The Government of New South Wales, Australia, is facing legal action over mandatory Covid-19 injection orders. In the legal cases of four plaintiffs versus Health Minister Brad Hazzard’s “vaccine” mandates, the Supreme Court of New South Wales gave directions on Thursday, 9 September 2021 and will hear these cases with “strong public interest” at the end of the month.
Under the order, authorised workers from several local government areas (“LGAs”) of concern have until 19 September to get “vaccinated” before they are allowed to leave their local LGAs for work.
Belinda Hocroft, a police officer who is challenging the rationality of the “vaccine” mandate, asked the New South Wales Supreme Court to invalidate a law preventing her from working outside her LGA before she has one dose of a Covid-19 injection. Two others, Al-Munir Kassam and Natasha Henry, are challenging other elements of “vaccine” mandates. A fourth plaintiff, Sergey Naumenko, is challenging micro-chipping and is also seeking similar orders.
During a directions hearing before Justice Robert Beech-Jones on 9 September, the court heard that three of theses cases were challenging the public health order which requires certain workers to be vaccinated before they can return to their jobs. More than 50,000 viewers at one point tuned into a YouTube stream of the matter, a sign of the massive public interest.
Common between all three of Hocroft, Kassam and Henry’s cases is a claim that parliament would not have intended to give the health minister “the powers to breach bodily integrity” without clear legislative indication.
As these three disputes are similar, in that they challenge the New South Wales mandatory Covid injection, the judge directed that they be heard together in the Supreme Court on 30 September and 1 October.
In the fourth case of Naumenko, the state is applying for his challenge to be dismissed because of what it referred to as “significant problems” with the case including not naming a defendant. The judge will assess this case on 30 September.
Video: Al-Munir Kassam v Bradley Ronald Hazzard, Directions Hearing of the Supreme Court of New South Wales, 3 September 2021 (start 11:12 mins)
Below is our rudimentary transcript of the directions hearing. Of course, E&OE and added emphases are our own. If you would like an official court transcript you can order one HERE.
09:20 Yes well, I’m going to call through the matters just to see confirm your appearances in the matter of Hocroft and Hazzard, Ms Ernst I believe you appear for the plaintiff?
And Mr Kirk you’re for the state parties?
Yes, this morning.
All right, in the matter of Henry against Hazzard Miss Plane you appear for the plaintiff Miss Henry? All right. So, I think … Yes, thank you Mr. Harkis. And in the matter of Kassam and Hazzard Mr. King you appear for the plaintiff with Miss Rossetti is that correct?
If the court pleases, yes.
Thank you. And Mr. Naumenko can you hear me all right you appear for yourself in your case, is that right?
I am present, yes.
Thank you. I look to you Miss Davidson you appear for the commonwealth in the Kassam matter is that correct?
I do, thank you.
Thank you. Right. Now, Mr. Kirk is there anyone I have instructions do you have instructions or do you know if anyone does to for the state to intervene in Mr. Naumenko’s case?
Your honour, I don’t have those instructions but I suspect if it would assist the court, I could readily get those instructions and Ryan may take it. I think that I’m briefed in relation to that matter to the extent of the state interest nature. I’m getting significant feedback so perhaps I could make them usually reports for people to turn off their phones if they’re not speaking.
If anyone who’s got access, yes is that better, it’s better for Mr. Naumenko can you hear me?
Yeah, I can hear you much better now.
All right. Now, can you just hold on for a second, I’m going to deal with the other three cases and then I’m going to come back to yours all right?
Now, Mr. Kirk I’m going to start with you because there’s a few common things in the case and one of them is you what’s the position so far as the three matters of concerns so far as you know?
12:02 Yes. Could we perhaps start with the Hocroft matter because that’s the simplest one? So, that’s the one in which my friend Ms Ernst appears led by Mr. Kenneth. Your honour should have received, sent a few minutes ago, some short minutes proposed by my learned friend Liz Ernst for the plaintiff in that matter. Do you want to have those, it’s just got two orders?
Don’t have them. Can you tell me what the orders are?
