Larter v Hazzard

The background to the applications

1. Section 7 of the Public Health Act 2010 (NSW) (the Act) relevantly provides: "Power to deal with public health risks generally (1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. (2) In those circumstances, the Minister - (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. …"
2. In order to address the public health issues arising from the COVID-19 pandemic, the Minister has made several orders, in purported exercise of his power under s 7 of the Act, of which the following are presently relevant.
3. On 26 August 2021 at 9.54am, the Minister made Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (the Order). The Order was amended on 29 September 2021 at 2.44pm (the Amended Order). At 5.49pm on 22 October 2021, the Amended Order was repealed and replaced by Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW) (the Second Order). Each of the three orders required health care workers (as defined) to be vaccinated by particular dates as a condition of being permitted to provide health care services in New South Wales.
4. By summons filed on 10 September 2021, the plaintiff challenged the Order and sought orders, which included declarations that the Order was invalid and that the plaintiff was entitled to continue to work as a health care worker on and after 30 September 2021. The plaintiff also sought a mandatory injunction requiring the second defendant to continue to employ him in his capacity as a Station Officer - Team Leader in Tumut, and to continue to roster him for work in that capacity. The summons did not comply with UCPR, r 59. 4 in that, although it set out the orders sought, it failed to identify "with specificity, the grounds on which the relief is sought", as required by UCPR, r 59.4(c). I understood that this omission was a consequence of the urgency of the challenge.
5. On 14 September 2021, Beech-Jones CJ at CL directed that on or before 4pm on 16 September 2021 the plaintiff file a brief outline, not exceeding 4 pages, of the legal basis for the claims for relief in paragraphs 1 to 7 of the summons. I apprehend that this direction was intended to inform the Court of the matters which would usually have been contained in the summons. In the submissions filed in accordance with this direction, the plaintiff, a father of six dependent children, identified himself as a conservative Catholic who does not propose to be vaccinated. Mr (Shane) Prince SC, who appears with Mr Maconachie for the plaintiff, submitted that while the Order provided for an exemption on the basis of a medical contraindication, it failed to provide for an exemption on the basis of deeply held religious beliefs, such as those held by the plaintiff. He submitted that this distinction was "arbitrary and capricious" and led to the Order being manifestly unreasonable and, therefore, invalid.
6. An amended summons was filed on 22 September 2021 to correct the name of the second defendant.
7. As referred to above, the Order was amended on 29 September 2021 and the Second Order was made on 22 October 2021. To date, the plaintiff has not filed a further amended summons, although he intends to challenge these orders. Directions have been made regarding a further amended summons.
8. On 25 October 2021, the plaintiff sought the issue of a subpoena to the Minister to give evidence at the substantive hearing. When the defendants enquired as to the topics about which the plaintiff would seek to adduce oral evidence from the Minister, they were informed that the Minister would be asked about his reasons for making the Order, the Amended Order and the Second Order.
9. On 26 October 2021, the plaintiff served a notice to produce on the defendants which relevantly sought, in paragraph 11: "Any document referring to any consideration of the provision of leave, whether paid or unpaid, for [the plaintiff]."
10. The defendant has filed an affidavit by Dr Kerry Chant, the Chief Health Officer at NSW Health, who has a key role in advising the Minister on the public health response to the COVID-19 pandemic. She approved the briefing note to the Minister regarding the order which became the Second Order.
11. At no time has the plaintiff sought reasons pursuant to UCPR, r 59.9. Mr Prince SC has confirmed that the plaintiff will also seek relief in respect of the Amended Order and the Second Order. He also confirmed that the ground on which the Order, the Amended Order and the Second Order are to be challenged is confined to legal unreasonableness, including lack of proportionality.

