Wilson v State of Victoria [2026] FCA 443

Wilson v State of Victoria [2026] FCA 443 | Case summary | Zoe

[28]

The sole question raised on this application for leave to appeal concerns the costs orders made by the primary judge following the summary dismissal of the proceeding, which was brought by the applicants against the State of Victoria and the Commonwealth of Australia to challenge the validity of various measures taken in 2021 and 2022 in relation to the rollout of vaccines against the virus that causes COVID-19: Wilson v State of Victoria (Costs) [2024] FCA 1190 (PJ).
The impugned measures included directions and orders issued under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) which precluded employers from permitting a worker (other than an "excepted person") to work outside his or her ordinary place of residence unless he or she was fully vaccinated, together with provisions of the National Health Act 1953 (Cth) that supported the provision of COVID-19 vaccines and treatments.
On 20 February 2023, the primary judge found that the applicants' claims were untenable and gave summary judgment for the respondents under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) on the ground that the applicants had no reasonable prospect of successfully prosecuting the proceeding: Wilson v Victoria [2023] FCA 111 (Summary Judgment).
On 7 March 2023, the primary judge ordered that the applicants pay the costs of Victoria and the Commonwealth fixed in the sum of $30,000 and $20,000 respectively.
The applicants sought leave to appeal from both the Summary Judgment and the subsequent costs orders. On 22 December 2023, the Full Court refused to grant leave to appeal save in respect of the costs orders: Wilson v Victoria [2023] FCAFC 204 (FC). The Full Court allowed the appeal against the costs orders on the ground that the applicants, who had misapprehended that the orders made by the primary judge on 20 February 2023 imposed on them a liability to pay costs with only the quantum to be determined, "were inadvertently denied procedural fairness on the subject of whether they should be subject to any costs liability at all": FC [57]-[58]. The costs orders were set aside, and the proceeding was remitted for costs to be redetermined in the original jurisdiction of the Court.
On 8 August 2024, the applicants were refused special leave to appeal to the High Court from the Full Court's judgment refusing leave to appeal in respect of the summary dismissal of the proceeding: Wilson v Victoria [2024] HCASL 178. The special leave application was made out-of-time. In refusing special leave to appeal, Gleeson and Beech-Jones JJ stated that there was no reason to doubt the correctness of the Full Court's decision, and that it would therefore be futile to grant an extension of time to seek special leave to appeal.
On 15 October 2024, on the remittal to determine costs, the primary judge concluded that the appropriate order was that costs should follow the event: PJ [5], [35]. As the parties had previously reached agreement on the quantum of any costs to be awarded, the primary judge made orders that the applicants pay the costs of Victoria fixed in the sum of $30,000 and the costs of the Commonwealth fixed in the sum of $20,000.
By an amended application for leave to appeal filed on 13 February 2025, the applicants now seek leave to appeal from those costs orders. For the reasons set out below, that application should be dismissed with costs.

[29]

Under r 35.13(a) of the Rules, the applicants were required to file any application for leave to appeal within 14 days after the date on which the orders were made. The application for leave to appeal was filed on 12 November 2024, which is 28 days after the costs orders were made on 15 October 2024. Accordingly, the applicants sought an extension of time to seek leave to appeal under r 35.14 of the Rules.
The applicants relied on an affidavit of Mr Eric Wilson affirmed on 11 November 2024 (First Wilson Affidavit). The principal reasons given by the applicants to explain the delay in filing their application were that they were only informed on 25 October 2024 that the Commonwealth intended to enforce the costs order in its favour, upon which Mr Wilson realised that an appeal would have utility. Mr Wilson also deposed that the applicants were not legally qualified, they had work and family responsibilities, and they had been unable immediately to work on the appeal due to their involvement in unrelated proceedings before the Magistrates' Court of Victoria.
While Victoria did not oppose the application for an extension of time under r 35.14, the Commonwealth submitted that an extension of time should be refused because the applicants had not adequately explained the delay and the proposed grounds of appeal lacked any merit. The Commonwealth submitted that it was the applicants' responsibility to ensure they complied with the applicable time limits under the Rules, and that neither their lack of legal training nor their other commitments justified their failure to bring an application for leave to appeal within time. Further, the Commonwealth submitted that the applicants' liability had arisen upon the making of the costs orders, and was not affected by whether or when the Commonwealth chose to recover its costs pursuant to those orders. The Commonwealth nevertheless conceded that the length of the delay was not significant, and did not rely on any prejudice arising from the grant of an extension of time.
The power to grant an extension of time to seek leave to appeal is discretionary. The discretion is to be exercised by reference to the interests of justice, having regard to relevant matters such as the length of the delay, the explanation for the delay, any prejudice to the respondent or third parties, and the prospects of success on the application for leave to appeal and any appeal.
In the present case, I consider that it is in the interests of justice to grant the applicants an extension of time to seek leave to appeal from the costs orders made by the primary judge on 15 October 2024. The length of the delay is relatively short. The fact that the applicants do not have legal representation is a relevant circumstance to be considered in the exercise of the discretion, although it does not of itself provide a justification for the delay. While the utility of any appeal was not dependent on the respondents taking any action to enforce the costs orders, the position adopted by the applicants must nevertheless be viewed against the background of the observations made by the primary judge that the respondents "might choose to consider the financial position of the applicants when deciding whether to seek recovery of those costs and/or whether to enter into some sort of payment arrangement": J [34]. This may have given rise to some uncertainty, at least in the applicants' minds, as to whether or how the respondents would enforce the costs liability against the applicants. This is not a case in which the applicants have slept on their rights, and the grant of an extension of time will not cause any prejudice to the respondents. The substantive prospects of the proposed grounds of appeal can be addressed in deciding whether or not leave to appeal should be granted.
Accordingly, I will adopt an approach similar to that taken by the Full Court, namely that the preferable course in the circumstances of this particular case is to grant an extension of time and then squarely address whether or not to grant leave to appeal: FC [13].

