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Johnston v Commissioner of Police (Qld)[2022] QSC 96

Johnston v Commissioner of Police (Qld)[2022] QSC 96

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston & Ors v Commissioner of Police (Qld) & Ors; Witthahn & Ors v Chief Executive of Hospital & Health Services & Director General of Queensland Health & Ors; Sutton & Ors v Commissioner of Police (Qld) & Ors; Baxter & Ors v Chief Health Officer & Ors [2022] QSC 96

PARTIES:

In Proceeding Number 11254 of 2021

DYLAN MARK JOHNSTON

(first applicant)

BENJAMIN OWEN OAKLEY

(second applicant)

KEVIN JOSEPH GHERINGER

(third applicant)

TONY ADAM PAYNE

(fourth applicant)

CONNAN KEITH BARRELL

(fifth applicant)

BENJAMIN SHANAHAN

(sixth applicant)

TONIA MARCELLE LANCE

(seventh applicant)

v

KATARINA RUZH CARROLL APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(first respondent)

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(third respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Proceeding Number 11258 of 2021

BERNARD WITTHAHN

(first applicant)

SARAH WINDSOR

(second applicant)

CAMERON EVERS

(third applicant)

BEN NOSOV

(fourth applicant)

PETER THOMSON

(fifth applicant)

MELANIE TRAKOSAS

(sixth applicant)

MICHAEL STUTH

(seventh applicant)

BRITTANY LEVEN

(eighth applicant)

JOSHUA TUNLEY

(ninth applicant)

BENJAMIN ELLIOT VIGNAND BAXTER

(tenth applicant)

DAREN LONGOBARDI

(eleventh applicant)

SIMON MORRISON

(twelfth applicant)

DONNA BOWMAN

(thirteenth applicant)

v

JOHN WAKEFIELD, CHIEF EXECUTIVE OF HOSPITAL AND HEALTH SERVICES AND DIRECTOR GENERAL OF QUEENSLAND HEALTH

(first respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Proceeding Number 12168 of 2021

SHAUN SUTTON

(first applicant)

DOMINIC LUIS SAFI

(second applicant)

JASON MOLE

(third applicant)

ADRIAN KNIGHT

(fourth applicant)

STEPHEN LYTTLE

(fifth applicant)

WENDY HOLDERNESS

(sixth applicant)

ANDREW HOLDERNESS

(seventh applicant)

JASDEEP ATWAL

(eighth applicant)

LOUISA-JANE LOGUE

(ninth applicant)

MALCOLM CAMERON LOGUE

(tenth applicant)

OLIVER WILLIAM GEORGE

(eleventh applicant)

DAVID WILLIAM MORGAN

(twelfth applicant)

BRITAINIE JAY STICKLEY

(thirteenth applicant)

SEAN DOUGLAS BLAIR

(fourteenth applicant)

DONNA JANELLE MALONE

(fifteenth applicant)

LUCAS DEAN MIZZEN

(sixteenth applicant)

HAYDEN WAYNE DRINNEN

(seventeenth applicant)

KARINA LEE ORMOND

(eighteenth applicant)

ADAM GREEN

(nineteenth applicant)

NATALIE SKENNERTON

(twentieth applicant)

BRONWYN SMITH

(twenty-first applicant)

DREW CARMICHAEL

(twenty-second applicant)

ANDREW MARSHALL

(twenty-third applicant)

TRUDY BORLASE

(twenty-fourth applicant)

MATT DOWN

(twenty-fifth applicant)

JEAN-LOUIS CARPE

(twenty-sixth applicant)

ANDREW CARY

(twenty-seventh applicant)

CHRISTIAN HAR

(twenty-eighth applicant)

LUIS LARRARTE

(twenty-ninth applicant)

NATALIE MAHER

(thirtieth applicant)

LYNDELLE GIBBS

(thirty-first applicant)

VRINDA MCCAULEY

(thirty-second applicant)

BRENDON SMITH

(thirty-third applicant)

MARK RIX

(thirty-fourth applicant)

MARLON BESSON

(thirty-fifth applicant)

SCOTT BEVERIDGE

(thirty-sixth applicant)

CANDICE STRAIN

(thirty-seventh applicant)

MARK CARROLL-WALDEN

(thirty-eight applicant)

MEGAN FAULKS

(thirty-ninth applicant)

HAYLEY REID

(fortieth applicant)

DAVID BROWN

(forty-first applicant)

MATT SHEERS

(forty-second applicant)

ANDREW INGRAM

(forty-third applicant)

KERRI KNIGHT

(forty-fourth applicant)

COURTNEY MITCHELL

(forty-fifth applicant)

LORINDA BILLING

(forty-sixth applicant)

