Applicant Seeks Compensations for Covid-19 Restriction
Thompson v The Secretary, Department of Health (Review and Regulation) [2022] VCAT 504 (11 May 2022)
The applicant filed an application for compensation for loss caused by restrictions imposed in response to Covid-19 pandemic. The applicant likewise seeks that the Secretary produce copies of a wide range of documents created in the process of preparing the directions. The Court, in resolving this dispute, assessed the Secretary's exercise of the power of authorisation.
Facts:
Steve Thompson, the applicant, applied for the Secretary of the Department of Health (Secretary) to produce certain documents for the purposes of this proceeding. On 11 September 2020, the applicant sought a payment of compensation under s 204 of the Public Health and Wellbeing Act 2008 (the PHW Act). The claim was made for losses suffered as a result of restrictions imposed in response to the Covid-19 pandemic. The applicant conducts a Jim’s Mowing franchise, and was prevented from operating his business.
The amount of compensation claimed is $24,000 per week (including GST), from 5 August 2020 to the time when the applicant was again able to operate his business in the normal manner. This application for compensation was refused by the Secretary on 28 September 2020. The applicant has applied to VCAT under s 204(7) for a review of that refusal. Under s 204(2), compensation is only payable if the Secretary (or VCAT on review) ‘decides that there were insufficient grounds for the giving of an authorisation to an authorised officer’(AO).
That refers to an authorisation given by the Chief Health Officer (CHO) (Professor Brett Sutton) under s 199 for AOs to exercise certain emergency powers. In particular, relevant to this case, to make ‘directions’, which restricted the operation of businesses, under the emergency powers in s 200. The Secretary’s letter of refusal of 28 September 2020 referred to the statutory criteria for the exercise by the CHO of the power to issue authorisations to AOs under s 199. There was an explanation as to how the four components of the definition in s 3 of ‘serious risk to public health’ applied, in the light of the pandemic.
The applicant seeks that the Secretary produce copies of a wide range of documents created in the process of preparing 31 specified directions under s 200 between 31 July and 27 October 2020 which imposed Covid-19 restrictions (Relevant Directions). The Secretary, on the other hand contends that the exercise of the power of authorisation under s 199 began and ended with the issue of the formal notice of authorisation in each case.
Issue:
Whether or not the Secretary is required to produce the documents requested.
Applicable law:
Loielo v Giles [2020] VSC 722 - an (unsuccessful) challenge to the validity of the Stay at Home Directions (Restricted Areas) (No. 15) of 13 September 2020 (Curfew Direction) of 13 September 2020, brought by way of judicial review.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 - provides that while there is a requirement for any Authorisation given orally to be confirmed in writing as soon as reasonably practicable (under s 201(2)), any oral Authorisation which was in fact issued, but not so confirmed in writing, would nevertheless be valid.
Filonis v Transport Accident Commission (2003) 20 VAR 96; [2003] VCAT 445. - pursuant to which Judge Bowman relevantly referred to two requirements under s 49(3).
MCN v State of Victoria (Department of Education and Training) [2021] VCAT 1010 - the Tribunal, constituted by Deputy President Nihill, heard an application for orders under s 80 for the production of a large number of documents in a discrimination matter. The Tribunal affirmed that there are no rules with respect to discovery in VCAT, as it is not a court of pleadings.
Liesfield v SPI Electricity Pty Ltd & Ors (Ruling No 1[2013] VSC 634 - provides that "where discovery potentially requires extensive trawling through databases and emails, a court must be conscious of the words of the High Court in Armstrong and obligations under the CPA."
Volunteer Fire Brigades Victoria v CFA [2021] VCAT 1010 - where the Tribunal bore those cases in mind, while acknowledging that the Tribunal is not a court of pleadings and does not require ‘compliance’ with the Supreme Court Rules, orders for discovery should be proportionate to the relevance of the issues addressed in the proceeding and its likely costs.
Canaan Holdings Pty Ltd v Whitehorse CC [2015] VCAT 1608 - provides that the authorisations are important documents and in my view, there is no reason to conclude that they may not be made in the form of an ‘instrument’.
Analysis:
Division 3 of Part 10 of the PHW Act (s 198–s 204) provided for emergency powers which were used to impose the unprecedented restrictions introduced in Victoria from March 2020. First, there is the power to declare a state of emergency. Second, is the power given to the CHO by s 199 to issue authorisations to AOs where necessary for the purpose of eliminating or reducing a serious risk to public health. Third, there is the power for the AOs thus authorised to exercise the emergency powers set out in s 200.
Section 204 only provides for compensation as a result of a s 199 authorisation by the CHO. There is no provision for compensation for loss suffered as a result of a direction given under s 200 (or indeed, as the result of the exercise of any power under s 200). The witness statement of Professor Sutton, together with the attached documents, sets out in detail the basis on which the Secretary exercised the s 199 power to confer the ability to act on AOs.
Conclusion:
The Court determined that the Secretary is not required to produce the documents requested. The Secretary, Department of Health, is substituted as respondent. The applicant’s application for an orders under s 49(3) or s 80(3) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that the respondent produce specified documents, or that they should be the subject of summonses to produce them, under s 104 of the VCAT Act, is refused. This matter is listed for an administrative mention on 20 May 2022.