[30]

Before the primary judge, the parties relied on written submissions in relation to costs that had been filed in the proceeding before the Full Court, together with further written submissions filed by the applicants and submissions in reply filed by Victoria: PJ [4]. The former were filed pursuant to orders made by the Full Court consequent upon granting leave to appeal in respect of the costs orders, and addressed the orders that should be made in the event that the appeal were allowed and the Full Court decided to determine the issue of costs at first instance. However, because the Full Court ultimately remitted the question of what costs orders should be made for determination by the primary judge (FC [61]-[63]), it was unnecessary for the Full Court to address the parties' arguments on the costs of the proceeding at first instance.
To provide context for the application for leave to appeal from the primary judge's decision on costs, it is necessary to identify the issues that were raised by the parties below.
In their written submissions on costs dated 13 November 2023, the applicants contended that the respondents had engaged in "litigation misconduct" that disentitled them to costs. For present purposes, it is unnecessary to set out the full particulars of this contention. The applicants' submissions encompassed complaints about the responses by Victoria and the Commonwealth respectively to the applicants' objections to vaccine mandates; an alleged failure by Victoria to take genuine steps to avoid litigation; an alleged failure by the respondents to draw the applicants' attention to defects in their pleadings which were subsequently raised in the application for summary dismissal; the raising of an unfounded allegation that the applicants were "fabricating federal jurisdiction"; the filing by the respondents of a large volume of material which inflated costs; an alleged failure by the respondents to act in accordance with model litigant principles; an alleged failure to disclose that the Prime Minister had been secretly sworn in as the Minister administering the National Health Act and the Australian Immunisation Register Act 2015 (Cth); and an alleged misrepresentation of the applicants' submissions in relation to an implied constitutional right of privacy.
More generally, the applicants submitted that there should be no order as to the costs at first instance, on the basis that the proceeding was in the public interest and concerned fundamental rights and freedoms, raising questions of general importance concerning Part 8A of the PHW Act and s 51(xxiiiA) of the Commonwealth Constitution.
The Commonwealth filed written submissions dated 7 December 2023, in which it was submitted that the applicants should be ordered to pay their costs fixed in the amount of $20,000 in accordance with the ordinary principle that costs follow the event, under which the respondents were entitled to be compensated for the expense to which they had been put in defending the proceeding. The Commonwealth submitted that the proceeding was not brought in the public interest, and that the claims were neither novel nor a "test case". Rather, the Commonwealth argued that the applicants' claims in relation to ss 51(xxiiiA) and 109 of the Constitution were untenable and precluded by existing authority, referring to Kassam v Hazzard [2021] NSWSC 1320 (upheld in Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 (Kassam CA)) and Knowles v Commonwealth of Australia [2022] FCA 741. The Commonwealth denied that it had engaged in any disentitling conduct as alleged by the applicants.
By its written submissions dated 7 December 2023, Victoria submitted that the Full Court should make orders that the applicants pay their costs of the proceeding at first instance, fixed in the sum of $30,000. Victoria rebutted the applicants' allegations that it had engaged in disentitling conduct, submitting that it had attempted to explain to the applicants the apparent defects in their pleadings and had reserved the right to seek summary dismissal if such defects were not remedied. Victoria denied that it had "inflated" the costs of the proceeding by the volume of evidence filed, describing the applicants' contention to that effect as misconceived, and noting that its evidence had comprised documents referred to in the pleadings that were appropriately put before the Court. It was submitted that there was no general principle that an unsuccessful applicant in a case raising an issue of public interest should avoid an adverse costs order, and that the applicants' contention that their case was of the "widest public importance" could not be accepted in the face of the summary dismissal of the proceeding as wholly without merit.
The applicants filed reply submissions dated 14 December 2023, which repeated and reemphasised the matters raised in their previous submissions in relation to model litigant principles and disentitling conduct.
Before the primary judge, the applicants filed further written submissions dated 20 September 2024. In those submissions, the applicants argued that their case engaged human rights and fundamental freedoms, such that costs should not follow the event. The applicants also raised matters relating to their financial position and capacity to meet any order for costs made against them.
In its reply submissions dated 25 September 2024, Victoria submitted that the Court should award lump sum costs in its favour, on the basis that the applicants' case had no reasonable prospect of success and there were no "special circumstances" to warrant departure from the ordinary rule that costs follow the event. In particular, Victoria submitted that the applicants' impecuniosity was not relevant, and the fact that the applicants alleged that their human rights had been unjustifiably limited had no bearing on the exercise of the discretion to award costs in favour of the respondents. Victoria also disputed the allegation that it had failed to draw the Court's attention to relevant authority concerning the utility of declarations by a superior court that the rights of a litigant had been breached.
The primary judge commenced (at PJ [6]-[13]) by summarising the applicable principles governing the exercise of the discretion in relation to costs, by reference to Hamilton v Meta Platforms, Inc. (Costs) [2023] FCA 1496 at [4]-[9] (Cheeseman J). The applicants do not raise any complaint about the manner in which those principles were stated. The primary judge acknowledged the general position that costs follow the event, while recognising that the court may depart from that general position if there has been some disentitling conduct by the successful party: PJ [9]. The primary judge noted that the court is required to take into account any failure by a party to conduct the proceeding in a way that is consistent with the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: PJ [10], referring to s 37N(4) of the FCA Act. The primary judge accepted that the court can take into account any "legitimate public interest in the importance of the issues resolved": PJ [11]. While the court should make due allowances for the position of litigants in person, this was not itself a ground "for displacing the ordinary result that costs follow the event": PJ [12], quoting Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] (Hodgson CJ in Eq).
As the primary judge stated (at PJ [13]), the question for determination was not whether costs should be awarded on an indemnity basis, but "whether [the applicants] as litigants in person should be subject to the general presumption that costs follow the event".
The primary judge identified (at PJ [14]) four primary issues raised by the applicants' submissions as to why costs should not follow the event:

