Tey v State of New South Wales; Altakrity v State of New South Wales

Commissioner of Police v Thomson [2020] NSWSC 1424 Commonwealth v AJL20 (2021) 273 CLR 43; [2021] HCA 21 Cotterill v Romanes [2021] VSC 498; 360 FLR 341 Cotterill v Romanes [2023] VSCA 7 Farm Transparency International Ltd v New South Wales [2022] HCA 23; 96 ALJR 655 Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) (2020) 102 NSWLR 900; [2020] NSWCA 160 Harrington v Lowe (1996) 190 CLR 311 at 328; [1996] HCA 8 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; [1986] HCA 60 Minet v Leman (1855) 20 Beav 269; (1855) 52 ER 606 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46 North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 Palmer v State of Western Australia (2021) 272 CLR 505; [2021] HCA 5 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 United States v Fisher, 6 US 385; 2 Cranch 358 (1805) Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2 Category: Principal judgment Parties: Victor Kah-Xu Tey / Renee Nicole Altakrity (Plaintiffs) State of New South Wales (First Defendant) Bradley Ronald Hazzard, Minister for Health and Medical Research (Second Defendant) Representation: Counsel: P Menzies KC / F Maghami (Plaintiffs) M Sexton SC / MWR Adams (First and Second Defendant)

Solicitors: Lehman Walsh Lawyers (Plaintiffs) Crown Solicitor for NSW (First and Second Defendant) File Number(s): 2021/00307488 2022/00020977 Publication restriction: Nil

JUDGMENT

1. BASTEN AJ: Each of the plaintiffs, Victor Kah-Xu Tey and Renee Nicole Altakrity, faces one charge under s 10 of the Public Health Act 2010 (NSW) ("Public Health Act") for failing to comply with a direction in the form of a Public Health Order. Mr Tey also faces a charge of refusing or failing to comply with a direction under s 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("Law Enforcement Act"). The charges have not yet been heard but are presently pending in the Local Court.
2. On 29 October 2021, Mr Tey filed a summons in this Court seeking declarations challenging the validity of provisions of the Public Health Act and the validity of the certain orders made under s 7 of the Public Health Act. First, the Public Health Act, and the orders under it, were sought to be construed as not prohibiting or restricting public political communications and/or political protests. Alternatively, if properly construed the legislation did have such effects, then declarations were sought that the Public Health Orders and the Public Health Act were invalid because they impermissibly burdened the implied freedom of political communication under the Commonwealth Constitution. The summons also sought to challenge the validity of s 197 of the Law Enforcement Act.
3. Ms Altakrity commenced similar proceedings in this Court on 24 January 2022, seeking orders in different terms but to similar effect. Each summons named the State as the first defendant and the then Minister for Health, Bradley Hazzard, as the second defendant. (It would have been appropriate to name the office, rather than the individual holding the office at the relevant time.) The informants, who issued the court attendance notices, were not joined. Neither summons sought a substantive order quashing the court attendance notices, although that was evidently the intended purpose of the declarations.
4. Although the charges concerned conduct which occurred on 9 May 2020, 5 September 2020 and 3 July 2021, none of the matters have proceeded to a hearing in the Local Court. They have, presumably, been stood over from time to time to allow these proceedings to be commenced, heard and determined. The proceedings in this Court have also been stood over to allow a separate set of related proceedings to be heard.
5. In the meantime, a similar challenge based on the implied freedom of political communication has been considered and decided in Victoria with respect to an infringement notice issued to a person conducting a protest against the "stay at home directions" made under the Public Health and Wellbeing Act 2008 (Vic). On 17 August 2021, Niall JA (sitting in the Common Law Division) dismissed the proceedings: Cotterill v Romanes. [1] On 8 February 2023, the Court of Appeal dismissed an appeal from the judgment and orders of Niall JA. [2] Although the Solicitor-General submitted that the Victorian legislation was not relevantly distinguishable, he did not contend that this Court was bound by the result in Cotterill. Accordingly, while I have had regard to the reasoning in both Victorian judgments, I have treated the question as to the validity of the New South Wales legislation as a matter which has not yet been determined.

