Beale v Chief Health Officer[2022] QCA 188

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The applicant seeks to challenge two Directions made by the Chief Health Officer, mandating the need to be vaccinated against the Covid-19 virus.
2. [2]
   The first was the Public Health and Social Measures linked to vaccination status Direction (the First Direction).  It was posted online on 7 December 2021 but did not become effective until 17 December 2021.^[1]
3. [3]
   The second was the Public Health and Social Measures linked to vaccination status Direction (No 2), made on 24 December 2021 (the Second Direction).^[2]  That revoked the First Direction as at 24 December 2021.
4. [4]
   On 15 December 2021 the applicant commenced proceedings seeking a Statutory Order of Review of the First Direction.  The Amended Application was filed on 21 January 2022.  Relevantly it challenged a decision to refuse the applicant an exemption from the First Direction.  It also sought to challenge the First and Second Directions, in each case on the basis that the applicant was an aggrieved person because his application for exemption had been refused.  It asserted:

   1. (a)
      that the First and Second Directions were contrary to s 58 of the Human Rights Act 2019 (Qld), and affected by jurisdictional error; and
   2. (b)
      the decision to refuse an exemption was contrary to s 58 of the Human Rights Act, involved an error of law within the meaning of s 20 of the Judicial Review Act 1991 (Qld), and was an improper exercise of power.
5. [5]
   The relief sought was as follows:

   1. (a)
      paragraph 3: declaratory relief in respect of the First and Second Directions, pursuant to s 10 of the Civil Proceedings Act 2011 (Qld), or alternatively s 47(1) of the Judicial Review Act; and
   2. (b)
      paragraph 4: a declaration in respect of the decision to refuse an exemption, under s 30(1)(c) of the Judicial Review Act, that the applicant is not subject to the vaccination entry requirements under the First and Second Directions.
6. [6]
   On 4 February 2022 Boddice J made consent orders on a review of the proceedings. Those orders were part of an effort to have the applicant’s proceedings brought on for a hearing along with others that challenged the First Direction.
7. [7]
   Order No 6 related to disclosure:

“6. On or before 4pm on 14 February 2022, the respondents give disclosure of the following documents relevant to the first respondent’s decision to give the direction the subject of review:

a. documents with which the first respondent was briefed; and

b. any documents relevant to the formation of the belief in s 362B(1) of the Public Health Act 2005 (Qld).”

8. [8]
   As can be seen, Order 6(a), concerned the documents with which the decision maker was briefed when making the First Direction.  Order 6(b) concerned a wider scope of documents, namely those that were in the possession of the decision maker at the time he formed the belief which was the basis upon which the First Direction was given.
9. [9]
   The respondents commenced the process of assembling the documents to review them for those that were required to be disclosed under each part of Order 6.
10. [10]
    On 8 February 2022, the Second Direction was revoked, and a new Direction (the Third Direction) was issued.^[3]
11. [11]
    Yet another direction was issued on 4 March 2022: the Public Health and Social Measures linked to Vaccination status Direction (No 4) (the Fourth Direction).  That revoked the Third Direction.  However, it was not in evidence before the learned primary judge, as it only became effective at 6 pm on 4 March.
12. [12]
    On 15 February 2022, the respondents wrote to the applicant making several points:^[4]

    1. (a)
       the Direction, the subject of the proceeding had been revoked and the Third Direction was in force;
    2. (b)
       the respondents understood that the applicant intended to amend his application so that his proceedings were directed at the Third Direction; and
    3. (c)
       because the Direction, the subject of the proceeding was no longer in force or effect, the respondents proposed to make disclosure in accordance with Order 6 but treating it as referring to the Third Direction.
13. [13]
    On 21 February 2022, the respondents sent a list of documents complying with Order 6(a), as it applied to the Third Direction.^[5]  The letter made the following points:

