there is no real practical significance or effect which could arise out of the making of any of the orders sought by Ms Davis in these proceedings. The proceedings would consume and divert NCAT's resources in the adducing and considering of evidence and that would be disproportionate to the minimal or negligible utility of the orders sought, under s 63 of the ADR Act.
3. On that basis, I determine that the application is, presently, lacking in substance, and should accordingly be dismissed pursuant to s 55(1)(b) of the NCAT Act. Given that determination, there is no reason to further consider the proposed amended statement of grounds.

Orders

1. Accordingly, I made the following orders: 1. Leave to amend the application is refused. 2. The application for administrative review lodged on 23 September 2021 is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2022