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Application for Discovery Opposed by Chief Health Officer

FALCONER -v- CHIEF HEALTH OFFICER [No 2] [2022] WASC 29 (3 February 2022)

The applicant has applied for orders for discovery and for leave to adduce expert evidence.  The respondents opposed orders for discovery and expert evidence.  The Court, in adjudicating this dispute, relied upon the Emergency Management Act 2005 (WA).

Facts:

The applicant has applied for orders for discovery in defined categories and for leave to adduce expert evidence at trial. 

The respondents opposed orders for discovery and expert evidence, and used the appointment listed to hear those applications to again argue that the action should be summarily dismissed. 

The respondents submitted that the proposed trial dates in March cannot be met if the court gives leave for the newly‑filed applications, allows expert evidence and grants the discovery orders sought by the applicant.  It refers to the likelihood of further applications being brought by other groups affected by orders made pursuant to emergency management powers under the Public Health Act 2016 (WA).

The applicant initially filed a single list of proposed categories of discovery for both this matter and his related action against the Commissioner of Police.  The applicant was required to provide further information regarding the proposed expert evidence, including the specific questions to be posed for expert opinion.  The applicant filed a minute regarding evidence proposed to be led from Professor Daniel Salmon of Johns Hopkins University.  The applicant filed an amended application in which he relies on the following grounds:

The Public Health Act 2016 (WA) on its proper construction does not authorise the making of the Direction in that:

  1. The making of the Direction failed to take into account a mandatory relevant consideration, namely, the precautionary principle; and/or
  2. The making of the Direction failed to take into account a mandatory relevant consideration, namely, the principle of proportionality; and/or
  3. The Direction is disproportionate to the stated purpose of the decision maker in making the Direction; and/or
  4. The making of the Direction involved an irrelevant consideration, namely the rights and liabilities of the Second Defendant as an employer of WA Police Force Workers.

Furthermore, the applicant asserts that the Direction is ultra vires the Public Health Act 2016 (WA) in that it is legally irrational.  

The applicant has related the proposed discovery categories to its grounds of application.  Category 1 is directed to the matters which the Chief Health Officer took into account in making the Directions.  Category 2 goes to the extent to which the Chief Health Officer considered making the Directions in pursuit of an employee management goal.  

Issue:

Whether, in the exercise of discretion, having regard to case management principles, orders for discovery should be made.

Applicable law:

Emergency Management Act 2005 (WA) s 190 - provides that the power of the Chief Health Officer is qualified by the requirement that it be exercised for the purposes of emergency management during a public health state of emergency. 

Public Health Act 2016 (WA) - where the criteria that must be met for the Minister to declare a public health state of emergency under s 167(2) include that the Minister 'is satisfied that extraordinary measures are required to prevent or minimise loss of life or prejudice to the safety, or harm to the health, of persons'.

Rules of the Supreme Court 1971 (WA), O 1 r 4B - provides that in considering the applications for discovery and leave to adduce expert evidence, the court must consider whether the proposed orders would promote the just and timely determination of the action.

Roe v The State of Western Australia [2013] WASC 130 - provides that the extent of the obligation to give discovery and the entitlement to discovery 'will be fashioned having regard to the general principles that are articulated in the Rules of the Supreme Court and in particular the principles enunciated in O 1 r 4A and r 4B'.

Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 - provides that the threshold test for discovery in judicial review proceedings - subject to any countervailing discretionary factors - is whether the applicant has a good case, or at least an arguable case, proof of which would be aided by discovery. 

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 - provides that the court's function is to adjudicate on the legality of administrative action, not the merits of that action. 

Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1 - provides that the construction of a statute conferring power, the court will, in an appropriate case, have regard to the principle of legality.

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 - provides that the general position at common law is that the person asserting a fact bears the onus of proof.  Subject to any modifying statutory provision, that position applies in judicial review proceedings.

Minister for Immigration and Citizenship v SZGUR - provides that the applicant bears the onus of proof in establishing the facts necessary to make out the errors he alleges.

Jones v Dunkel [1959] HCA 8; (1958) 101 CLR 298 - provides that where the applicant relies on inferences from proved facts, those facts 'must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'.

Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229 - provides that proportionality has been invoked in determining the validity of legislation which imposes a burden on constitutionally protected freedoms.

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [29] - provides that there is a presumption of law that the Parliament intended the exercise of the power to be reasonable. 

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 - where the power of the court to review for unreasonableness has been expanded from Wednesbury unreasonableness.

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 - where the court may infer that a decision maker has failed in the discharge of their functions according to law if '[t]he conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception.'

Minister for Immigration v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 - the Federal Court was concerned with an exercise of power by the Minister under s 501 of the Migration Act 1958 (Cth) to remove the respondent from the Australian community, as a result of his sexual offending. 

Analysis:

The proposed category of discovery goes beyond documents relevant to the grounds.   For documents to be relevant, they must relate to the decision of the Chief Health Officer and his consideration of any relevant or irrelevant considerations.  But the fact that a document refers or relates to the Chief Health Officer's consideration is not sufficient.  Bearing in mind evidence will be on affidavit, discovery should be confined to documents from which relevant inferences may be drawn and not extend to documents which, under the traditional test for discovery, might give rise to a line of enquiry.

The court must have regard to the resources available to both parties, and to the court, in managing this litigation. But, to adapt what the Court of Appeal said in relation to sentencing for an offence under the Emergency Management Act 2005 (WA), review of administrative action in times of emergency, such as the COVID‑19 pandemic, does not involve some special category of case in which the law is to be applied differently than in other times. The rule of law remains unaffected and the fundamental principles of judicial review apply.  It would not be in the interests of justice to deny access to procedures that are designed to promote the just determination of litigation if there is a proper basis to order them. 

The rules for discovery in O 26 do not apply in proceedings for judicial review 'unless and to the extent the court, under rule 5(2) or Order 4A gives leave and orders otherwise'.  

Conclusion:

The Court will not grant leave to adduce expert evidence in the terms proposed.  The Court ordered discovery, but in an amended form.  All documents, including internal and inter-department correspondence, sent or received by the Chief Health Officer referring or relating to:

1.1. The Chief Health Officer's consideration of:

1.1.1. the precautionary principle as detailed at 2 of the Table to s 3 of the Public Health Act 2016 (WA) (PH Act); and

1.1.2. the principle of proportionality as detailed at 3 of the Table to s 3 of the PH Act, prior to the Chief Health Officer issuing the WA Police Force Worker (Restrictions on Access) Directions (the Police Directions) on 12 November 2021 and in relation to the issuing of those directions.2. All documents, including internal and inter-department, concerning employee management, including management of the Western Australian Police Force, COVID-19 and vaccinations.

2. All documents concerning employee management, including management of the Western Australian Police Force, COVID-19 and vaccinations.

3. All documents referring or relating to the strong public health benefit that will be achieved by mandating COVID-19 vaccination for the entire WA Police workforce.

4. All documents received and/or relied on concerning how restricting access to WA Police facilities from unvaccinated WA Police Force workers pursuant to the Police Directions will decrease the risk of COVID-19 transmission in the community.

5. All documents upon which the CHO relied to make the Police Directions.

6. All documents upon which the CHO relied to make the WA Police Mission Critical Areas (Restrictions on Access) Directions (No 3).

7. All documents recording or referring to the CHO's reasons for making the Police Directions.

8. All documents relating to the CHO's ongoing public health risk assessment of the Police Directions.

 

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