E Rusiti (Plaintiff)
J Davidson (Fourth Defendant)
Source
Original judgment source is linked above.
Catchwords
E Rusiti (Plaintiff)
J Davidson (Fourth Defendant)
Judgment (3 paragraphs)
[1]
Solicitors:
Ashley, Francina, Leonard & Associates (Plaintiff)
Australian Government Solicitor (Fourth Defendant)
File Number(s): 2021/249601
[2]
EX TEMPORE Judgment
(revised from transcript)
These proceedings are listed with related proceedings for an urgent hearing commencing on 30 September 2021. The proceedings involve various forms of challenge to the validity of a number of directions and orders made under the Public Health Act 2010. Without traversing all of the grounds of alleged challenge, the two that are relevant for the present are a claim that the relevant orders made under the Public Health Act are invalid for unreasonableness for various reasons to which I will come to; and a contention in paragraph 12 of the statement of claim that the public health order is invalid as it is part of and gives effect to a scheme of civil conscription said to have been agreed between the State of NSW and the Commonwealth in circumstances where it is said the Commonwealth is precluded from imposing that scheme by s 51(xxiiiA) of the Constitution.
When the matter was set down for hearing various directions were made imposing a tight timetable on the parties to have it prepared. On or about 13 September 2021 the plaintiff issued a notice to produce to the fourth defendant, the Commonwealth of Australia (the "Commonwealth"), seeking the production of documents in 12 categories. The Commonwealth have applied by notice of motion to set aside the notice to produce. The Commonwealth's motion has been fixed before me on an urgent basis today.
After some negotiation and discussion, all that remained in issue was the production sought by paragraph 5 of the notice to produce, which is in the following terms:
"All health advices provided to and/or relied upon by the body commonly referred to as National Cabinet including, but not limited, to advice provided by the Australian Health Protection Principal Committee concerning:
(a) the formulation of the response to COVID‑19 of the Commonwealth Government and/or national cabinet;
(b) the formulation of the National Plan to Transition Australia['s] National COVID‑19 response (the National Plan); and
(c) the administration, including but not limited to the mandating of COVID‑19 vaccines".
In response to correspondence from the Commonwealth setting out its objection to production of documents answering that paragraph, the plaintiff's solicitors proffered two variations on this category. One variation is a limitation on the documents sought to only those relevant to the period of seven days immediately preceding eight nominated dates, the first being 18 March 2020 and the last being 6 August 2021. The alternative variation is that the plaintiff presses production of those documents but confined to "the period 1 May 2021 to date".
The Commonwealth sought the setting aside of paragraph 5 in both its original and revised forms on three interrelated bases. The first is that the category of documents sought is inconsistent with what should be required by a notice to produce which is directed towards the production of specific documents or things (see Uniform Civil Procedure Rule 21.10(1)(b)). The second is the lack of any relevance of the material sought to the plaintiff's case. The third is what the Commonwealth submitted was the oppressive nature of the number of documents sought in the context of an urgent hearing.
Counsel for the plaintiff, Mr King, sought to resist all of those contentions. In the course of his submissions, he identified what was said to be the relevance of the material sought, a matter I will return to.
In relation to the first matter raised by the Commonwealth, it is the case that a notice to produce must require the production of documents or things that are specifically described (see Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [38]). In particular, a notice to produce is generally not a substitute for discovery and it is generally not a means by which even classes of documents can be obtained.
In the context of a case such as this where it can be said that the issues are important but the matter is urgent, there are some competing considerations as to whether the rules in relation to notices to produce should be strictly applied or whether the Court should be more flexible and allow it to be treated as more akin to a discovery, namely the fairness to a plaintiff who is facing an urgent hearing, but equally the unfairness that might be imposed upon a defendant who is at risk of being shoehorned into a final hearing on an urgent basis while dealing with a notice to produce drafted in wide terms.
I will pass over this issue for the moment other than to note that the broader and wider the terms of the notice to produce then more difficult the task of identifying some legitimate forensic purpose for the documents sought.
So far as the forensic relevance of the documents are concerned, in correspondence and in Mr King's oral submissions reliance was placed on the parts of the statement of claim that I have referred to earlier. So far as the Constitutional issue is concerned, paragraph 12 of the statement of claim pleads the existence of an agreement between the Commonwealth and the State of New South Wales pursuant to which it is said that the Commonwealth agreed to maintain an order under the Biosecurity Act 2015 and to record and certify the vaccination of people in New South Wales under the Australian Immunisation Register Act 2015. It also pleads that, "[t]he quid pro quo for which is that the third defendant [ie the State] will impose civil conscription by the vaccination of its population with vaccines obtained and recommended by the Commonwealth".