The application to set aside the subpoena

1. Mr Kirk SC, who appeared with Mr (Thomas) Prince for the defendants, submitted that the subpoena ought be set aside on the following three grounds: first, that it had not been issued for the purpose of obtaining relevant evidence; secondly, it is an abuse of process, in circumstances where the plaintiff has not sought reasons pursuant to UCPR, r 59.9; and, thirdly, the subpoena is oppressive, having regard to the Minister's other commitments, including to appear as a witness in the Legislative Council's Budget Estimates on Thursday, 4 November 2021.
2. Mr Prince SC submitted that the Minister's reasons were potentially relevant to the question of unreasonableness. Further, he submitted that it was highly significant that the terms of the Amended Order set out various grounds which were materially different from the grounds which were set out in the Second Order. He insinuated that the grounds in the Second Order may have been included in response to these proceedings to shore up the validity of the Second Order and that he ought be entitled to examine the Minister about the change to the grounds. Although Mr Prince SC emphasised the change in the expressed grounds between the Amended Order and the Second Order, he eschewed any reliance on bad faith. Further, he explained that no statement of reasons had been sought pursuant to UCPR, r 59.9 because the plaintiff and the Court were entitled to hear the Minister articulate, in his own words, why he made the orders and the significance of the change of grounds between the Amended Order and the Second Order. As Mr Prince SC put it in oral submissions: "Having a public servant or some assistant prepare or assist [to] prepare some written reasons in a response to a request under the [UCPR], I submit, wouldn't get the best evidence out to your Honour of what the reasons were for this Minister to take this extraordinary step in these extraordinary circumstances. Bearing in mind that [the orders are] also directed to a very large workforce of whom the Minister is the responsible employer or the direct in line."
3. The principles which apply to a subpoena to give evidence are the same as those which apply to a subpoena to produce documents. UCPR r 33.4(1) grants a discretion to the Court to set aside a subpoena on the application of a person with sufficient interest. As the Minister is a party to the proceedings, he has standing to apply to set aside the subpoena.
4. The starting point is relevance and, in particular, whether it is likely that evidence adduced from the Minister will be relevant to the issues in the proceedings. In One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491, Ward J reviewed the authorities on subpoenas to produce documents. Her Honour referred to the "on the cards" formulation (whether it is "on the cards" that the documents sought will materially assist a party, which derives from the authorities referred to in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (Beazley JA, James and Kirby JJ agreeing) at [64]) and said: "[30] In civil proceedings, however, the 'on the cards' test has not been broadly embraced. In ICAP, Nicholas J expressed caution in the application of a test which incorporates a phrase such as 'on the cards' or 'could possibly throw light on' when the legitimate forensic purpose of a subpoena is challenged. [31] Applying in this case the test in civil proceedings, as stated by Nicholas J in ICAP (namely that 'it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will', at [30]) and noting that it must be reasonable to infer that the documents so sought exist, a careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena."
5. While there is a judicial obligation to give reasons, no such obligation arises as a matter of common law with respect to administrative decisions or the making of delegated legislation (the distinction between these categories need not be explored for present purposes). However, an obligation to provide reasons is not infrequently imposed by statute, as in UCPR, r 59.9. The statutory obligation to provide reasons is determined by the terms of the instrument requiring such reasons. In the case of proceedings for judicial review in respect of which relief is sought in relation to a decision of a public authority (which is the defendant in such proceedings), the public authority is obliged to provide "a statement of reasons for the decision", which sets out "findings on material questions of fact", refers to the "evidence or other material on which those findings were based" and "explain[s] why the decision was made." UCPR, r 59.9 provides no warrant for the decision-maker to be called by the plaintiff as a witness and examined as to his or her reasons for the decision, which is what is proposed in the present case. Mr Kirk accepted that, had the plaintiff requested reasons under UCPR r 59.9, the Minister would have been obliged to provide a statement of reasons.
6. There being no obligation for the Minister to give reasons for the making of the orders under consideration, the further question arises what relevant evidence he could give about their making. This question is to be answered by reference to the summons. As the summons in its further amended form is not before the Court, relevance is to be determined by reference to the plaintiff's submissions. The plaintiff's challenge is confined to the result (which is alleged to be manifestly unreasonable and disproportionate) and does not include a challenge to any aspect of the process (such as that the Minister failed to take into account a mandatory relevant consideration or took into account a consideration which was irrelevant). In these circumstances, it is difficult to see how the Minister's reasons could be relevant in any substantive way. For example, the Minister may have a view that a medical contraindication constitutes an appropriate reason to exempt a person from a requirement that he or she be vaccinated but that a religious objection is not. Whether or not the Minister holds this view does not determine whether the orders are legally unreasonable.
7. Legal unreasonableness in this context is analogous to manifest excess or manifest inadequacy in the context of sentencing. In the latter context, it is well-established that manifest excess or inadequacy is a conclusion that does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). Thus, if the orders are legally unreasonable, no reasons can save them and if they are not legally unreasonable, reasons cannot impugn them on that basis.
8. I understand one of the plaintiff's arguments to be that about 140,000 of the population of New South Wales are health workers who would be covered by the orders. On the basis that approximately 94% of the population has already had at least one vaccination (and can reasonably be inferred to be prepared to have a second), the difference it would make if 6% of the health workers (assuming that the take-up rates for health workers were the same as for the general population) were not vaccinated would be so marginal as to be immaterial and would not affect in any meaningful way the risks of community transmission of the COVID-19 virus. This argument does not depend on the Minister's reasons. Rather, it challenges the legal reasonableness of the outcome, as expressed in the orders. I apprehend that Dr Chant will be required for cross-examination which will afford the plaintiff an opportunity to explore the effect of the orders and the basis for his claim of legal unreasonableness.
9. Further, the questioning of the Minister by the plaintiff about the making of the orders and the wording of the grounds may tend to enlarge the grounds of challenge since the questioning will inevitably explore the process by which the orders were made. This will almost inevitably lead to an adjournment of the proceedings since further grounds without an adjournment could be expected to prejudice the defendants who have had no notice of any challenge beyond legal unreasonableness. Thus, to permit the Minister to be examined by the plaintiff in these circumstances would be inimical to the overriding purpose of civil proceedings, being the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act 2005 (NSW). Had the plaintiff wanted to challenge the process by which the orders were made, or the Minister's reasons for making them, he had the opportunity to seek a statement of reasons, which would have been forthcoming.
10. An additional relevant factor is that Ministers occupy a particular position of responsibility in our system of government. They are members of Parliament and part of the executive government. They often, as here, have powers conferred by Parliament. In addition, they are responsible for forming and implementing government policy. The demands on their time are significant. Where evidence is unlikely to be anything other than marginally relevant, the competing demands on a witness's time have particular weight. This is particularly the case when one such demand is the Minister's obligation to answer questions at the Legislative Council's Budget Estimates on the day on which the matter is listed for hearing.
11. Although it does not apply in terms, s 15(2)(b) of the Evidence Act 1995 (NSW) (which provides that a member of a House of an Australian Parliament is not compellable to give evidence if the member would, if compelled to give evidence, be prevented from attending a meeting of a committee of that House or that Parliament, being a committee of which he or she is a member) is of some relevance. It indicates a clear Parliamentary intention that the processes of Parliament are not to be disrupted by court proceedings. To require the Minister to give evidence in this Court at a time when he would otherwise be required to answer questions in the Legislative Council's Budget Estimates would have a tendency to disrupt the business of a Parliamentary Committee. It is not necessary to determine the weight to be given to this factor in circumstances where the Minister's evidence in this Court would be, at best, marginally relevant.
12. Nor is it necessary to address issues relating to public interest immunity which may arise if the Minister were questioned about matters which had been considered by the Cabinet Committee for COVID-19 and Economic Recovery (formerly the Crisis Cabinet Committee).
13. In summary, as far as can be discerned from the submissions, the plaintiff wants to ask the Minister about his reasons and the processes associated with the making of the orders. These matters are outside the allegation of legal unreasonableness, which is the sole ground of challenge. For these reasons, and in these circumstances, I am persuaded that the subpoena ought be set aside.