12:26 I can. The first order is that the plaintiff for granted leave to file and serve the expert report of professor Catherine Bennett dated 8 September 2021 and we don’t impose that order. The second order is that the defendant produced to the plaintiff by 10 am on Friday 10 September 2021 the documents responsive to the notice to produce issued on Wednesday 8 September 2021. We don’t propose that order on the understanding, of course, that it’s not taken to require production of documents subject to claims for privilege or public interest immunity consequent on those orders we would seek a further order, namely: that order three made by your honour on Tuesday which require the defendant to file and serve any evidence he wants to rely on by 12 noon tomorrow be amended to read 4 pm tomorrow that is to enable us to deal with the report of professor Bennett and I understand, I’ll be corrected if I’m wrong, that that order is not opposed by Mr. Ernest. Now, on that basis your honour, the provisional listening for the matter for next Thursday, for our part, could be made unprovisional, that is to say we would be able to meet the timetable for a hearing on Thursday. The final point I’d note about that case just was we’re dealing with that case just a procedural matter experience with these cases suggests that a great many people may wish to view them. So, I just wanted to raise that issue for the court’s consideration as to the best way to enable that to occur without having lots of people potentially having microphones on and so forth but it’s just a practical issue.
14:13 Well, I’ll just I’ll come back to all those other matters. I’ll just raise that at the outset that for these cases the parties, the only parties, people who get access by the AVL link will be the legal representatives. But the AV public the AV cases will be streamed by the court’s website and so everyone will have access. That way before I make any directions about Hocroft I want to find out generally what’s happening with the other two matters because I do have a concern about that listing date now for Henry. I have a set of short minutes prepared by your side which involves proposal to fix the matter for hearing on the 30th of September and the 1st of October
15:01 Yes, that’s right. I say that so just to explain that we amended in a marked up form some orders proposed by my learned friend Mr. King for and we propose that those orders also be made in the Henry matter and that the two matters be heard and travel together because as your honourable looks seen from the table, we sent on Tuesday there’s a degree of significant overlap, by no means complete, but significant overlap, for example, was an issue raised about section 51 23A of the Commonwealth Constitution. So, it’s saying to us those matters could conveniently be heard together. I note that in the Kassam matter which involves the Commonwealth the Commonwealth is not a party in the Henry matter, say, that I don’t know of course whether it would seek to intervene for the Commonwealth attorney would seek to intervene. Miss Davidson, I have since learned is not available on Thursday 30 September and has proposed that the matter instead be listed on Friday the 1st of October. The two matters I should say be listed on Friday the 1st of October and Tuesday the 5th of October Monday the 4th being a public holiday we can accommodate that if needs be. I will just add this final further point on timetabling. We suggested two days on the premise that the two matters are heard together because that seems safer. If as it turns out, for example, Henry is to be pushed off until later, and I don’t know what my friend’s position will be in the Henry matter, then it may be that we can do the Kassam matter in one day. But that would need perhaps input from Mr. King learning Miss Davidson as to whether that was possible or not.
16:53 All right. Now, before I come back to the plaintiffs what I want to know is the difficulty with that, those proposals, are this would involve two different judges. Considering I know Hocroft is a narrower challenge, but considering very similar issues across all three cases and that’s the matter that concerns me. Why can’t all three be heard together?
17:22 The only difficulty with that, and we have no issue with that per se, the only difficulty with that is just timing in that more needs to be done in Kassam and Henry matters in two senses. First, I understand, I think, the evidence might be complete for the plaintiffs in Kassam, although Mr. King can confirm that, I think the evidence is not complete in Henry. In any event we would need to put on evidence for the state I don’t know if the Commonwealth would put on evidence in Kassam. There would be a degree of overlap in our evidence and it may not be much more extensive but we would need to think about that and, to be frank, I doubt that we’re going to be in a position to be sure that we’ve got all our evidence on for both of those other matters by next week.
18:17 Well, that’s it. That’s what I’m wondering about. I mean, I’m wondering about pushing that over and pushing the other one a bit forward. I realize miss Hocroft has a particular interest, given her position, but I’m equally concerned that having two judges looking at the same thing within a reasonably short period of time is just unsatisfactory, quite frankly. And so, what I was wondering was about moving, assume and I have heard this without hearing from Mr. Harkis and Mr. King or Missourians, was about moving because Kassam and Henry quicker and putting Hocroft back. Bearing in that was the first thing. Could I just ask there was an originally when the matter Kassam was before justice Sacco? There was discussion about referring questions of law to the court of appeal was everybody gone or if this, I don’t know what the state’s attitude to that was and I’ll hear from Mr. King about that.
