By Summons filed on 29 October 2021, the plaintiff challenges, in various ways, the validity of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 and the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021. The grounds include that the orders are ultra vires the provisions of the Public Health Act 2010 (NSW) under which they were purported to be made, and also that they are invalid because they offend the implied freedom of political communication under the Constitution of the Commonwealth, which it is said extend to a right to protest.
The important matrix of the application I have heard this afternoon is that on the evidence before me, the plaintiff is facing prosecution under three Court Attendance Notices issued in respect of his alleged attendance and failure to move on, on the one hand, and his alleged attendance, on the other, at protests against the lockdown measures instituted by the Government of New South Wales, including the orders I have referred to, to manage what is referred to as the Delta outbreak of the Coronavirus pandemic. Those matters are listed for hearing in the Local Court at Burwood tomorrow, 4 November 2021, and on Friday, 5 November 2021.
The evidence before me indicates that the proceedings in this Court were commenced late because the plaintiff was not in a position to fund them until, apparently, the necessary wherewithal was raised by a means of crowdfunding.
Once these proceedings were instituted last week, an application was made to vacate the Local Court hearing date to which the officer-in-charge of the police investigation consented. The ground for the proposed adjournment was principally that the plaintiff, the defendant in the Local Court, relied upon legal rather than factual matters, when the application was lodged, it was his intention to file "civil proceedings in the Supreme Court of New South Wales... seeking declaratory relief in relation to several questions of law". It was said that those questions involved statutory construction and constitutional interpretation concerning the implied freedom of communication.
The matter was apparently considered in chambers by the learned magistrate, and on 2 November 2021, a Local Court official notified the plaintiff's solicitor of the magistrate's decision in the following terms:
"The magistrate has refused your application to vacate the above hearing date.
The matter remains listed for hearing on 4 and 5 November 2021, not in the interests of justice to vacate. Previously not reached. Supreme Court proceedings only just filed." (Sic.)
By an Amended Notice of Motion, which I granted leave to file in court today, the plaintiff seeks relief in the form of an order staying the Local Court proceedings pending further order of this Court and vacating the hearing for 4 and 5 November, as I have outlined. Mr Bennett, of counsel, appears for the plaintiff and Ms McEwen, of counsel, appears for the first to third respondents, being the State of New South Wales, the Minister for Health and the Commissioner for Police. The fourth respondent is the Local Court of New South Wales which Ms McEwen informs me will be filing a submitting appearance, in accordance with the usual practice.
So far as the respondents are concerned, the State and the Commissioner for Police oppose the relief sought. The Minister does not wish to be heard in relation to it. I should say here that, as I have said, the officer-in-charge of the prosecution consented to the adjournment, however, the Commissioner does not consent to the orders sought in this Court. I accept that the consent of the police officer in the Local Court is of some relevance, but I also accept that it is of limited weight given the attitude of the Commissioner in this Court, having regard to the different relief sought. There is a real difference between a party, on the one hand, consenting to an adjournment in the lower court, subject to the exercise of the court's discretion and opposing different relief sought after the lower court refused that adjournment, on the other.
It is perhaps important to point out that although the relief sought in the summons is a public law matter involving a consideration of administrative law concepts, there is no application, as it were, for an order in the nature of certiorari quashing the magistrate's decision on the ground of legal unreasonableness or other jurisdictional error. Rather, the powers of this Court are invoked on other grounds not impugning the magistrates decision at all.
Mr Bennett, in answer to a question I put to him, does not accept that the relief sought in the motion in substance may be characterised as an interlocutory injunction in aid of the principal proceedings. He submitted that the relief sought in the nature of a stay, including consequential relief vacating the hearing date, is of a different nature. He submitted that the exercise of the Court's power is not governed or informed by the decision of Mason ACJ, as the Chief Justice then was, in Castlemaine Tooheys Limited & Ors v South Australia (1986) 161 CLR 148 ("Castlemaine Tooheys"). He emphasised that the matter exciting the exercise of the Court's jurisdiction was the risk of inconsistent findings in the Local Court, in the criminal proceedings and in this Court in the final determination of the civil public law proceedings.
I have outlined that, although the adjournment application before the magistrate invoked the implied constitutional freedom, and that is also a matter which forms a ground for the declaratory relief sought in this Court, no notices as yet have been issued under s 78B of the Judiciary Act 1903 (Cth). That matter is not irrelevant because the procedures stipulated by that provision would have enabled the Local Court to make orders in the interests of justice that would accommodate different aspects of the case. Having said that, I acknowledge the statement in the grounds for the adjournment that there is unlikely to be any real issue of fact and that the real dispute in the Local Court relates to the question of validity of the Public Health Orders.
To my mind, it should be borne in mind that the Local Court is a court of record, and it is competent to determine the legal questions posed in the exercise of its criminal jurisdiction. I accept that this Court, as the constitutional court for the State of New South Wales, may be in a superior position to determine these questions, but that is not determinative of the matter.
It is also relevant, to me anyway, that although the plaintiff's rights are at risk given a prosecution may result in criminal responsibility being imposed, there is no real risk to his liberty in terms of a custodial sentence. Such a matter just does not arise under the legislation and his liberty in that sense is not under threat.