A pleading in that terms raises a number of issues concerning the operation of s 51(xxiiiA) of the Constitution, including, for example, whether any aspect of the scheme put into place by the Public Health Act and the orders made under it imposes any form of "civil conscription". Leaving that aside, the effect of this pleading is, that assuming all questions of construction of s 51(xxiiiA) are resolved in favour of the plaintiff, the Commonwealth and the States agreed that the State would give effect to something that the Commonwealth is constitutionally precluded from doing. Presumably some reliance is placed upon cases involving similar schemes to effect acquisitions of property such as Magennis v The Commonwealth (1949) 80 CLR 382 (see ICM Agriculture v The Commonwealth (2009) 240 CLR 140.)
Returning to paragraph 5 of the notice to produce, on its face it is very broadly drafted. Even if one confines the concept of "Health Advice" to advice provided by the Australian Health Protection Principal Committee ("AHPPC"), it is very difficult to see the connection between the provision of any such advice to a body described as National Cabinet, even assuming it includes New South Wales Government Ministers, and the pleaded case involving an alleged contravention of s 51(xxiiiA) given effect to by the orders under the Public Health Act. As I understand it, it is not the medical basis or reason for entering into any agreement that is impugned by paragraph 12 of the statement of claim; it is the fact of the agreement itself that is said to give rise to the constitutional issue.
Even if it is possible that some document or other that might fall within paragraph 5 of the Notice to Produce could be produced that might bear upon paragraph 12 of the Statement of Claim, the fact that it can only be said in those terms highlights the problem identified at the outset with using a notice to produce in the context of litigation such as this for the production of such a wide category of documents.
The other suggested forensic basis for the production of the broad category of documents sought by paragraph 5 of the Notice to Produce are the various particulars of unreasonableness set out in paragraph 11 of the Statement of Claim.
To the extent that that paragraph contains factual assertions, they at least appear to include: a contention that public health orders involve unnecessary suffering, loss and undue cost; that there is, so it is said, no demonstrated health risk from COVID-19 to 99.9% of the inhabitants of New South Wales; that more inhabitants of New South Wales are in hospital from adverse reactions to the mandated vaccines than from COVID-19; that the approach of public health orders and their cost are outweighed by such matters as the shutting down or limitation of other health services; that the restrictions imposed by the public health order are indeterminate and that the vaccination rate of 80% is not, "practically achievable"; that there is some scientific doubt about whether the available vaccines to deal with COVID‑19 are "true vaccines"; and the otherwise ineffective nature of the restrictions imposed by the public health orders.
All those particulars take place in a context where at least the prima facie position appears to be that an assessment of the unreasonableness of an order under the Public Health Act starts with the material that was before the relevant decision maker when the order was made. As I said paragraph 5 of the Notice to Produce is drafted in wide terms. It is difficult to see how advice provided by the AHPPC in the various timeframes nominated bears upon an assessment of the reasoning process of the Minister when he made the relevant orders under the Public Health Act. Put another way, given the width of paragraph 5, all that can really be said at the moment is that it is nothing more than a possibility that some document that falls within paragraph 5 of the Notice to Produce might have some bearing on an assessment of the issues raised by paragraph 11 of the statement of claim.
As noted, the Commonwealth otherwise contended that the production of material that answered paragraph 5 of the notice to produce would be oppressive. It was also contended that if production was ordered then issues of public interest immunity would arise, although that might require a determination of whether the protection usually afforded to cabinet documents would also apply to the body described as the "National Cabinet". I am not in a position to assess the overall oppressiveness of production at this stage. It suffices to state that I have extremely grave concerns that, if production was to be required under paragraph 5, it seems unlikely that could be done in such an orderly fashion as to not only just preserve the hearing date of 30 September but to even allow this matter to be heard in a sufficient time so that if the plaintiff was successful there would be some utility in the proceedings going forward.
I return to what I said at the beginning about the use of the notice to produce drafted in such wide terms. In a proceeding fixed so urgently I would not necessarily set aside a notice to produce that was drafted in terms that did not comply with UCPR 21.10(1)(b) if it could otherwise be justified as a reasonably well‑drafted and closely confined discovery category. However, in this case I am confronted with a notice to produce that is on its face drafted far too widely to comply with UCPR 21.10(1)(b) in the context of an urgent case where the connection between the documents sought and the factual matters in issue seems remote at best having regard to the pleaded issues.
In those circumstances, paragraph 5 of the notice to produce is set aside.
[The parties addressed on costs]
I order that the costs of the Commonwealth's notice of motion be costs in the cause.
[3]
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Decision last updated: 21 September 2021