[32]

While the primary judge accepted that the claims made by the applicants in the proceeding had a public interest element (compare Knowles v Commonwealth of Australia (No 2) [2022] FCA 1003 at [38] (Mortimer J) and Kassam v Hazzard (No 2) [2021] NSWSC 1599 at [11] (Beech-Jones CJ at CL)), her Honour was "not satisfied that of itself the fact that there may be some public interest in understanding whether the kinds of challenges made by [the applicants] were legally arguable of itself justifies a departure from the ordinary rule."
The primary judge found (at PJ [17]) that "the public interest and human rights nature of the claims carries less weight where the claims are found to have no reasonable prospects of success than when arguable claims go to trial and are not successful". In that regard, the primary judge did not accept that the applicants' claims were "entirely novel", noting that the claims based on s 51(xxiiiA) of the Constitution were not materially different from those dismissed in Kassam and Knowles: PJ [18] In so far as the applicants sought to raise novel claims based on an alleged contravention of Imperial Acts (namely, the Magna Carta 1297 (Imp) 25 Edw I c. XXIX, the Monopolies Act 1623-4 (Imp) 21 or 21 and 22 Jac I c. III ss 1 and 6, or the Confirmation of Liberties Act 1405-6 (Imp) 7 Henry IV c. I), such claims were found to be "untenable and misconceived" : PJ [18]. Thus, the primary judge found that the proceedings had been "continued, in the face of the summary dismissal application, despite the existence of a number of unsuccessful challenges which shared some features in common with the way the causes of action and contentions were put in this proceeding on behalf of the applicants (see Knowles at [49])": PJ [18].
The primary judge did not accept the applicants' argument that their claims were not completely untenable. The claims were found to have no reasonable prospect of success, and the primary judge was satisfied that this was a matter that pointed strongly in favour of the "ordinary rule" (i.e. that costs should follow the event): PJ [20]-[21].
The primary judge was not satisfied that the Commonwealth had engaged in "disentitling conduct": PJ [22]-[25]. In circumstances where the respondents complied with orders requiring them to advise the applicants of the defects in their claims, her Honour found that it was "difficult to understand what was to be achieved" by the filing of a genuine steps statement: PJ [23]. Further, it was not apparent how any alleged failure by the Commonwealth to disclose "who was in effective control of pandemic management due to 'secretive' 'National Cabinet' ministries" was capable of improving the strength of the legal propositions advanced by the applicants in support of their claims: PJ [24]. The primary judge was not satisfied that the Commonwealth had failed properly to address the applicants' submissions concerning human rights breaches or otherwise to meet its obligations as a model litigant: PJ [25].
Similarly, the primary judge was not satisfied that the State had engaged in disentitling conduct, either by failing to take genuine steps to resolve the dispute or by failing to draw the Court's attention to relevant judicial authorities or to point out distinguishing facts in those authorities: PJ [26]-[28]. The primary judge found that "none of the authorities referred to by the applicants nor the bases on which they contend those authorities ought to be distinguished advance the applicants' claims": PJ [28].
The primary judge found that the respondents had not acted unfairly or abused the processes of the Court by providing copies of documents referred to in the pleadings. Referring to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [15] (Black CJ, Beaumont and French JJ), the primary judge was not satisfied that any conduct on the part of the respondents resulted in the proceedings being prolonged or that they had otherwise failed to act in accordance with the overarching purpose embodied in s 37M of the FCA Act: PJ [30]-[31].
The primary judge accepted that the payment of costs would imperil the applicants' ability to retain their family home and was likely to inflict harm on their financial security: PJ [32]. However, the primary judge noted that impecuniosity was not of itself a basis to deprive the respondents of their costs: see Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [27].