Application for an extension of time

1. The plaintiffs' written submissions conceded that they required an extension of time within which to commence their respective proceedings, although no order extending time was sought in either summons. That view appears to have been based upon an assumption that the proceedings were brought under s 65 or s 69 of the Supreme Court Act 1970 (NSW), or were otherwise proceedings in the supervisory jurisdiction of the Court and thus engaged Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): see r 59.1(1). Pursuant to r 59.10, proceedings for judicial review of a decision must be commenced within three months of the date of the decision. However, these proceedings did not challenge the issue of the court attendance notices, nor the making of the Public Health Orders. Rather, they challenged the scope of the powers conferred under the Public Health Act. As the ultimate intention was to quash or set aside the court attendance notices, it was significant that none of the usual grounds of judicial review was relied upon. The Solicitor-General conceded that, were an extension necessary, it was not opposed.
2. As will be explained below, while public health orders might be susceptible to review for failure to comply with the terms of the Public Health Act under which they were made, only the Act could be reviewed for compliance with the Constitution. The former is commonly described as administrative law review, the latter as constitutional review. Whether the latter engages UCPR Pt 59 may well be an open question; as it does not need to be resolved in this case, it will not be.
3. It is sufficient to find that to the extent that the plaintiffs require an extension of time, they should have it.

Identifying the issues

1. The State's submission, already adverted to, that the only question before the Court was a constitutional question, and that that question could only arise with respect to the scope of the statute, identifies a preliminary issue. There were other issues raised by the plaintiffs which were not clearly separated in either summons, nor in the common written submissions for both plaintiffs. (At the hearing, counsel for the plaintiffs added little to their written submissions.) However, the issues may be expressed in the following terms: 1. Does the Public Health Act, properly construed, confer on the Minister a power to take action or give directions which restrict the freedom of people to engage in communication on political matters? 2. Did the Public Health Orders, properly construed, restrict the freedom of people to engage in communication on political matters? 3. If the answer to question (1) is yes, is the Public Health Act invalid because it is incompatible with the implied constitutional freedom of political communication? 4. If the answer to question (2) is yes, were the Public Health Orders invalid because they were incompatible with the implied constitutional freedom of political communication? 5. If the answers to questions (1) and (3) are yes, can the Public Health Act be read down so as to be invalid only to the extent that it restricts people from communicating on political matters? 6. If the answers to questions (2) and (4) are yes, can the Public Health Orders be read down so as to be invalid only to the extent that they restricted people from communicating on political matters?

Evidence

1. The parties took different views as to the scope of the relevant evidence, but agreed that a ruling on the objections would depend upon determining aspects of the substantive submissions as to the proper basis of challenge in this Court. It was agreed that the objections could be disposed of in this judgment.
2. The plaintiffs each filed an affidavit setting out the background to their activities, intentions and beliefs in relation to the conduct which gave rise to the charges. The State objected to the bulk of that evidence. For example, with respect to Ms Altakrity, only the evidence of her being charged on 9 May 2020 and the copy of the court attendance notice served on her were said to be relevant. With respect to Mr Tey, the State conceded the relevance of his evidence that he attended protest gatherings on 5 September 2020 and 3 July 2021, and was charged with breaches of relevant Public Health Orders and failure to comply with a "move on" direction given under s 197 of the Law Enforcement Act. Annexures containing the briefs of evidence in each matter and the relevant court attendance notices were accepted as relevant material in his case.
3. In addition, the plaintiffs had sought to tender an expert report of Dr Monica Gandhi, a professor of medicine at the University of California, San Francisco, expressing opinions with respect to risks of infection by COVID-19 and the scientific evidence for "outdoor transmission". Senior counsel for the plaintiffs conceded that the only material difference between Dr Gandhi's report and the opinions expressed by Dr Jeremy McAnulty, who was, from late January 2020 until May 2022, Deputy Public Health Controller for the COVID-19 response, was the degree of risk in attending outdoor events, and the likely success of seeking to control outdoor crowds. Two affidavits affirmed by Dr McAnulty had been filed by the State. However, consistently with his objection to the evidence of the plaintiffs, the Solicitor-General did not seek to read Dr McAnulty's affidavits.
4. The fact that the plaintiffs had been charged with offences arising out of their non-compliance with the relevant Public Health Orders may have provided a basis for demonstrating standing to bring the present proceedings. However, the State conceded that each had standing. The nature of the charges was otherwise relevant to identify the impugned provisions and to confirm that the law enforcement officers had acted on the basis that those provisions covered what might be described as "expressive conduct" by political protest, namely opposition to the restrictions on movement imposed by the Public Health Orders themselves.