    1. (a)
       because the disclosure under the order made by Boddice J would “prejudice the timely hearing of all the proceedings seeking review of the Chief Health Officer’s directions”, and the matter would be reviewed on 4 March 2022, they did not propose to give further disclosure in the proceeding;
    2. (b)
       they proposed to inform the court on 4 March 2022 of the disclosure made, and seek that the orders made by Boddice J be vacated; and
    3. (c)
       the applicant was asked to confirm his position, including whether he maintained a challenge to the First and Second Directions.
14. [14]
    The applicant replied on 22 February 2022, stating he maintained his challenge to the First and Second Directions, and insisted on compliance with the orders made by Boddice J.^[6]
15. [15]
    On 22 February 2022, the respondents replied,^[7] stating that the documents potentially caught by Order 6(b) numbered in the thousands.  Those documents had not been reviewed for relevance and privilege, and that process would be costly and time consuming and “risks prejudicing the expeditious resolution of this and related proceedings”.  They foreshadowed that at the review on 4 March 2022, they would seek to have Order 6(b) vacated.
16. [16]
    On 23 February 2022, the respondents wrote to the applicant,^[8] attaching a copy of the Human Rights assessment for the Third Direction, pointing out that as the First and Second Directions had been revoked, the applicant could no longer be aggrieved by the decision to give those directions, and there was no utility in the court giving declarations or other orders in respect of the First and Second Directions.
17. [17]
    On 3 March 2022, the respondents wrote to the applicant stating that they intended to raise the issues of disclosure, the review of the First and Second Directions, and a time for a hearing, and then made these points:^[9]

    1. (a)
       7,229 documents had been identified as potentially the subject of Order 6(b), of which 57 per cent had been assessed for relevance and privilege;
    2. (b)
       disclosure under Order 6(b) would “prejudice the timely hearing of all of the proceedings seeking to review the Chief Health Officer’s directions”;
    3. (c)
       they would seek that Order 6(b) be vacated; and
    4. (d)
       as the First and Second Directions had been revoked the applicant could no longer be aggrieved by the decision to give those directions or seek to review them.
18. [18]
    That was the state of the evidence when the matter was brought on for review before the learned primary judge, on 4 March 2022.
19. [19]
    The respondents proposed that in the circumstances, namely that the First and Second Directions in respect of which Order 6(b) was made had been revoked, Order 6(b) as made by Boddice J should be vacated.  Importantly, the respondent submitted:

    1. (a)
       orders had been made with a view to bringing the proceeding on for a hearing;
    2. (b)
       compliance with the disclosure order would jeopardise the timely hearing of the various proceedings challenging the Directions, including this proceeding;^[10]
    3. (c)
       order 6(b) had been vacated in other “like proceedings”;^[11]
    4. (d)
       they proposed that if order 6(b) was not vacated, then they would need further time to make that disclosure, but on the basis that it apply to the Third Direction.^[12]
20. [20]
    At the review the respondents explained the facts listed above.^[13]  The exchange covered aspects of the other proceedings that were being reviewed with a view to having directions to bring them all to a joint hearing.
21. [21]
    The learned primary judge addressed the draft order which had been provided, which sought, inter alia, that Order 6(b) be vacated.  Her Honour reiterated that the hearing was a review to set a timetable for a hearing.^[14]  The applicant was asked to address the draft orders including vacating Order 6(b).  The applicant made his submission.  The learned primary judge was not persuaded by what he said and vacated Order 6(b).
22. [22]
    The order made was as follows:

“3. The following paragraphs of the order of Boddice J dated 4 February 2022 are vacated:

1. (a)
   Paragraph 6(b).

2. (b)
   Paragraph 6(a), insofar as it relates to the revoked Public Health and Social Measures linked to vaccination status Direction and Public Health and Social Measures linked to vaccination status Direction (No 2).”