[33]

In support of their application for leave to appeal (and for an extension of time), the applicants relied on the First Wilson Affidavit and a further affidavit of Mr Wilson affirmed 10 April 2025 (Second Wilson Affidavit).
The First Wilson Affidavit addresses matters relevant to the application for an extension of time to seek leave to appeal, which I have dealt with above.
The Second Wilson Affidavit addresses a miscellany of matters including the background to the remittal from the Full Court; the fact that two of the judges who constituted the Full Court held commissions as members of the Defence Force Discipline Appeal Tribunal and had served as reservists in the Australian Defence Force; an email from the Victorian Government Solicitor's Office in relation to the applicants' pleading; a copy of the "Victorian Model Litigant Guidelines"; the appointment of the Prime Minister to portfolios other than the Department of the Prime Minister and Cabinet; and an email from the associate to the primary judge prior to the hearing of the summary dismissal application in which the parties were requested to consider issues relating to the utility of the proceedings.
Victoria objected to the admission into evidence of the Second Wilson Affidavit on the basis that it would not be admissible on the appeal, and that no explanation had been provided for the applicants' failure to adduce such evidence before the primary judge on the remittal. However, as I am dealing only with the application for leave to appeal, I have proceeded on the basis that the Second Wilson Affidavit is admissible at least for the purposes of establishing the evidence on which the applicants will seek to rely in the proposed appeal. It would remain a question for the Full Court to rule on the admissibility of that evidence in the appeal if leave were to be granted. Nevertheless, this may be a factor in determining the weight to be given to the Second Wilson Affidavit on the present application, and in assessing the prospects of success of any appeal.
The proposed grounds of appeal are set out in an amended draft notice of appeal dated 9 April 2025. They are prolix in nature and difficult to summarise in any succinct fashion. Accordingly, each of the grounds is reproduced in full later in these reasons. Without limiting the matters raised by those grounds, they include:

[34]

(a) by Ground 1, the applicants contend that the Full Court's decision was affected by apprehended bias arising from the "affiliation" of Logan and Perry JJ with the Australian Defence Force, and that the Full Court failed to consider aspects of the applicants' arguments, such that there was no "event" in relation to which costs should be awarded against the applicants, and the conclusion by the primary judge that costs should follow the event was therefore "unfounded";

(b) by Ground 2, the applicants contend that the primary judge erred by giving "less weight" to the public interest and human rights nature of their claims, and misunderstood the context of the litigation;

(c) by Ground 3, the applicants contend that the primary judge overlooked the Commonwealth's disentitling conduct in failing to disclose the "secretive ministries of the Prime Minister", which affected the applicants' pleading of the Commonwealth's involvement and gave rise to uncertainty that should have precluded summary dismissal of the applicants' case;

(d) by Ground 4, the applicants contend that the primary judge erred by overlooking or failing properly to consider the respondents' obligations as model litigants, including by failing to inform the Court of relevant matters or by misrepresenting aspects of the applicants' case;

(e) by Ground 5, the applicants contend that the primary judge misunderstood the bases on which they challenged the validity of the impugned measures under s 51(xxiiiA) of the Constitution, and erroneously treated those claims as having been previously considered and dismissed in Kassam and Knowles;

(f) by Ground 6, the applicants contend that the primary judge did not consider their pleaded case that the Immunisation Register Act did not support the impugned measures, nor appreciate the novelty of that question;

(g) by Ground 7, the applicants contend that the costs decision was affected by an apprehension of bias or "circular reasoning", in that the disentitling conduct and other matters raised by the applicants undermined the substantive judgment to dismiss the proceeding summarily.

[39]