First issue - construing the impugned legislation

1. It is well established that, in determining whether legislation creating an offence is invalid as an unconstitutional restriction on freedom of speech, "[t]he first step is to construe the statutory language creating the offence". [6] However, the underlying reason for that approach is important. The implied freedom of political communication is a constitutional constraint on legislative power. It derives from elements of the Commonwealth Constitution providing for a system of representative government through a Parliament "directly chosen by the people". [7] The constraint applies to exercises of legislative power. Thus, if a legislative power properly construed does not impose, nor permit the imposition of, a burden on political communication, the constitutional issue does not arise.
2. Two other matters should be noted in dealing with this issue. First, in common with similar legislation in other jurisdictions, the Interpretation Act 1987 (NSW), s 31(1), provides that an Act should be construed "as operating to the full extent of, but so as not to exceed, the legislative power of Parliament". There is then a "blue pencil" provision, [8] which allows that if to any extent an Act would, but for that section, be construed as being in excess of the legislative power of the Parliament, it shall be valid to the extent to which it is not in excess of that power: s 31(2). There were suggestions in the plaintiffs' written submissions that s 31(2) should be applied at the outset. However, to do that would be to import the constitutional argument into the question of statutory interpretation. While that submission has an element of logical plausibility, to adopt it would be to undermine the purpose of first construing the provision, in order to understand its meaning for the purpose of considering whether it breaches the implied freedom. Rather, as stated in the joint reasons in Wotton v State of Queensland, [9] "if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, such as that in this litigation concerning the conditions attached to the Parole Order, does not raise a constitutional question, as distinct from a question of the exercise of statutory power."
3. Secondly, it will be appropriate, as the State accepted, in construing the statute to apply the principle of statutory construction known as the principle of legality. That principle, which harks back to Chief Justice Marshall in the US Supreme Court, [10] is commonly identified by reference to the statement in Potter v Minahan [11] that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". The plaintiffs identified that principle as engaging a presumption of non-interference with freedom of speech, freedom of association and freedom of movement. In identifying "freedom of speech", the submissions referred to Nationwide News Pty Ltd v Wills, [12] a case involving the implied freedom of political communication.

Second issue - considering only the effect of the Act

1. This issue concerns the second and fourth questions raised by the plaintiffs. The third question involved consideration of whether the statute burdens political communication. The fourth question raises a similar issue as to the operation of the Public Health Orders. The State submitted that the fourth question, which appeared to be at the heart of the plaintiffs' submissions, was not the correct question to ask: the proper question was the third question, concerning the statute itself. The State's submission should be accepted. The reason was concisely stated by the joint reasons in the High Court in The Commonwealth of Australia v AJL20: [16] "43 When the Executive executes a statute of the Commonwealth, as opposed to exercising its common law prerogatives and capacities or whatever authority is inherent in s 61 of the Constitution, the constitutional question is whether the statutory authority conferred on the Executive is within the competence of the Parliament; the statutory question is whether the executive action in question is authorised by the statute. If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises. The question then is whether the executive action in question was authorised by the statute, with that question to be resolved by reference to the statute as a matter of administrative law."
2. A similar statement of principle, derived from earlier High Court authority, was identified by the Court of Appeal in A v Independent Commission Against Corruption, [17] an approach accepted by Gageler J in Comcare v Banerji. [18]
3. Although the principle explained in AJL20 was expressed in relation to legislation of the Commonwealth, the principle had earlier been stated in Wotton, [19] a case involving State law, and applied in Palmer v State of Western Australia, [20] also involving State law.
4. When invited to address the State's submission that the question of invalidity must be addressed in relation to the authorising statute, rather than the subordinate orders, senior counsel for the plaintiffs responded that they relied upon both. [21] The response raised a question, not expressly addressed in submissions, as to whether there were circumstances where it might be appropriate to go beyond the consideration of the authorising legislation in exploring the operation of the implied freedom; that is may there be a qualification on the universal operation of the conventional approach?