Mr Bennett, by reference principally to the judgment of Beazley P in Commissioner of Corrective Services v Liristis [2018] NSWCA 143, submits that this Court has ample power to grant the relief sought in its inherent jurisdiction as expressed by the terms of s 23 of the Supreme Court Act 1970 (NSW). He gave me different examples of the types of matters where that power has been exercised to order a stay of proceedings in different situations. Counsel also submitted that it was a matter of some significance that should the Local Court prosecution proceed, the plaintiff may be affected by a conviction unless and until this Court makes contrary declaratory relief, and that is the nature of the potential for inconsistency that he relied upon.
Ms McEwen emphasised that there was no real risk of inconsistent findings on the evidence before me. She submitted that Castlemaine Tooheys governed or informed the exercise of the power invoked, that the police prosecutor's consent should be given no real weight in the exercise of my discretion, and that there was no question of unfairness arising from permitting both sets of proceedings to proceed in the usual way under the control of their respective courts.
For my own part, I regard it as a significant matter for this Court to be asked to interfere with the due administration of criminal justice in another court properly seized of that jurisdiction in a given case. I am of the view that what is sought is, in substance, an interlocutory injunction in aid of this Court's jurisdiction as invoked by the summons. However, this is not a case, frankly, which really gives rise to any question of forum non conveniens or the like, giving rise to a question of inconsistency of outcome.
The Local Court is the appropriate forum for the determination of summary proceedings duly brought. It is, as I have said, a court of record and it has power to determine questions of law subject to this Court's supervisory jurisdiction, and obviously, to the statutory rights of appeal of the parties conferred by the Crimes (Appeal and Review) Act 2001 (NSW). It seems to me that there is no real prospect of inconsistent findings, as Ms McEwen submits.
In Castlemaine Tooheys, Mason ACJ explained that relief of the type sought by the plaintiff in the Amended Notice of Motion was in the nature of an application for the grant of an interlocutory injunction, and (at page 153) his Honour pointed out that the principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration.
His Honour pointed out that three factors are involved, which I summarise:
1. That there is a serious question to be tried in the sense there is a probability the plaintiff will be held entitled to relief;
2. That he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
3. That the balance of convenience favours the granting of an injunction.
However, his Honour, in reviewing authorities in the High Court and overseas, stated a general proposition to which I will refer in a moment. His Honour's analysis of authorities included relevant Canadian authorities with reference to the judgment of Linden J in Morgentaler v Ackroyd [1983] 42 OR (2d) 659 at 668.
Linden J said that the balance of convenience normally dictates that those who challenge the constitutional validity of laws must obey those laws pending the court's decision. Having made some comments about whether everything Linden J said was applicable in Australia, Mason ACJ said:
"In the absence of compelling grounds, it is the duty of the Court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires".
This might be regarded as a presumption of validity affecting Acts of Parliament and subordinate legislation apparently regularly made. His Honour continued:
"In the ordinary course of affairs the courts should hesitate before interfering with the Executive Government's discretion to decide whether it should prosecute for offences against a statute, even a statute which is under constitutional challenge, more particularly when the statute is designed to protect and safeguard a recognisable public interest, such as the environment".
I interpolate that there is at least an equivalent, or equivalently important, public interest in safeguarding public health in times of pandemic, as there is in protecting the environment.
Mason ACJ said that generally speaking, the balance of convenience will favour allowing the law to take its course, and in my judgment, that statement of principle is applicable in this case.
I should say that his Honour made other observations which should be referred to. He stated that it is perhaps undesirable that prosecutions should be commenced while the validity of the legislation is under challenge in proceedings pending in the High Court. That is not this case, and even if there is an analogy, as the learned magistrate pointed out, the prosecution had been on foot for some time before the proceedings in this Court were commenced.
His Honour also observed that there may be circumstances not readily foreseen by the court which would justify the commencement of prosecutions, in which event they would ordinarily be adjourned pending the determination of validity. However, I understand that dictum to relate to prosecutions commenced after proceedings challenging validity had been commenced. For instance, there may be, as there are undoubtedly here, time limits for bringing summary prosecutions.
It is important also to point out that, factually, his Honour held that the balance of convenience did not favour granting the injunction sought by Castlemaine Tooheys, in part because the injunction was sought at the last moment rather than at the first available opportunity. That observation as to relevant considerations is applicable here. Normally this Court would deal with the summons filed by the plaintiff with such degree of expedition as was available having regard to the Court's other commitments. I note, however, that there is a proposal to amend the summons to join a number of other plaintiffs to them, and it may well be, I am unsure, that the plaintiff is not quite ready to proceed in this Court.
Another factor which informs my discretion is the availability of the s 78B procedure, which has not yet been invoked. That it has not been invoked is another factor informing my decision about the balance of convenience.
For these reasons, I am not persuaded that the plaintiff has discharged the onus falling upon him to obtain the relief sought in the amended notice of motion, and for that reason my order is that the amended notice of motion filed in court today is dismissed.
I order that the first defendant's costs of the amended notice of motion are costs in the cause.
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Decision last updated: 04 November 2021