23. [23]
    The effect of the order was that paragraph 6(a) remained relevant to the Third Direction, whereas the respondent was relieved of the requirement to give disclosure in respect of the First and Second Directions.
24. [24]
    The applicant seeks to challenge only that order. He does so on a number of bases that include:

    1. (a)
       error of law, including under s 13(1) of the Human Rights Act;
    2. (b)
       failure to deliver reasons; and
    3. (c)
       the respondents’ failure to disclose material was defiant of the Court’s authority.
25. [25]
    There are a number of substantial hurdles confronting acceptance of the applicant’s contentions.
26. [26]
    First, the applicant’s proposed appeal proceeds on a fundamental misunderstanding as to the basis upon which the learned primary judge dealt with the matter.  It was a review to make directions to take the matter to a hearing.  It was quintessentially a hearing resulting in discretionary orders relating to matters of practice and procedure.  That is apparent from the nature of the hearing, but particularly from these features:

    1. (a)
       it was a review of a matter, designed to adjust a timetable to bring it on for hearing;
    2. (b)
       as circumstances changed so too did the need for previous orders to be amended or continued;
    3. (c)
       whilst the respondents proposed that Order 6(b) be vacated, they did offer an alternative course, namely that if it remained that disclosure would require further time, it was proposed that it be in respect of the Third Direction, the First and Second Directions having been revoked; and
    4. (d)
       her Honour was told that while the applicant had foreshadowed amending to challenge the Third Direction, that had not yet happened; thus disclosure issues were not finalised.
27. [27]
    There is longstanding authority concerning the restraint to be shown by an intermediate appellate court when dealing with matters of practice and procedure.^[15] As was said by this Court in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd:^[16]

“[13] In appeals from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure, although there is no absolute rule and each case must be considered in light of its own particular circumstances, generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: see Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48 at [14] per Williams JA (with whom Davies JA and Mullins J agreed) and Santos Limited v Fluor Australia Pty Ltd [2020] QCA 254 at [29].”

28. [28]
    Therefore, even if error on the part of the learned primary judge was established, the applicant would need to show the order worked a substantial injustice. In my view, that cannot be shown.
29. [29]
    The applicant foreshadowed to the respondents that he intended to amend the proceedings to challenge the Third and Fourth Directions.  When he does, it will create issues as to the Third and Fourth Directions which have not yet arisen in the proceedings.  Disclosure will be required under the Uniform Civil Procedure Rules 1999 as to those matters, and the trial division of the court can adjudicate on any issues in relation to it.  If, as the applicant suggests, disclosure for the Third and Fourth Directions will be essentially co-extensive with that for the First and Second Directions, he will not be prejudiced.  The limits under Order 6 of the order made by Boddice J did not apply to the Third and Fourth Directions, and though Order 6(a), as modified by the orders made by the learned primary judge, extended to disclosure by reference to the Third Direction, it did not in respect of the Fourth Direction, nor were they made when there was an extant issue raised as to the Third and Fourth Directions.  And it must be borne in mind that the State of Queensland is subject to model litigant obligations, so the court can anticipate that if there is disclosure to give, it will occur.
30. [30]
    Secondly, in my view, it is doubtful that the applicant has the requisite standing to pursue the relief in the Amended Application, which impacts upon his ability to establish a substantial injustice as identified in Adeva.
31. [31]
    A number of features about the events must be understood:

    1. (a)
       the First Direction was posted on 7 December 2021, but did not become operative until 17 December 2021;
    2. (b)
       the decision about which the applicant complains (to refuse an exemption), was only in respect of an exemption from the First Direction; it seems the applicant sought that exemption before the First Direction became operative as the decision is alleged to have been made on 9 December 2021;
    3. (c)
       the First Direction could not have impacted upon the applicant until it became operative, i.e. on 17 December 2021;
    4. (d)
       the First Direction was only operative for seven days, being revoked on 24 December 2021;
    5. (e)
       the Second Direction was operative for 45 days, being revoked on 8 February 2022; and
    6. (f)
       no exemption was sought from the operation of the Second Direction.^[17]
32. [32]
    Once the First Direction was revoked, the applicant had effectively obtained all the relief he sought with respect to the refusal to grant an exemption.  The applicant did not seek an exemption from the Second Direction and informed this Court that he had not sought exemptions in respect to the Third and Fourth Directions, so there was no further refusal to challenge.
33. [33]
    Further, whilst the applicant asserted that he had been affected in terms of his ability to play at music venues, there was nothing in what was said to show that any such impact fell in the seven days during which the First Direction was operative.  Even allowing the applicant some latitude in terms of proof (given he is self-represented), there is no clear link between what the First Direction prevented and any impact on the applicant between 17 and 24 December 2021.
34. [34]
    The applicant did not seek an exemption in respect of the Second Direction; even if he did, no relief is sought in that respect. Therefore, nothing need be addressed in terms of the exemption decision issue.
35. [35]
    From the time when the First and Second Directions were revoked^[18] the applicant ceased to be a person who could be aggrieved under the Judicial Review Act.  Section 7(1) of that Act defines a person aggrieved as including a “person whose interests are adversely affected by the decision”.  Section 44 enables a person to apply for a review “if the person’s interests are, or would be, adversely affected”.  The decisions attacked were revoked some time ago, and therefore if the applicant once had an interest affected, that is no longer the case.  Thus, the applicant does not fall into the category of a person entitled to a review.^[19]
36. [36]
    In other words, once the First and Second Directions were revoked, the applicant’s rights were no more than that of any other citizen.
37. [37]
    A requirement for standing demands a connection between the applicant’s interests and the relief sought.  There must be a personal connection with the dispute.  As was said in Australian Conservation Foundation Inc v Commonwealth:^[20]