Principles for assessing legislative scheme

1. The manner in which the court should approach a challenge to the validity of a law on the basis that it contravenes the implied freedom of political communication was recently summarised by the Court of Appeal in Burton v Director of Public Prosecutions. [29] Kirk JA held that the justification of a law which infringes the implied freedom may, and should, be assessed by reference to principles described as "structured proportionality". [30]
2. There is no dispute that the Public Health Act will, in some circumstances, impose a burden on political communication. The parties differed, however, on the severity of the burden. As explained by Kiefel CJ and Keane J in Farm Transparency International Ltd v New South Wales: [31] "27 The question whether the freedom is burdened has regard to the legal and practical operation of the law. The question is not how it may operate in specific cases, which are but illustrations of its operation, but how the statutory provision affects the freedom more generally."
3. The extent of the burden is relevant in the process of justification. In Farm Transparency Kiefel CJ and Keane J stated: [32] "29 The process of justification commences with the identification of the statutory purpose. That purpose must be compatible with the system of representative government for the provision to be valid. A justification for a burden will only be sufficient if it is shown that the statutory provision is proportionate to the achievement of its purpose …. [P]roportionality has been assessed by reference to whether the impugned provision is suitable, necessary and adequate in its balance."
4. Although some members of the High Court have not applied structured proportionality reasoning, and those that have, have emphasised that it is a "tool" or mechanism for assessing validity, the primary point of departure between that form of analysis and reasoning in earlier cases turns on whether it is appropriate for the Court to ask whether a law which is suitable for the achievement of its purpose and imposes a burden which is "necessary" to achieve the legitimate purpose, should also be assessed by reference to the "adequacy" in the balance achieved between the purpose served by the measure and the extent of the restriction it imposes on the implied freedom. It is neither necessary nor appropriate for this Court to enter into that area of debate.

Public Health Act, section 7 - burden and legitimacy

1. Section 7 of the Public Health Act reads as follows: 7 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. (3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary - (a) to reduce or remove any risk to public health in the area, and (b) to segregate or isolate inhabitants of the area, and (c) to prevent, or conditionally permit, access to the area. (4) An order must be published in the Gazette as soon as practicable after it is made, but failure to do so does not invalidate the order. (5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. … (7) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) any action taken by the Minister under this section other than the giving of a direction by an order under this section, (b) any direction given by any such order.
2. As noted above, there is no dispute that the discretionary power conferred on the Minister by s 7 extends to actions and directions which may (and in this case do) effectively burden political communication. The Public Health Orders, when in operation, limited the opportunity for people to leave their homes and gather in public places for the purpose of protesting governmental action, both legislative and executive, and both in relation to the Public Health Orders themselves and in relation to other matters.
3. As the State noted, the legislative purpose of the Public Health Act, and in particular the purpose of s 7, is usefully stated in the objects set out in s 3: 3 Objects (1) The objects of this Act are as follows - (a) to promote, protect and improve public health, (b) to control the risks to public health, (c) to promote the control of infectious diseases, (d) to prevent the spread of infectious diseases, (e) to recognise the role of local government in protecting public health. (f) to monitor diseases and conditions affecting public health. (2) The protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.

Rational connection

1. In dealing with the question of justification, the first issue to be addressed is whether the law was suitable to achieve its purpose. That is, did the law have a rational connection with its purpose? Although the plaintiffs' submissions correctly identified that issue, they strayed into a generic statement that although the purpose of the Public Health Orders was to protect public health, "there is no rational connection so as to justify a blanket prohibition of public political communications".
2. This proposition both misstated the issue and misdescribed the operation of the statute. The operation and effects of s 7 were described by the Court of Appeal in Kassam v Hazzard [34] in the reasons of the then President and need not be repeated. Conformity with the test of rational connection is demonstrated by the language of s 7. Public health risks may involve a wide variety of circumstances and may require an urgent response interfering with people's freedoms, or a monitoring response with limited adverse effects on individuals. The nature of the issue self-evidently requires conferring a degree of flexibility on those with responsibility to protect public health. The responsibility is vested in the Minister, answerable to the Parliament; but he or she may only act on "reasonable grounds" in determining that a risk has arisen or is likely to arise.
3. Further, while the power to take such steps as the Minister considers necessary involves a subjective judgment on the part of the Minister, the considerations must relate to the risk identified on reasonable grounds and its possible consequences. Further, to the extent that the Minister gives directions, that must be by "order" which must be published in the Gazette and which may operate for no more than 90 days.
4. The section further provides for administrative review by the Civil and Administrative Tribunal in relation to action taken by the Minister under subs (2)(a), and directions given by order under subs (2)(b). The power to review those decisions does not expressly extend to the Minister's determination that there is a relevant risk under subs (1), but the connection between the opinion formed by the Minister under subs (1) and the actions taken under subs (2) suggests that, in a practical sense, the grounds on which the Minister was satisfied that the risk arose are likely to be material to any administrative review.

