Wilson v State of Victoria

• Jurisdiction: Australia Federal only
• Judgment Date: 20 February 2023
• Neutral Citation: [2023] FCA 111
• Date: 20 February 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Wilson v State of Victoria [2023] FCA 111

File number(s):	VID 624 of 2021
Judgment of:	HESPE J
Date of judgment:	20 February 2023
Catchwords:	PRACTICE AND PROCEDURE – applications for summary dismissal and strike out – pleadings allege invalidity of measures relating to the rollout of COVID-19 vaccines and restrictions on unvaccinated individuals in the State of Victoria based on Constitution, contraventions of Imperial statues, incompatibility with the Charter of Human Rights and Responsibilities Act 2008 (Vic) – whether Applicants enjoy reasonable prospects of success
Legislation:	Constitution ss 51(xxiiiA), 51(xxxvii), 51(xxxviii), 109 Australian Immunisation Register Act 2015 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) rr 13.01, 26.01 Judiciary Act 1903 (Cth) s 39B National Health Act 1953 (Cth) s 132G National Health Amendment (COVID-19) Act 2021 (Cth) Sch 1 Public Governance, Performance and Accountability Act 2013 (Cth) s 65 Statute of Westminster Adoption Act 1942 (Cth) s 2 Charter of Human Rights and Responsibilities Act 2008 (Vic) ss 1, 3, 4, 7, 28, 29, 31, 32, 38, 39 Imperial Acts Application Act 1980 (Vic) Pt II Div 3, Pt II Div 4 Interpretation of Legislation Act 1984 (Vic) s 38 Occupational Health and Safety Act 2004 (Vic) Public Health and Wellbeing Act 2008 (Vic) ss 165A, 165AB, 165AI, 165AL, 165CR, 198, 200, 204 Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) s 12 Subordinate Legislation Act 1994 (Vic) s 3 COVID-19 Mandatory Vaccination (Workers) Directions (Vic) COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 6) (Vic) Pandemic (Workplace) Order 2022 (No. 8) (Vic) Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2021 (No. 1) (Vic) Pandemic COVID-19 Mandatory Vaccination (General Workers) Order 2022 (No. 4) (Vic) Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2021 (No. 1) (Vic) Pandemic COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 6) (Vic) Victoria, Victoria Government Gazette (Special), No S 705, 10 December 2021 (Vic)
Cases cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Clubb v Edwards [2019] HCA 11; (2019) 267 CLR 171 Cook v Pasminco Limited [2000] FCA 677; (2000) 99 FCR 548 DBE17 v Commonwealth of Australia [2020] FCA 958 Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412 Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 198 ALR 250 Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 96 ALJR 234 Kassam v Hazzard [2021] NSWCA 299; (2021) 106 NSWLR 520 Kassam v Hazzard [2021] NSWSC 1320 Kerrison v Melbourne City Council [2014] FCAFC 130; 228 FCR 87 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 Knowles v Commonwealth of Australia [2022] FCA 741 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 McGinty v Western Australia (1996) 186 CLR 140 Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Re Judiciary and Navigation Acts (1921) 29 CLR 257 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Truth about Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11; (2000) 200 CLR 591 Unions NSW v New South Wales [2023] HCA 4 Wong v Commonwealth [2009] HCA 3; (2009) 236 CLR 573 Wragg v New South Wales (1953) 88 CLR 353
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	119
Date of hearing:	15 July 2022
Counsel for the Applicants:	The Applicants appeared in person
Counsel for the First Respondent:	Mr L Brown with Ms T Meyrick
Solicitor for the First Respondent:	Victorian Government Solicitor’s Office
Counsel for the Second Respondent:	Mr C Tran with Ms E Brumby
Solicitor for the Second Respondent:	Australian Government Solicitor

ORDERS

		VID 624 of 2021
BETWEEN:	TRACEY LEE WILSON First Applicant ; ERIC CAMERON WILSON Second Applicant
AND:	STATE OF VICTORIA First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent

order made by:	HESPE J
DATE OF ORDER:	20 February 2023

THE COURT ORDERS THAT:

1. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), there be summary judgment in the proceeding in favour of the Respondents.

2. Any costs to be awarded in the proceeding are to be fixed by way of a lump sum.

3. On or before 4.00 pm on 6 March 2023, the parties:

(a) file proposed agreed orders on any orders for lump sum costs in the proceeding (including reserved costs); alternatively

(b) in the absence of agreement, file written submissions, limited to three (3) pages on the appropriate lump sum costs orders to be made in the proceeding, together with any affidavit material in support of those submissions and a proposed form of order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1 This is an interlocutory application by the Respondents seeking the following alternative orders:

(1) an order under r 13.01 of the Federal Court Rules 2011 (Cth) that the Applicants’ amended originating application be set aside for want of jurisdiction;

(2) an order for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Rules; and

(3) an order that the Applicants’ amended statement of claim be struck out under r 16.21 of the Rules.

2 The Respondents also sought costs.

DECLARATIONS SOUGHT BY THE APPLICANTS

3 By their amended originating application dated 21 January 2022, the Applicants seek relief in relation to measures taken in Victoria in response to the COVID-19 pandemic, being measures that related to the rollout of vaccines and restrictions imposed on the activities of individuals who were not vaccinated against the virus that causes...