Larter v Hazzard [2022] NSWCA 238 (22 November 2022)

Larter v Hazzard [2022] NSWCA 238 (22 November 2022)

Intro: This is an appeal from the primary judgment of the judge that the public health orders of prohibiting the applicant as a paramedic from doing work on the ground that he refused to be vaccinated in accordance with his religious beliefs were invalid.

Facts:

The applicant was a paramedic in the NSW Ambulance Service who, in accordance with his religious beliefs, has decided not to be vaccinated against the COVID-19 virus. As a result he was, from 30 September 2021, prohibited from doing work in that capacity, by public health orders made by the Minister for Health and Medical Research under s 7 of the Public Health Act 2010 (NSW) (“the Act”). The applicant sought declarations that the public health orders in question were invalid. His application was dismissed by the primary judge. He sought leave to appeal against both the primary judgment and the costs orders against him.

On 26 August 2021, pursuant to s 7(2) of the Act, the Minister made the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (“the Original Order”). The relevant situation was the COVID-19 pandemic, including outbreaks of several sub-variants of the virus. The Original Order was amended with effect from 29 September 2021 (“the September Amendment”). It was revoked on 22 October 2021, when it was replaced by a further order of that date (“the October Order”). The October Order was revoked on 23 December 2021 (after the primary judgment was delivered), when it was replaced by an order of that date (“the December Order”). A further order was made on 21 March 2022 (“the March 2022 Order”), which expired on 19 June 2022. Only the Original Order and the October Order were impugned in the proceedings below.

Clause 4(1) of the Original Order directed that a health care worker must not do work as a health care worker unless the worker had received at least one dose of a COVID-19 vaccine if the work was done on or after 30 September but not before 30 November 2021, and at least two doses of the vaccine if the work was done on or after 30 November 2021. Part 2 of the Original Order (as amended by the September Amendment, which inserted sub-clause 4(1A)), was as follows:

(1) The Minister directs that a health care worker must not do work as a health care worker unless—

(a) if the work is done on or after 30 September but before 30 November 2021— the worker has received at least 1 dose of a COVID-19 vaccine, or

(b) if the work is done on or after 30 November 2021—the worker has received at least 2 doses of a COVID-19 vaccine.

Part 2 of the October Order relevantly provided:

...

5 Health care workers not to work unvaccinated

(1) A health care worker must not do work as a health care worker on or after the commencement of this Order but before 30 November 2021 unless the worker has received at least 1 dose of a COVID-19 vaccine.

(2) A health care worker must not do work as a health care worker on or after 30 November 2021 unless the worker has received at least 2 doses of a COVID-19 vaccine.

Before the hearing at first instance, Mr Larter’s registration as a paramedic was suspended by the Paramedicine Council on 20 September 2021, under s 150 of the Health Practitioner Regulation National Law (NSW) (“the HPR law”), as a result of six complaints concerning his having expressed in the media views about the COVID-19 pandemic and public health orders for lockdowns and vaccinations. The reasons for that decision, which were provided to Mr Larter in writing on 7 October 2021, referred amongst other things to the Council’s concerns that the statements attributed to him (which included that the public health orders would result in members of the public “dying”) raised issues of potential risks to public safety and the public interest. On 15 October 2021, Mr Larter appealed against the Council’s decision to suspend his registration to the NSW Civil and Administrative Tribunal; that appeal has not yet been determined. His appeal was listed for hearing on 28 and 29 June 2022; the outcome was not in evidence.

Since the hearing below, Mr Larter’s employment has been terminated, on 22 March 2022. On the same day, he commenced proceedings in the Industrial Relations Commission for unfair dismissal, complaining that NSW Ambulance had terminated his employment prior to his case being exhausted in the Supreme Court and NCAT, and that the points raised in a reply by him to NSW Ambulance on 22 February 2022 had not been addressed. So far as the evidence before this Court indicated, those proceedings have not yet been determined.

As has been noted, the last version of the order expired, by operation of s 7(5) of the Act, on 19 June 2022, after Mr Larter had filed his summons for leave to appeal and after the parties had exchanged their written submissions. Although it remains a possibility, at least theoretically, that a further similar order might be made at some future time, there is currently no longer any prohibition sourced in a public health order on unvaccinated health care workers working in that capacity.

Issues:

1) Whether or not the primary judge erred in refusing leave to amend to include a ground alleging that the Minister took into account an irrelevant consideration in making the September Order and/or the October Order, namely a desire to dismiss (unvaccinated) health care workers from employment or otherwise punish such persons.

2) whether or not the September Order and the October Order were legally unreasonable.