CAROLE VICKERY

(forty-seventh applicant)

KIERAN ROBINSON

(forty-eighth applicant)

DARREN BUCKLEY

(forty-ninth applicant)

DONNA COLE

(fiftieth applicant)

ERIN MICHELLE O'REGAN

(fifty-first applicant)

ANDREA KADEN

(fifty-second applicant)

KELLIE KNIGHT

(fifty-third applicant)

DENA MILLER

(fifty-fourth applicant)

v

KATARINA RUZH CARROLL APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Proceeding Number 508 of 2022

BENJAMIN ELLIOT VIGNAND BAXTER

(first applicant)

VALERIE BRYCE

(second applicant)

PETER PARRY

(third applicant)

ANTHONY FRANCIS O'BRIEN

(fourth applicant)

RACHEL MAREE ARAMBEPOLA

(fifth applicant)

DONNA GRAY

(sixth applicant)

CASSANDRA SHELLEY FRITH

(seventh applicant)

PETER DAMIEN STANWAY

(eighth applicant)

SUSAN VERA MCLEVIE

(ninth applicant)

ANNABEL HILARY MAWBEY

(tenth applicant)

CHARLES IAN MCDONALD

(eleventh applicant)

ANDREW BARRY RAWLINGS

(twelfth applicant)

MARY-JANE STEVENS

(thirteenth applicant)

KAREN LEANNE NORTH

(fourteenth applicant)

MELANIE TRAKOSAS

(fifteenth applicant)

BENJAMIN NOSOV

(sixteenth applicant)

JOSHUA TUNLEY

(seventeenth applicant)

SIMON MORRISON

(eighteenth applicant)

CAMERON EVERS

(nineteenth applicant)

MICHAEL STUTH

(twentieth applicant)

DONNA BOWMAN

(twenty-first applicant)

PETER THOMSON

(twenty-second applicant)

DAREN LONGOBARDI

(twenty-third applicant)

v

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(first respondent)

STATE OF QUEENSLAND

(second respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

FILE NO/S:

11254/21, 11258/21, 12168/21, 508/22

DIVISION:

Trial

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2022

JUDGE:

Dalton J

COUNSEL:

In Proceeding Numbers 11254/21 and 11258/21

DF Villa SC for the applicants

MH Hindman QC with B McMillan and P Nevard for the respondents

FJ Nagorcka and KJE Blore for the Attorney-General (Qld) intervening

P Morreau for the Queensland Human Rights Commission intervening

In Proceeding Number 508/22

P Santucci for the applicants

MH Hindman QC with B McMillan and P Nevard for the respondents

FJ Nagorcka and KJE Blore for the Attorney-General (Qld) intervening

P Morreau for the Queensland Human Rights Commission intervening

In Proceeding Number 12168/21

DJ O'Gorman SC for the applicants

MH Hindman QC with B McMillan and P Nevard for the respondents

FJ Nagorcka and KJE Blore for the Attorney-General (Qld) intervening

P Morreau for the Queensland Human Rights Commission intervening

SOLICITORS:

For Proceedings 11254/21, 11258/21 and 508/22

Alexander Law for the applicants

Crown Law for the respondents

Crown Law for the first intervenor

Queensland Human Rights Commission for the second intervenor

For Proceeding 12168/21

Sibley Lawyers for the applicants

Crown Law for the respondents

Crown Law for the first intervenor

Queensland Human Rights Commission for the second intervenor

  1. [1]
    These are reasons for decisions I gave ex tempore on 18 May 2022 on a review of these four proceedings which for ease of reference I will refer to as Johnston, Witthahn, Baxter and Sutton.  On 16 February 2022 I listed Baxter, Johnston and Witthahn for final hearing beginning 30 May 2022.  On 19 April I ordered Sutton to be heard on the same dates.  On 18 May 2022 I was asked to review the matters and the parties made submissions as to whether or not some or all of these proceedings could be heard on 30 May 2022.  I ordered that the hearing in Baxter be adjourned and that Witthahn, Sutton and part of Johnston remain listed for hearing on 30 May 2022.
  2. [2]
    All four proceedings began as judicial review proceedings by applicants who challenged directives of the Executive requiring them to have vaccinations against COVID-19 before entering particular premises, or attending work at particular workplaces.  Johnston, Witthahn and Sutton were among the earliest of these cases, whereas Baxter was begun somewhat later.  As at 18 May 2022, Witthahn was brought by 12 applicants who work for the Queensland Ambulance Service (QAS) and who challenge directives made by the Executive Director of the QAS.  Sutton is a matter where police officers challenge the directive made by the Commissioner of Police.  Johnston is also a proceeding brought by police officers.  Part of it is very similar to the Sutton proceeding.  The other part of it challenges a directive given by the Chief Health Officer (CHO).  Baxter is a proceeding brought by QAS officers, many of whom are applicants in Witthahn as well.  The Baxter proceeding challenges a directive by the CHO which prevents unvaccinated people entering medical workplaces. 
  3. [3]
    As well as the above four matters I have been managing eight other proceedings in which the same or similar directives are challenged by different applicants.  There are commonalities and differences as to issues and representation across the 12 matters.  Some of the proceedings are better resourced than others.  Those in which Alexander Law is the solicitor for the applicants are well‑resourced and detailed expert reports from scientists or medical practitioners have been filed in them.  Others, of which Sutton was one, are not so well-resourced and the applicants, and their solicitors, depend upon these proceedings being heard and determined along with one or more of the proceedings run by Alexander Law in order that there be medical evidence at the final hearing.
  4. [4]
    One of my primary aims in managing all the proceedings was to ensure that they would come to a final hearing in an orderly way, so as to prevent a multiplicity of decisions which would potentially involve different factual findings on the same or very similar expert evidence; different factual findings as to what the same decision‑makers did, or did not, take into account in making decisions, and different legal conclusions as to whether or not the decisions were lawful having regard to the provisions of the Judicial Review Act 1991 and the Human Rights Act 2009.
  5. [5]
    There is no realistic prospect that all proceedings could be tried together.  After several reviews of all the proceedings, I ordered that Johnston, Witthahn, Baxter and Sutton would proceed to final hearing starting 30 May 2022, while the other eight proceedings would essentially await determinations (and appeals if any) in these four proceedings.  These four proceedings were chosen because there were common factual and legal issues; common witnesses, and because the applicants in Sutton would rely on the expert evidence in Johnston, having none of their own.
  6. [6]
    On 23 February 2022 the applicants in two matters which were not to be heard on 30 May 2022, Hunt and Ishiyama, filed applications challenging the CHO’s refusal to provide reasons for his decisions pursuant to s 33 of the Judicial Review Act.  In those matters, and in Baxter, the CHO refused to give reasons on the basis that his decision was not “a decision of administrative character” but rather a decision which was legislative in character. 
  7. [7]
    I heard that application in March 2022 and delivered my judgment in April 2022.  There has been an appeal from that decision which will be heard in the Court of Appeal on 27 July 2022.  I suspect the significance of the decision about this point is not so much whether or not the CHO gives reasons for his decision, but whether relief under Part 3 of the Judicial Review Act is available to the applicants in their challenge to the CHO directives.
  8. [8]
    As already noted, the Baxter proceeding only concerns a directive made by the CHO.  The applicants in Baxter are represented by the same solicitors as the applicants in Hunt and Ishiyama, but did not join in the challenge to the character of the CHO’s decisions which I heard in March.  Undoubtedly though, the decision about that issue will affect the relief which can be sought in Baxter (Part 3 of the Judicial Review Act).  Thus, on 18 May 2022 all parties to Baxter submitted that it ought not to proceed on 30 May 2022, but should be adjourned and heard some time after the appeals in Hunt and Ishiyama are decided.  Accordingly, on 18 May 2022 I adjourned the final hearing in Baxter.  To some extent this disturbed the rather delicate balance which had been struck in selecting the four cases for hearing on 30 May 2022. 
  9. [9]
    As to the remaining three proceedings listed for 30 May 2022, there was no challenge to any CHO directive in Witthahn or in Sutton. 
  10. [10]
    Both the applicants and respondents in Sutton wished to go ahead. 
  11. [11]
    Part of the Johnston proceeding challenges a directive given by the CHO.  However, the remainder challenges a directive given by the Chief Executive of Queensland Health.  The Crown’s position was that the issues in Johnston should be split (r 483 of the UCPR) and that part of Johnston which challenged the directive given by the Chief Executive of Queensland Health should proceed on 30 May 2022.  The applicants in Johnston did not oppose that course, providing the issues for determination could be clearly defined, and they subsequently were.
  12. [12]