In considering whether or not to grant leave to appeal, I am conscious that a refusal to grant leave would involve an exercise of the appellate jurisdiction of the Court and would therefore not be amenable to appeal to the Full Court: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431-432 (Bowen CJ, Lockhart and Sheppard JJ); Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [109]-[112] (Allsop CJ, Markovic and Colvin JJ). Nor would any appeal lie to the High Court: FCA Act, ss 25(2)(a), 33(4B)(a).
Before addressing each of the proposed grounds of appeal, the following observations may be made about the decision below.
The award of costs was in the discretion of the primary judge: FCA Act, s 43(2). The discretion in relation to costs must be exercised judicially, having regard to relevant considerations and facts connected with the proceeding: Sangare at [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). The exercise of the discretion is guided by settled principles, including that costs are generally awarded in favour of the successful party unless such an outcome is modified or displaced by the conduct of that party or by some other relevant factor that justifies a different outcome: Sangare at [25]; see also Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53; (2015) 90 ALJR 270 at [6] (French CJ, Kiefel, Nettle and Gordon JJ); Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; (2015) 236 FCR 370 at [18] (Dowsett, Middleton and Gilmour JJ); Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 at [61] (Colvin and Horan JJ). Nevertheless, this is a guiding principle rather than a rule, and the court's discretion remains unconfined.
The primary judge was cognisant of the nature of the discretion to award costs and the principles that guided its exercise: PJ [6]-[13]. This included the potential relevance of "disentitling conduct" by the successful party, any legitimate public interest in the importance of the issues to be resolved in the proceeding, and the position of litigants in person: PJ [9]-[12].
The primary judge's reasons addressed each of the issues that were raised by the parties' submissions. These included the human rights and public interest aspects of the proceeding, the applicants' prospects of success, the allegations that the respondents had engaged in disentitling conduct, and the financial hardship faced by the applicants.
In relation to disentitling conduct, the primary judge rejected the applicants' arguments that the respondents failed to take genuine steps to avoid litigation, or failed properly to address the applicants' submissions or to draw the Court's attention to relevant authorities, or acted improperly by filing a large volume of material, or otherwise failed to act in accordance with the overarching purpose of the civil practice and procedure provisions. In particular, the primary judge addressed the argument regarding an alleged failure by the Commonwealth to disclose "secretive" ministries or the role of National Cabinet in the control and management of the response to the COVID-19 pandemic, and concluded that it was not apparent how such matters could have improved the strength of the applicants' case: PJ [24].
In such circumstances, it is difficult to identify any error in principle affecting the primary judge's decision, nor any material consideration that was not taken into account, nor any extraneous or irrelevant matter that affected the exercise of the discretion. Nor does it appear that the primary judge's decision was based on any mistake as to the relevant facts. The applicants do not submit that the cost orders are so unreasonable or plainly unjust that error in the exercise of discretion can be inferred from the result.
It was appropriate for the primary judge to exercise the discretion to award costs by reference to the outcome of the litigation, namely, that summary judgment had been given on the basis that the applicants had no reasonable prospect of successfully prosecuting the proceeding, and that the Full Court had refused to grant leave to appeal from the summary dismissal of the proceeding. In refusing leave to appeal, the Full Court specifically agreed with the reasons given by the primary judge for ordering summary judgment: FC [26]. In refusing special leave to appeal, the High Court saw no reason to doubt the correctness of the Full Court's decision.
Irrespective of the potential application of principles of res judicata or issue estoppel, it is not appropriate for the applicants to attempt to challenge or to go behind either the Summary Judgment or the Full Court's decision in support of an argument that the respondents should not have been awarded costs. The present application is for leave to appeal from the costs decision, and the applicants must establish an error by the primary judge in making that decision. In that sense, the Summary Judgment and the Full Court's judgment "are now the unchallengeable authorities on the issues they decided" and are not open to collateral attack: compare Quall v Northern Territory [2009] FCAFC 157; (2009) 180 FCR 528 at [31] (Moore, Lindgren and Stone JJ).
In particular, it is not appropriate for the applicants to reagitate matters that were unsuccessfully raised in their application to the Full Court for leave to appeal from the Summary Judgment. Nor is it appropriate for the applicants in this context to impugn the jurisdiction of the Full Court to hear and determine their application for leave to appeal by alleging apprehended bias on the part of one or more of the judges.
Nevertheless, it must be acknowledged that the determination of costs was remitted by the Full Court for determination in the original jurisdiction, in circumstances where the applicants wished to allege that there was disentitling conduct on the part of the respondents which would justify departing from the ordinary rule that costs should follow the event: FC [62]. The Full Court considered that the primary judge was better placed to determine whether there was any substance in those allegations, given that her Honour had the "ongoing case management responsibility in the original jurisdiction proceedings": ibid.
Against that background, the applicants' proposed grounds of appeal can be considered in order to determine whether there is sufficient doubt attending the costs decision to warrant its reconsideration.

[42]

(a) Their Honours Justices Logan and Perry didn't discuss our options about their affiliation as Officers of the Defence Force at the hearing of leave to appeal; Their Honours should have because the Defence Force's role was in issue (and nominally a senior Officer's) in the Global Clinical Trial / Jab Rollout, in connection with: > > 1. Their Honour's denial that the matter involved or enlivened federal jurisdiction; and > 2. the validity of Defence Force activity (ASoC 21(b)(ii), 24, 52, 52(c)(ii)) conducted under s 51(xxiiiA) of the Constitution and/or Schedule 1 of the National Health (COVID-19) Amendment 2021 (Cth) or provisions like Schedule 1; > 3. the breadth of freedom from medical civil conscription under s 51(xxiiiA), what is "medical" and not, the right of freedom of belief and full free and informed consent to any medical treatment or experimentation under ss 10(c) & 14 of the Charter: regarding which military officers will likely be more tolerant of government orders - so that coercion to join the Global Clinical Trial / Jab Rollout on pain of denial of livelihoods was said merely to be "an incentive to undertake vaccination" at [40] despite contrary jurisprudence and evidence. > > (b) There being assigned two military officers was a defining feature of the disposition of the three-judge Court; > > (c) Wherein the application for leave to appeal was watered down to an "impressionistic level" judgment, as if we were asking for an extension of time (Wilson [2023] FCAFC 204 at [16-17]) so that we were not taken seriously - e.g: > > > (i) the reporting of the Minister's conferred power was carelessly conflated with the breadth of that power at [47] to defeat our human rights; > > > > (ii) evidence and arguement showing the enlivenment of pandemic management powers contrary to the appeal judgement at [37, 53 & 55]; > > > > (iii) So the effect of the Prime Minister's secret ministries upon our case was not considered. > > > > (iv) Federal Fair Work Ombudsman's powers of authorisation of the mandated use of Commonwealth Global Clinical Trial / Jab Rollout provisions, as prompted by the Prime Minister; > > > > (v) that the appeal judgement at [41] mischaracterised our case, and the contents of paragraph 5 below are referrred to and set out here in full. > > (d) The above creates an apprehension of bias, including a predisposition towards acceptance of government orders, rendering the refusal to grant leave a non-judicial outcome; > > (e) Being non-judicial, no event occurred regarding the final judgment of our application to the Full Court, meaning the present costs order did not follow an event of costs "thrown away" at [20] irrelevant as that mat be, as leave may have been granted after proper consideration.