Ruling:

No.

Although the issue regarding the order’s 90-day operational period was arguable, no ground of appeal had sufficient prospects of ultimate success to justify a grant of leave to appeal.

There would also be no utility in granting leave to appeal, because the orders impugned and their successors have expired and thus no longer have any effect. Moreover, no practical benefit would accrue to the applicant from having the orders declared invalid: neither the professional complaints made against him nor the termination of his employment depends on them, and a declaration that they were invalid would not result in his reinstatement.

That the orders the subject of the proceedings below have now expired is of considerable relevance on the question of leave to appeal.[41] In Kassam (CA), while the Court was prepared to grant leave to appeal in relation to grounds concerning the proper construction of s 7 of the Act which the State in that case conceded raised a matter of public importance,[42] leave was refused on the other grounds, for reasons which included:

“[36] ... the remaining grounds involve challenges to the process by which the Impugned Orders were made, or the legal reasonableness of those Orders in light of the evidence led at first instance of the Minister’s purpose in making those orders. These matters are all evidence specific and the grant of leave to appeal would manifestly lack utility in relation to [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) and Public Health (COVID-19 Aged Care Facilities) Order 2021 (NSW)], both of which have been repealed. A grant of leave to appeal would be of extremely limited utility in relation to the [Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (NSW)], as it will expire on 22 December 2021 with the final term of public schools in New South Wales ending on 17 December 2021.”

Moreover, no action adverse to Mr Larter depends on the impugned orders, and no practical benefit would accrue to him from having them declared invalid. The professional complaints against Mr Larter under the HPR Law which have been referred to the Paramedicine Council do not depend on any of the Orders. It is not suggested that Mr Larter has contravened the Orders; in compliance with them, he has not done work as a health care worker while they have been in force.

Although the letter referred to the Original Order and the October Order, the order in force at the time of Mr Larter’s termination was the March 2022 Order; it was not one of those impugned in the proceedings below, as it had not then been made. In any event, the termination did not depend on the Original Order. The Determination, which pursuant to s 67A(1) of the HS Act applies to employees of the Ambulance Service, requires NSW Health Service employees to have received “at least two doses of a COVID-19 vaccine on and from 30 November 2021”. It was not impugned in these proceedings. Non-compliance with its requirements provided an independent basis for Mr Larter’s termination. Declaring void any or all of the Orders would not result in his reinstatement.

The Act confers a broad discretion on the Minister in accordance with its intention of affording the maximum flexibility possible to address and counter risks to public health and their potential consequences, and any judicial review of the Minister’s exercise of power must be undertaken not by reference to what may have been objectively necessary but by reference to whether it was open to the Minister, acting reasonably, to “consider” that the measures given effect by the orders were necessary:

Kassam v Hazzard; Henry v Hazzard (2012) 106 NSWLR 520; [2021] NSWCA 299, followed.

As to the applicant’s argument that it was unreasonable to require a very small number of conscientious objectors within NSW Health to be vaccinated, while not at the same time requiring privately employed general practitioners and pharmacists to be vaccinated, the focus must be on what the order required, and not on what more it might have required. The fact that an order does not go so far as it might does not mean that it is unreasonable. The order addressed a component of the risks posed by unvaccinated healthcare workers, and it was not unreasonable for the Minister to consider it necessary to deal with the risk

While the order may not have dealt with the whole of the risk posed by unvaccinated health practitioners, it dealt with an aspect of it, namely the risk posed by unvaccinated NSW Health workers.

In addressing the increased risk of transmission posed by unvaccinated NSW Health workers, it was a direction that it was not unreasonable for the Minister to consider necessary to deal with the risk.

This ground has insufficient prospects of success to warrant a grant of leave.

Conclusion and orders:

For the foregoing reasons, in my opinion, only the second issue is sufficiently arguable to potentially justify a grant of leave to appeal. However, because even if it succeeded the relevant part of the Original Order would be severable, there are insufficient prospects of ultimate success to justify a grant of leave. Moreover, no action against Mr Larter depends on that Order, let alone on the arguably invalid Clause 4(1)(b), which had been superseded at the time of his termination. All the impugned orders, and those to like effect which replaced them, have expired. Declaring void any or all of the Orders would not result in Mr Larter’s reinstatement. There is no utility in granting leave to appeal.

In my opinion, time to apply for leave to appeal should be extended to the date on which the summons was filed, but leave to appeal should be refused with costs.

(1) Grant the applicant an extension of time to apply for leave to appeal to the date on which the summons was filed; and

(2) Refuse leave to appeal, with costs.