Necessity for burden on political communication

1. As explained in McCloy v State of New South Wales, [36] the test of "suitability" identified above "does not involve a value judgment about whether the legislature could have approached the matter in a different way". [37] Rather, it is the second stage of the justification dealing with "necessity" which requires the Court to ask whether "other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling" are available. [38] That element was reformulated in Comcare v Banerji [39] in the following terms: "35 Where, as here, a law has a significant purpose consistent with the system of representative and responsible government mandated by the Constitution and it is suitable for the achievement of that purpose in the sense described, such a law is not ordinarily to be regarded as lacking in necessity unless there is an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom."
2. It is clear that this element is not an invitation to the Court to redraft the provision in different terms to demonstrate that it is possible to lessen significantly any burden on political communication. Although it may sound like a similar exercise, the court is to consider only whether some alternative course was open to the parliament but not adopted. The formulation in Banerji suggests that this will not "ordinarily" be the case.
3. This Court was not taken to any examples in other cases where that test had resulted in invalidity. Further, as the State submitted, the plaintiffs had proposed no alternative to s 7 of the Public Health Act. Although the onus on justification is said to lie on the party supporting the law, under the "structured proportionality" approach, there is some onus on the challenger to identify an obvious and compelling alternative that might impose a lesser burden on political communication. [40]
4. One aspect of the plaintiffs' case was that, while outdoor gatherings were generally prohibited, there were exceptions, which included permitting limited numbers of persons to attend outdoor sporting events. At least by implication, the argument was that the Public Health Orders could (and should) also have provided an exception for political protests.

Adequacy of balance

1. The final element in the process of justification requires the Court to determine whether the burden on political communication is undue, having regard to the importance of the purpose served by the impugned legislation.
2. Once it is established that the impugned law serves a legitimate purpose compatible with the constitutional system of government, although imposing some burden on political communication, and that the law is suitable and adapted to achieving its intended purpose, and that there is no reasonably practicable and compelling alternative, there are likely to be few circumstances in which the court would then declare that the burden on political communication was undue. [41] Particularly may that be so where the burden on political communication is neither a purpose of the impugned law nor a necessary consequence in all circumstances.
3. Nevertheless, it is necessary to consider the extent of the restriction. The Solicitor-General noted that, on one view, there was no significant burden on political communication imposed by the Public Health Act. That was because persons wishing to hold a "public assembly", which involved any assembly held in a public place and included a procession, could obtain authority from the Commissioner of Police pursuant to Pt 4 of the Summary Offences Act 1988 (NSW). Section 24 of that Act provides that a person participating in an authorised public assembly "is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place".
4. During 2020, at least three cases came to this Court on applications by the Commissioner of Police to prohibit public gatherings due to the risks created for transmission of COVID-19. [42] In Commissioner of Police v Gray, the relationship between the Public Health Act (and orders under that Act) and the Summary Offences Act was addressed. By a textual analysis, Adamson J concluded that a failure, without reasonable excuse, to comply with a direction given under s 7 of the Public Health Act by attending a public gathering, was an "offence relating to participating in an unlawful assembly" for the purposes of s 24 of the Summary Offences Act. [43] This was understood to be a resolution of the potential inconsistency between s 10 of the Public Health Act and a public assembly authorised under the Summary Offences Act. [44]

Conclusion - Public Health Act

1. For these reasons the plaintiffs' claim for invalidity with respect to the Public Health Act and the orders made under it must be rejected.