[45]

a) The context of the litigation was misunderstood:

The Commonwealth legislation we complained of lapsed. But there was no dispute our human rights were enlivened by the Global Clinical Trial / Jab Rollout. This was not the case with Knowles that was cited at [17] to give our human rights less weight in relation to costs, where there was no lapsing and no enlivenment claimed. This was not considered.

The lapsing outcome was not part of the Respondents' case until introduced by the primary judge before the hearing, and the Respondents gave no notice of their position beforehand in response to our written submissions; thus paragraphs [18] and [20] of the costs judgment, concluding we should have discontinued the action, is out of context and unfair;

Persuant to the costs judgment at [15-16], there was great public interest in testing the Minister's power to make orders under new legislation in Part 8A of the Public Health and Wellbeing Act 2008 (Vic), or whether the content of such orders, were subject to the Charter. This consideration was missed at [19].

b) The Court's function of equality before the law is still enlivened (Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [155]) under s 6(2)(b) and 8(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) by virtue of s 79(1) of the Judiciary Act 1903 (Cth); in the present case informing s 43(1) of the Federal Court of Australia Act 1976 (Cth) as to costs.

c) Charter rights are promoted and protected in Victoria (Charter 1(2)(a)-(c), 7(1)), so human rights aspects are weighty considerations concerning costs, as set out by the U.N. Human Rights Committee's General Comment No. 32 (2007) paragraph 11, by virtue of s 32(2) of the Charter. They should not have been discounted.

d) The costs judgment at [9] erred by not appyling Oshlack's policy at [68] as satisfied by s 39(1) & (3) of the Charter, making it reasonable to except Charter matters from the usual orders per [67] where appropriate - e.g. Bare v Small [2013] VSCA 204 at [47].

e) The costs judgment at [18] failed to consider that the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Public Health and Wellbeing Act 2008 (Vic), had not been litigated before regarding the Global Clinical Trial / Jab Rollout, nor the fundamental freedoms under the Imperial Acts in any State or Territory; and gave no reasons why the expressly guided Victorian health legislation should be treated like the unguided legislation of other States. The notion that other challenges "shared some features in common" in non-enacted human rights cases was not relevant, and should not have counted against us.

f) The costs judgement at [26] failed to consider any limitation of Charter rights must be demonstratably justified under s 7(2), making disclosing those justifications a genuine step to avoid litigation. The First Respondent having failed this obligation, made litigatation over rules denying our liviihoods if we didn't agree to take the Commonwealth's experimental injectibles, all but inevitable. It should not be compensated for its costs on this basis.

[47]

It is not easy to unpick the multiple strands of argument sought to be raised by proposed ground 2. They include the utility of the relief sought by the applicants despite the "lapsing" of relevant provisions in the National Health Act and the ongoing public importance of the issues raised by the applicants' challenge to measures that had been taken by Victoria under the PHW Act, which had not previously been litigated. These matters are relied on as part of the "context" of the litigation that is alleged to have been misunderstood by the primary judge when she was weighing the "public interest and human rights nature" of the applicants' claims. More generally, the applicants allege that cases involving human rights (including under the Charter of Human Rights and Responsibilities Act 2006 (Vic)) should be regarded as an exception to the principle that costs usually follow the event, or that greater weight ought to be given to human rights considerations in the exercise of the discretion to award costs.
The weight to be given to human rights or to the public interest was a matter for the primary judge. There is nothing to suggest that the primary judge misunderstood the context of the proceeding, including questions relating to the utility of the relief sought by the applicants. In giving summary judgment against the applicants, the primary judge specifically addressed the status of the relevant provisions of the National Health Act, and was not satisfied that there was any justiciable controversy against the Commonwealth: Summary Judgment at [31]-[41]. The Full Court reached the same conclusion: FC [31]-[33]. The primary judge accepted that there was a justiciable controversy between the applicants and Victoria, but rejected as untenable each of the grounds of their challenge to the directions and orders under the PHW Act.
In so far as the applicants argue that the "lapsing outcome" in relation to the National Health Act did not form part of the respondents' case and was only raised by the Court in advance of the hearing, this did not itself have any bearing on the outcome of the proceeding. There were fundamental flaws in the applicants' claims which were incapable of being fixed by pleading amendments: Summary Judgment at [118]; see also FC [52]. The respondents were not responsible for those flaws, which cannot be attributed to any disentitling conduct on the part of the respondents.
It is readily apparent that the primary judge had regard to the impact of the impugned measures on human rights and the public interest in testing the legal validity of those measures. In this context, it was open to the primary judge to take into account that the applicants' claims had been summarily dismissed as having no reasonable prospect of success. This includes those aspects of the applicants' claims that were "not entirely novel", on the basis of similarities with claims that had been raised and dismissed in previous proceedings, or that were otherwise found to be "untenable and misconceived". The primary judge nevertheless implicitly accepted and took into account the public interest in testing the validity of the impugned measures (i.e. accepting that "there may be some public interest in understanding whether the kinds of challenges made by [the applicants] were legally arguable"), but did not regard that consideration as itself sufficient to displace the general approach that costs should follow the event.
There is no rule or principle that costs should not be awarded against an unsuccessful party in proceedings that involve human rights or raise issues of public interest. In particular, the nature and strength of the claims advanced in the litigation is relevant to the exercise of the discretion in relation to costs: see, e.g., Knowles (No 2) at [12]-[15] (Beech-Jones CJ at CL). In the present case, the reasons of the primary judge in relation to human rights and public interest considerations do not disclose any appealable error.

