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Plaintiffs Oppose Vaccination Directions Issued by Defendants

Harding v Sutton (No 2) [2021] VSC 789 (29 November 2021)

Directions were made under s 65H, Civil Procedure Act 2010 (Vic) based on assumptions on expert evidence and questions to be addressed by expert evidence.  The parties dispute whether the power in s 65H(1) to make directions permits the Court to determine questions for expert witnesses.  The Court, in ruling on this case, assessed the limited scope for expert evidence in judicial review proceedings and the assumptions on which experts’ opinions are to be based. 

Facts:

Simon Harding and 128 other plaintiffs seek judicial review remedies in relation to a number of directions given by the defendants in the exercise of their emergency powers under s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic).  The directions all concern mandatory vaccination against the COVID-19 virus (Vaccination Directions), and were given by the defendants between 7 September and 5 November 2021.  

On 23 November 2021, the Court made directions under s 65H, Civil Procedure Act 2010 (Vic) as to assumptions on which expert evidence to be based, and questions to be addressed by expert evidence.  The proceeding commenced on 21 October 2021, and a first directions hearing took place on 27 October 2021.  Expert evidence was one of a number of matters on which directions were sought.  The plaintiffs simply sought directions for the filing and service of expert evidence, while the defendants sought a direction that the plaintiffs file and serve a document stating the identity and expertise of the experts, the questions that each expert would be asked to address, the facts, documents and assumptions with which each expert would be briefed, and the ground (or sub-ground) of review to which the evidence is said to be relevant.

At the end of the discussion about expert evidence, the Court ordered the plaintiffs to file and serve on the defendants a document that states, with precision the identity of any expert; the area of expertise of each expert; the questions that each expert will be asked to address; and identification of the ground (or sub-ground) of the amended originating motion to which the expert evidence is said to be relevant, together with a draft letter of instruction to each expert. 

On 29 October 2021, the plaintiffs filed draft letters of instruction to three expert witnesses: Professor Jayanta Bhattacharya, Dr Peter McCullough and Dr Michael Palmer.  The plaintiffs also filed an expert evidence note, which provided details of their proposed experts’ areas of expertise.  The plaintiffs said that the experts will be relevant as to the consideration of Charter rights when the defendants made directions imposing vaccination requirements and in determining whether the Impugned Emergency Directions are found to be reasonably necessary to protect public health for the purposes of s 200(1)(d) of the Public Health and Wellbeing Act 2008 (Vic) and, therefore, whether each Defendant acted outside their power. 

Issue:

I. Whether or not the power in s 65H(1) to make directions permits the Court to determine questions for expert witnesses.

II. Whether or not experts should be asked general questions about the proportionality of directions under review.

III. Whether or not the evidence of an opinion as to proportionality is probative of a fact in issue in the proceeding.

Applicable law:

Civil Procedure Act 2010 (Vic) - obliges a party that intends to adduce expert evidence at trial to seek direction from the Court as soon as practicable.

Civil Procedure Act 2010 (Vic) s 65H -  enables the Court to give directions in relation to expert evidence. 

Evidence Act 2008 (Vic), s 80(a) - provides that evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue.

Fonterra Brands Australia Pty Ltd v Bega Cheese Ltd (No 5) [2020] VSC 72 -explains why a party wishing to adduce expert evidence must first obtain directions from the Court, in order to enhance the probative value of the evidence and reduce the scope for disputation as to its admissibility and weight.

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 - relied upon by the Court in doubting that s 80(a) of the Evidence Act displaces the ‘fundamental common law principle which excludes expert legal opinion evidence as intruding upon the essential judicial function and duty’ to determine the ultimate issue for decision.

Arnotts Limited v Trade Practices Commission [1990] FCA 473(1990) 24 FCR 313 - provides that 'an expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law’.

Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707(2005) 148 FCR 446 - provides that the parties do not have ‘open slather, in cases of judicial review, to lead any evidence that may be thought to impugn, or support, the merits of the decision at issue’.

PJB v Melbourne Health (Patrick’s Case) [2011] VSC 327(2011) 39 VR 373 - provides that where the decision is claimed to be incompatible with a human right, contrary to s 38(1) of the Charter, the Court’s jurisdiction is supervisory, not substitutionary, and does not involve reconsidering the merits of the decision.

Attorney-General (NSW) v Quin (1990) 170 CLR 1 - provides that it is always necessary in a judicial review proceeding to observe the boundary between judicial review and merits review.

Analysis:

None of the authorities referred to by the plaintiffs in Mr El-Hissi’s letter supports the proposition that the Court cannot or should not make directions about the questions to be answered by expert witnesses, or that the power in s 65H(1) is confined to limiting the issues that may be the subject of expert evidence.  Evidence of any kind is only admissible if it is evidence that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.  An expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law’.   The assumptions set out in the plaintiffs' draft letters of instruction to their expert witnesses did not provide a firm basis for any expert to provide an opinion relevant to the reasonableness or proportionality of the Vaccination Directions given at various times between 7 September and 5 November 2021.  

Conclusion:

The Court concluded that it is a denial of procedural fairness to exercise the Court’s power under s 65H of the Civil Procedure Act so as to maximise the possibility that the expert evidence to be adduced by both sides is relevant, admissible, and directed to the resolution of the real issues in dispute.  The Court held that opinion evidence as to the overall question of proportionality would not be relevant to any fact that the Court has to determine.  

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