    Counsel for the applicants made three points as to why Witthahn should be adjourned to be heard with Baxter.  The first was “because some of the evidence is particularly directed towards the particular context in which transmission might occur, and so Witthahn and Baxter both deal with a health setting, and so there are discrete issues which would be irrelevant to what happens with Johnston …” – t 1-11, 18 May 2022.  I accept that there will be common evidentiary issues in Witthahn and Baxter. 
  13. [13]
    All the applicants in Witthahn are also applicants in Baxter.  Hearing the proceedings on separate dates means the applicants common to Witthahn and Baxter may have to give evidence twice.  However, I do not perceive their evidence to be particularly controversial.  The experts in Witthahn and Baxter are the same, and may have to give evidence twice.  The issues upon which they give evidence will be similar, although not identical.
  14. [14]
    None of those matters is desirable.  However, the more serious difficulty is not so much the fact that witnesses give evidence twice, but the possibility that there might be inconsistent determinations on that evidence.  Counsel for the applicants put this forward as his third point.  In fact the same or similar problems arise if the hearing in Johnston is split, yet there was no objection to this course.
  15. [15]
    There can be an amelioration of the difficulties raised by the first and third points if the hearing in Baxter (and the second hearing in Johnston) are managed so that they do not take place before the decision from the 30 May 2022 hearings (and any appeals).  In that sense Baxter and the second part of Johnston will be in a similar position to the eight matters which have not so far been listed for hearing.  It is anticipated that the same experts will give evidence in most, if not all those cases, on similar topics to those they will address in Witthahn and Johnston.  Some of the decision-makers may also have to give evidence again.  However, it is to be hoped, and perhaps expected, that the issues in the cases heard subsequently to the 30 May 2022 hearings will, at least, substantially narrow after the first cases are authoritatively determined.  That is, it is to be hoped that the cases heard on 30 May 2022 will perform as ‘test cases’.
  16. [16]
    The second point raised by the applicant’s counsel was in relation to utility.  The applicants seek discretionary relief.  Where they are bound both by directives from the Chief Executive of the Health Department, and the CHO, there is an argument available to the respondents that, even if the applicants were to succeed in their challenge to the directives made by the Chief Executive of Queensland Health, there would be no utility in a declaration to that effect where the applicants were bound by the CHO directive.  I accept this is a valid concern.  Fundamentally the problem is caused by the applicants in Baxter and Witthahn starting two proceedings rather than one.  It applies equally to splitting the hearing in the Johnston proceeding and the applicants do not oppose that.  No doubt the way the matters have been scheduled for hearing is a factor which can be taken into account in exercising this discretion.
  17. [17]
    In a perfect world, hearings could be organised in a way which meant that all three problems identified by counsel for the applicants would not arise.  In fact if Baxter could go ahead on 30 May 2022 those problems would not arise.  However, in making the orders I did on 18 May 2022, practical considerations as to the difficulties of ever having a set of cases go ahead to final hearing overwhelmed these other considerations.  Considerable time and resources had been devoted by the Court and the parties in all 12 cases to reach a position where four cases were scheduled for hearing on 30 May 2022 and the other eight cases were happy enough to await the result of those hearings, and perhaps appeals. 
  18. [18]
    Once Hunt and Ishiyama appealed my April decision, Baxter could not go ahead.  Sutton wished to go ahead, but had no medical evidence.  If the hearing in Witthahn were not split from that in Baxter, and/or the issues in Johnston were not split, no cases could go ahead on 30 May 2022.  They would all have to await a hearing date after delivery of judgments in Hunt and Ishiyama in the Court of Appeal.  In the time between now and say, August 2022, matters might arise which might be relied upon by various of the parties as the basis of another adjournment application.  The directives challenged might change again.  The COVID-19 virus might change again.  The parties in the eight adjourned cases may become unwilling to wait further to have their cases heard.  There is simply no certainty that waiting until say, August 2022, will mean that the ideal set of four cases could once again be heard together, and before the other eight cases.
  19. [19]
    This is against a background where these matters first came to the Court in September 2021, supposedly as urgent.  The history of my attempts to bring the Johnston and Witthahn matters to trial is set out in another judgment delivered today in Witthahn.[1]  As societal and medical attitudes to COVID-19 have changed, and as the disease itself has changed, there has, it seems to me, been less and less will on the part of all of the parties, but particularly the applicants, to go ahead promptly to a final hearing, although this position has never been made express.  Meanwhile the State of Queensland employs several hundred workers who are either suspended on full pay, or on special duties, because they will not have a vaccination against COVID-19 and the State has given undertakings not to act adversely to them until these 12 proceedings are determined.

Footnotes

[1]  [2022] QSC 95.

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Editorial Notes

  • Published Case Name:

    Johnston & Ors v Commissioner of Police (Qld) & Ors; Witthahn & Ors v Chief Executive of Hospital & Health Services & Director General of Queensland Health & Ors; Sutton & Ors v Commissioner of Police (Qld) & Ors; Baxter & Ors v Chief Health Officer & Ors

  • Shortened Case Name:

    Johnston v Commissioner of Police (Qld)

  • MNC:

    [2022] QSC 96

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    26 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Witthahn v Wakefield (Chief Executive of Hospital & Health Services & Director General of Queensland Health) [2022] QSC 95
1 citation
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Cite 1 - [2022] QSC 95

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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