[55]

a) Regarding Ground 2, the Second Respondent had a model litigant obligation of fairness to inform us of the Prime Minister's conduct or in time to allow modification of our pleading (Parkesbourne-Mummel Landscape Guardians Inc v Minister for Planning and Ors [2009] NSWLEC 155 (24 September 2009) at 48-55) to better address Federal jurisdiction. Instead, it acted unfairly by seeking summarily to have our statement of claim struck out or dismissed. This was dis-entitling as to costs similar to that of the Minister's non-disclosure in Parkesbourne-Mummel Landscape Guardians. > > b) The costs judgment failed to consider the parties were on notice to inform the Court of the effect of the lapsing of pandemic measures, including upon jurisdiction. At the hearing her Honour also asked the Respondents if how the Charter of Human Rights and Responsibilities Act 2006 (Vic) need be considered. As model litigants, the Respondents were required to exercise "highest professional standard" in providing such information to the Court but did not: > > 1. The First Respondent's barrister did not inform the Court of the First Respondent's previous advocacy regarding the existence of common law damages for acts of the Crown in a pandemic, in a case where he represented the First Respondent. We lost on this utility point, and the Respondent's nondisclosure was not in accordance with Legal Profession Uniform Conduct (Barristers) Rules 2015 at 8 and 23, much less exceed it. > 2. The Respondents did not inform her Honour of Victorian Appellate precedents not supporting the positions taken against us with Kerrison; For Kerrison was based on a reading of the Charter the Court of Appeal does not follow; since in Kerrison, s 7(2) was considered interpretative making the Charter too broad to regulate delegated legislation. We aligned with the Court of Appeal's view, that 7(2) is irrelevant to interpretation, but our point was not heeded, for the Appellate Court's jurisprudence was not disclosed. So the Respondents failed to act diligently and not take advantage of us, as far less-knowledgeable unrepresented litigants (Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [298], Legal Services Directions 2017 (Cth), Appendix B 2(f), Victorian Model Litigant Guidelines 2(j). See also Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [155]) and ss 3 "human rights" and 8 of the Charter.)

[58]

In considering whether there was any disentitling conduct by the respondents, the primary judge was aware of both model litigant obligations (J [25], in relation to the Commonwealth), and the obligation to act in accordance with the overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (J [30]-[31]). The primary judge addressed the applicants' arguments in relation to the alleged failure by the Commonwealth to disclose "secretive" ministries and the alleged failure by Victoria to draw the attention of the Court to relevant judicial authorities or their distinguishing facts: PJ [24], [27]. The primary judge was not satisfied that there was any disentitling conduct by the Commonwealth or Victoria that should result in either of them being denied all or part of their costs.
The applicants submitted that the Commonwealth made submissions to the primary judge that misrepresented the applicants' case in relation to an implied constitutional right of privacy, wrongly suggesting that the applicants were relying on the implied freedom of political communication when they had in fact argued that the implied right was a corollary of the constitutional duty not to interfere with individual liberties without lawful authority: cf. FC [25], proposed ground 8. Nevertheless, the primary judge rejected the claim of an implied right of privacy as unsupported by authority and untenable (PJ [68]), and the Full Court agreed with the primary judge and rejected the proposed ground of appeal in relation to that conclusion: FC [45]-[46]. Again, it is difficult to attribute responsibility for the applicants' lack of success on this issue to any disentitling conduct by the Commonwealth.
The matters sought to be agitated by proposed ground 4 had no substantive merit, and could not have led to a different outcome on the application for summary judgment, nor on the application for leave to appeal to the Full Court.

[59]