“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”

38. [38]
    As this Court said in Jones v Public Trustee of Qld & Anor:^[21]

“The expression “person aggrieved” is no doubt one of wide import, but it excludes mere busybodies (Re Whitehouse [1982] Qd R 196, 204); and the classic exposition of James LJ in Re S, ex p Sidebotham [1880] 14 Ch D 458, 465, requires that the applicant be someone who has “suffered a legal grievance … which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something”. See also Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530-531.”

39. [39]
    The reference in that passage to Australian Conservation Foundation Inc v Commonwealth was to the following passage by Gibbs J:^[22]

“It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.

The rules as to standing are the same whether the plaintiff seeks a declaration or an injunction. In Boyce v. Paddington Borough Council (1903) 1 Ch 109, at p 114, Buckley J. stated the effect of the earlier authorities as follows:

“A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with . . . ; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.””

40. [40]
    The amended application^[23] has a number of features to be noted:

    1. (a)
       it applies to “review the decision of Queensland Health – Health Directions Exemption Service made on 9 December 2021 that rejected the applicant’s application for exemption … from [the First Direction]”; that decision is defined as “the Decision”, and the First Direction as “the Direction”;
    2. (b)
       no other decision is challenged; the applicant confirmed that he applied for an exemption only in respect of the First Direction;^[24]
    3. (c)
       it also applies for “relief in connection with the making of the Direction and its successor [the Second Direction]”;
    4. (d)
       it states that the applicant is “aggrieved by the Decision because … by reason of the Direction and the refusal of his application for exemption [the applicant is]:

       1. unable to meaningfully participate in public life and attend many public and private venues in Queensland”, and
       2. “unable to practice his faith through his recreational passions such as by performing as a professional musician in live music venues …”; and
       3. being discriminated against on the basis of religion and contrary to the Human Rights Act;
    5. (e)
       paragraphs 1 and 2 then challenge the First and Second Directions as being contrary to s 58 of the Human Rights Act and affected by jurisdictional error; and
    6. (f)
       paragraphs 3 and 4 challenge the Decision on a variety of grounds.
41. [41]
    The final relief sought in the amended application is separately directed at the First and Second Directions, and the Decision.
42. [42]
    As for the Directions, paragraph 3 seeks a declaration pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) or alternatively s 47(1) of the Judicial Review Act 1991 (Qld), that “the Vaccination Entry Requirements in the Directions were made in a way that is not compatible with the applicant’s right of freedom of religion and belief”.
43. [43]
    As for the Decision, paragraph 4 seeks an order pursuant to s 30(1)(c) of the Judicial Review Act, “declaring the rights of the applicant to be such that (whether by exemption or otherwise) he is not subject to the vaccination entry requirements in sections 8 and 9 of the Directions”.
44. [44]
    Therefore, the decision which the applicant seeks to contend is contrary to s 58 of the Human Rights Act, is the decision to refuse him an exemption.  However, as the applicant accepted, by the revocation of the First Direction, the applicant has already obtained the relief he sought.  He had achieved that relief on 24 December 2021.  Further, he did not seek an exemption under the Second, Third or Fourth Directions, so there has never been a question of his being refused an exemption.  Therefore, from the revocation of the First Direction on 24 December 2021, there has been no live issue as to the relief sought in paragraph 4.
45. [45]
    The final relief in paragraph 3 seeks a declaration that “the Vaccination Entry Requirements in the Directions were made in a way that is not compatible with the applicant’s right of freedom of religion and belief”.
46. [46]
    That relief plainly applies only to the First and Second Directions.  The applicant sought an exemption from the operation of the First Direction, but it was refused.  Had the exemption been granted the applicant would not have held any special interest such as would have entitled him to pursue the relief in paragraph 3 in so far as it relates to the First Direction.  He did not seek an exemption from the Second Direction.
47. [47]
    But, as the applicant accepted, once the First Direction was revoked, he had achieved the relief he sought in respect of paragraph 4 which concerned whether he was bound by the vaccination entry requirements in each Direction.  In other words, he was no longer subject to those requirements.  They are the same requirements that are at the heart of the relief sought in paragraph 3.  Once the First and Second Directions were revoked if there was ever a question to be agitated concerning the making of the vaccination entry requirements, it no longer existed.
48. [48]
    As far as the declaratory relief in paragraph 3 is concerned, the applicant’s interest is not special in the sense described in Australian Conservation Foundation Inc v Commonwealth.  The applicant’s rights are the same as every other citizen.  The applicant asserted during the hearing in this Court that his interests were affected because during the period of the First and Second Directions he had been unable to play shows in a band, and thereby suffered loss.  There are two difficulties with that.  First, as the appeal is one stricto sensu, the material is confined to that before the learned primary judge.  Secondly, what was said did not rise above assertion.  As explained in paragraph [33] above there was no evidentiary basis to conclude that the First or Second Directions affected the applicant in a way distinct from other citizens.
49. [49]
    Thirdly, in so far as it was contended that the Human Rights Act gives rise to an independent obligation on the court to grant relief in respect of disclosure, that contention should be rejected.  Section 5(2)(a) the Human Rights Act provides that the Act applies to a court but only if the court is carrying out a function under Part 2 and Part 3 Division 3 of the Act.  The relief sought here is under the Civil Proceedings Act and the Judicial Review Act.  No relief is sought under s 53 of the Human Rights Act so there is no function the court performs under Part 2 and Part 3 Division 3 of the Act.
50. [50]
    Fourthly, the applicant’s reliance upon the general disclosure obligations under r 211 of the Uniform Civil Procedure Rules does not assist the applicant.  They do not govern disclosure under an application such as this, and in any event are subject to any order of the court.
51. [51]
    Fifthly, the applicant contended that the learned primary judge failed to give reasons for the orders made.  In my view, this contention can be rejected.  Given the learned primary judge was only reviewing the matter for the purpose of setting directions to take the matter to a hearing, it is not unusual to have no reasons delivered for the orders made.  The learned primary judge had the benefit of written submissions from the respondents and raised the relevant matters by reference to a draft order of which the applicant had advance notice.  The applicant was given a full opportunity to respond, which he did.  The necessity to give reasons depends on the nature of the issues for determination and hearing itself.^[25]  None were required here as the applicant was fully aware of the process being followed and why the learned primary judge was asking for his views on the draft order.
52. [52]
    In any event, upon a consideration of the transcript of the hearing the learned primary judge did give brief but adequate reasons.^[26]
53. [53]
    It has not been demonstrated that the discretion exercised by the learned primary judge miscarried in any way, nor has it been demonstrated that the applicant has suffered a substantial injustice by reason of the impugned order having been made.

Conclusion

54. [54]
    For the reasons expressed above the application for leave to appeal must be dismissed.
55. [55]
    I propose the following orders:

1. The application for leave to appeal is refused.

2. The applicant pay the respondents’ costs of and incidental to the application.

56. [56]
    BOND JA:  I agree with the reasons for judgment of Morrison JA and with the orders proposed by his Honour.
57. [57]
    FLANAGAN J:  I agree with the reasons and orders proposed by Morrison JA.