Application to set aside the notice to produce

1. Mr (Thomas) Prince argued that paragraph 11 of the notice to produce ought be set aside because it sought documents which could not be relevant to any issue in the case.
2. Mr Prince SC contended that paragraph 11 of the notice to produce ought not be set aside because it was relevant to the plaintiff's argument about proportionality that he would suffer financial loss or disadvantage as a direct result of the orders if he refused to be vaccinated on religious grounds. I was told that the plaintiff is on paid sick leave at the moment (although I was assured that he was not sick and is fit to participate in the proceedings), having earlier taken unpaid leave for a fortnight.
3. The orders plainly affect the right of particular persons to provide health services in New South Wales unless they are vaccinated. Whether the plaintiff is presently on paid or unpaid leave would seem to me to be beside the point. I am not persuaded that documents relevant to the defendants' consideration of the plaintiff's leave could bear on the alleged legal unreasonableness or otherwise of the orders. For these reasons, I set aside paragraph 11 of the notice to produce.

Orders

1. For the reasons given above, I made orders on 1 November 2021, which included the following: 1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.4, set aside the subpoena to give evidence issued to the first defendant. 2. Reserve the costs of the notice of motion to set aside the subpoena. 3. Set aside paragraph 11 of the notice to produce served by the plaintiff on the defendants. 4. Make no order as to the costs of the notice of motion to set aside the notice to produce. 5. Direct the plaintiff to serve on the defendants and provide to the Court his proposed further amended summons by 4pm on 2 November 2021.

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: 02 November 2021