Law Enforcement Act

1. Separately from the charges of non-compliance with the Public Health Orders, on 5 September 2020 Mr Tey was charged with an offence under s 199(1) of the Law Enforcement Act. Order 7 in Mr Tey's summons sought a declaration that s 197 of the Law Enforcement Act "may not be exercised in relation to a [Public Health Order] where to do so would prevent, burden or restrict a genuine demonstration or protest as defined in s 200 of [the Law Enforcement Act]".
2. Section 197(1) of the Law Enforcement Act confers power on a police officer to give a direction to a person in a public place if the officer reasonably believes that the person is obstructing others, or traffic, or harassing or intimidating others, amongst other grounds. It does not appear to involve enforcement of a public health order. But, in any event, s 197 appears in Pt 14 of the Law Enforcement Act, which includes s 200. The latter provision relevantly provides: 200 Limitation on exercise police powers under this Part … (2) This Part does not authorise a police officer to give a direction in relation to- (a) an apparently genuine demonstration or protest, or (b) a procession, or (c) an organised assembly, except as provided by subs (3) or (4). The exceptions in subss (3) and (4) are not presently relevant.
3. Whether the direction given was authorised by s 197, read in combination with s 200, is not in issue: that is a matter to be determined by the Local Court. It may also be necessary to determination the relationship between the limitation imposed by s 200 on a direction given by reference to an order under the Public Health Act. However, it follows from the limitation imposed by s 200(2) that the power to give a direction under s 197 cannot validly operate in relation to a demonstration or protest which involves a political communication.
4. It is not necessary to repeat the process set out above in analysing this challenge: because no burden on political communication was demonstrated, the challenge was untenable. The written submissions for the plaintiffs did not attempt to support the challenge.

Orders

1. Each summons named the then Minister for Health as a second defendant. He took no separate part in the proceedings and no order should be made as to his costs, if any.
2. The Court makes the following orders: 1. In relation to the summons filed by Victor Kah-Xu Tey - 1. to the extent that the plaintiff requires an extension of time, time within which to commence the proceeding is extended to 29 October 2021; 2. dismiss the summons; 3. order that the plaintiff pay the costs of the State of New South Wales. 1. In relation to the summons filed by Renee Nicole Altakrity - 1. to the extent that the plaintiff requires an extension of time, time within which to commence the proceeding is extended to 24 January 2022; 2. dismiss the summons; 3. order that the plaintiff pay the costs of the State of New South Wales.

Endnotes

1. [2021] VSC 498; 360 FLR 341.
2. Cotterill v Romanes [2023] VSCA 7 (Emerton P, McLeish and Kennedy JJA) ("Cotterill").
3. (2017) 261 CLR 328; [2017] HCA 43.
4. Brown at [7]-[17].
5. Brown at [32]-[37].
6. Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [2]-[3] (Gleeson CJ); see also at [158] (Gummow and Hayne JJ); [207] (Kirby J); see also Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 at [25] (Bathurst CJ), [56] (Allsop P) and [75] (in my judgment).
7. Constitution, s 7 (Senate), s 24 (House of Representatives).
8. See Harrington v Lowe (1996) 190 CLR 311 at 328; [1996] HCA 8.
9. (2012) 246 CLR 1; [2012] HCA 2 at [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ) (emphasis added).
10. United States v Fisher, 6 US 385, 390; 2 Cranch 358 (1805); see also Minet v Leman (1855) 20 Beav 269 at 278; (1855) 52 ER 606, 610 (Sir John Romilly MR).
11. (1908) 7 CLR 277 at 304 (O'Connor J); [1908] HCA 63.
12. (1992) 177 CLR 1; [1992] HCA 46.
13. (2017) 94 NSWLR 36; [2017] NSWCA 37.
14. (2017) 94 NSWLR 700; [2017] NSWCA 142.
15. Lazarus at [72], referring to Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3] (Gleeson CJ), [158] (Gummow and Hayne JJ), [219]-[221] (Kirby J) and [306] (Heydon J); North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 at [11] (French CJ, Kiefel and Bell JJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [66] (Gageler J).
16. (2021) 273 CLR 43; [2021] HCA 21 (Kiefel CJ, Gageler, Keane and Steward JJ).
17. (2014) 88 NSWLR 240; [2014] NSWCA 414 at [56] (in my judgment, Bathurst CJ at [7] and Ward JA at [149] agreeing); see also Cotterill v Romanes (VSCA) at [63].
18. (2019) 267 CLR 373; [2019] HCA 23 at [51]-[52]; see also at [169] (Edelman J).
19. Wotton at [22] (French CJ, Gummow, Hayne, Crennan and Bell JJ), adopting the submission of then Commonwealth Solicitor General, S Gageler SC.
20. (2021) 272 CLR 505; [2021] HCA 5 at [64]-[65] (Kiefel CJ and Keane J); [118] (Gageler J); [201] (Gordon J).