Proposed ground 5 contends that the primary judge misunderstood the applicants' challenge to the constitutional validity of the impugned measures under s 51(xxiiiA) of the Constitution.
Proposed ground 5 is as follows (typographical errors in original):
1. Our s 51(xxiiiA) Constitutional challenge included: that the power cannot provide for benefits or services to be coerced upon medically competent persons against medical ethics, which is not a "medical service" but abuse. It was also that Federal authorisation (such as by the Fair Work Ombudsman or Commonwealth Minister) of the civil conscription of workers into a Global Clinical Trial /Jab Rollout provided by the Commonwealth, is prohibited in all forms; regardless of who might do the coercing (be it a State, employers, "a bunch of thugs", whoever). Nothing in Kassam or Knowles analyzed the breadth of these terms "medical" or "authorise" this way. So the costs judgment at [18] did not correspond to our actual case, as stated many times, to which the Respondents never joined issue. Instead, the Commonwealth misrepresented our case. So it was unethical of them to seek their costs as if they had beaten us. Moreover conduct under s 7(2) of the Charter in ASoC 61(a)(i) depended on the legality of such.
As discussed above, similar claims against the Commonwealth based on s 51(xxiiiA) and 109 of the Constitution and the Immunisation Register Act were summarily dismissed as "completely untenable" or "without substance" in Kassam at [286], [293] (Beech-Jones CJ at CL); see also Kassam CA at [31], [38]-[41] (Bell P); Knowles at [107], [114], [115]-[125] (Mortimer J). In so far as the applicants sought to distinguish those authorities and reagitate such claims in the present proceeding, this was rejected both by the primary judge and by the Full Court: Summary Judgment at [58]-[65]; FC [39]-[41]. It was neither necessary nor appropriate for that outcome to be revisited by the primary judge for the purposes of exercising the discretion to award costs on remittal from the Full Court. It is even less appropriate to revisit these questions for the purposes of the present application for leave to appeal from the costs orders made by the primary judge.
Accordingly, it is not apparent that the primary judge's exercise of the discretion to award costs was materially affected by any misunderstanding as to the applicants' case in relation to the validity of the impugned measures under s 51(xxiiiA) of the Constitution.

[60]

Proposed ground 6, which concerns the applicants' arguments about the Immunisation Register Act, is as follows (typographical errors and emphasis in original):
1. Likewise, the costs judgment did not consider at [18] and [19] our pleaded case (ASoC xxxx) that the opt-out in s 11 (see subsection 1 therein, also s 7 para 5) of the Australian Imunisation Register Act 2015 (Cth) was inconsistent with the Second Respondent's Orders that we must opt in to do our work. Nor did So the costs judgment consider failed to appreciate the novelty of the question of whether the purpose of the Australian Imunisation Register Act 2015 (Cth) allowed it to be used as a workplace entry permit at all without the authorisation of Federal parliament (constitutional privacy) if that were possible considering s 13(1)(b). Again, conduct under s 7(2) of the Charter depended on the legality of such. The Respondents should not be awarded costs regarding issues they should have joined.
The applicants' arguments regarding the Immunisation Register Act were raised before the Full Court as a proposed ground of appeal against the Summary Judgment: see proposed grounds 6 and 8(g). The Full Court relevantly held that such arguments could not possibly succeed: FC [42]-[43].
Further, in Kassam, the Supreme Court of New South Wales rejected as "without substance" a challenge to vaccine mandates under public health orders on the ground of inconsistency with the Immunisation Register Act, and this conclusion was not challenged on appeal: Kassam at [291]-[293] (Beech-Jones CJ at CL); Kassam CA at [12]-[13], [31] (Bell P).
Once again, nothing contained in proposed ground 6 is capable of altering the substantive outcome of the application for summary judgment. There is no reason to believe that the primary judge, as the judge who had the "ongoing case management responsibility in the original jurisdiction proceedings", was not fully appraised of the arguments that had been raised in those proceedings. Nothing in proposed ground 6 is capable of raising any appealable error in relation to the exercise of the discretion as to costs.

[65]

The applicants' argument in relation to "circular reasoning" by the primary judge appears to suggest that the matters raised in relation to disentitling conduct were such as to call into question the outcome on the application for summary judgment, such that there was a reasonable apprehension that the primary judge might not resolve the question of costs on its legal and factual merits. In this context, there is a suggestion that it was not open to the primary judge to rely on the Full Court's decision refusing leave to appeal from the Summary Judgment, or that the primary judge failed to appreciate that the Full Court contemplated that costs might not be awarded in favour of the respondents.
Contrary to the applicants' submissions, it was proper for the primary judge to proceed on the basis that the proceeding had been dismissed on the ground that the applicants had no reasonable prospects of success, and that this conclusion had been upheld by the Full Court. The primary judge was not required to revisit the reasoning in her earlier judgment, with which the Full Court had expressly agreed. It was orthodox for the primary judge to exercise the discretion to award costs after having given summary judgment, and the Full Court explicitly contemplated that her Honour was best placed to do so: FC [62]. This was not of itself capable of giving rise to any reasonable apprehension of bias on the part of the primary judge in determining the costs of the proceedings in original jurisdiction: cf. SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [5], [40]-[41], [50] (Gageler CJ and Gleeson J), [72]-[73] (Gordon J), [137]-[142], [147] (Jagot J), [172], [193]-[194], [197], [199] (Beech-Jones J).
In so far as the applicants take issue with the primary judge's reference to "the applicants' lack of legal training" (PJ [28]), that observation was made in the context of identifying the cause of any "unfairness" perceived by the applicants in litigating their claims, which arose from the inherent asymmetry between the parties rather than from any unfair conduct engaged in by the respondents. This does not evidence any failure by the primary judge to afford the applicants a proper hearing on the question of costs.
The applicants also criticized the primary judge's decision as "conclusory" and unsupported by judicial reasoning. In my view, that submission cannot be accepted. The primary judge properly identified and addressed all of the issues raised by the parties' submissions, and gave considered reasons for concluding that the appropriate order was that costs should follow the event.

At a glance

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Judgment (71 paragraphs)

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Legislation Cited (9)

Cases Cited (13)