19:28 Shall I perhaps just address that?
If you can address that now and I’ll this, come back.
19:34 Yes this. Indeed, you’re on it yes, that that issue was raised. The plaintiff in that matter sent out some republic, sent us in the commonwealth, some proposed questions on, I think Tuesday morning, the questions, and I’m not saying this critically, but the fact is that the questions, and I read them, essentially picked up the entirety of the case so there wasn’t any narrowing down it just came down to: is the plaintiff or are the plaintiffs entitled to the relief they speak? There’s no actual narrowing of the case. That led us to respond that the best way to handle these matters, in our view, is just for the claim to be heard in its entirety without an attempt to state questions or anything like that. There is a range of evidence that’s been put on by the plaintiffs in the Kassam matter. I don’t think cross-examination, if any, would be required on our part. But I can’t currently rule it out. And it is possible that the other side might wish to cross-examine the opponents of affidavits that we put on because we will be putting on evidence in the in the Hocroft manner from a deputy chief health officer. And it is conceivable that they would want to cross-examine. So, for our part first, for issues because of the need for evidence and possible cross-examination we would respectfully suggest it’s not an appropriate matter to go to the court of appeal. Secondly, and with respect and to be frank, we do not think the issues raised are such that they should be sent to the court of appeal first rather they should be addressed in a respectable submission by the by first instance judge. They are not sufficiently targeted, confined or, if I might be a bit tendentious, meritorious as to be referred to the court of appeal and our respectful submission.
21:29 Yeah well, certainly won’t be getting into their merits today Mr. King I’ll start with you.
What’s your position on firstly the proposal to have it listed at first instance urgently as opposed to what, I think, was discussed about referral of questions of law to the court of appeal? oh yes you want to know that. Can I just say this: I read the pleadings and I clearly there are questions of law in there but I must say a lot of them are also mixed law in fact my first impression.
22:07 Your honour, it is obviously a matter of impression for you but our respectful submission is having regard to like matters in the past and insurance cases, for example IED, that have been referred to the court of appeal in such matters that it would be makes sense to have questions and law so referred simply because more public interest points and if your honour has a copy of our draft list of questions?
22:40 I don’t actually. Let me just have a look on the file I do have a look for them.
22:44 They’re attached to Mr. Nicholas’s affidavit that was last night.
22:54 Mr Nicholas. You may, I may not have that but can I just indicate there are three questions.
Yes, Nicholas, I don’t have it. No, I don’t have it. What’s the date of Mr. Nicholas’s affidavit?
23:14 Yesterday’s date, your honour.
I’m sorry I don’t have it. So, just tell me what the questions are.
23:21 The first is one the order number two of the minister constitutionally invalid that’s on one of two grounds: that the national plan of the Commonwealth, to which the state is a party, offends the constitutional protection in 51 30 20 51 23 capital against an enforced civil conscription; secondly, in the alternative but on the same point if it is suggested that that constitutional protection is not a guarantee that binds the states nonetheless is that the same effect in this case because the national scheme is a the national plan is a joint scheme and there’s authority for that proposition the an second. The second question is simply one of inconsistency between the Australian immunization register act 2015 which sets out a mode of evidencing the national dosage rate adopted by the states and an inconsistency between that and the minister’s health order. And the third point is a question of power for the minister to make the actual order under section 7 of the Health Act and we say that read consistently with the principle of legality set out by the High Court in Cocoa and other cases it is not authorised that in any event the …
25:00 But is that a simple excess of power point or is there something more to it?
25:04 That is a simple excess of power point, your honour. Although we did prepare a draft statement of facts, as requested by Justice Sachar, which is an entire reflection in effect of the statement of claim which is the reason we prepared the statement of claim in the first place and having regard to precedence in other cases, such as the PBS case in the high court. So, I will say that place to uncontested statements by the New South Wales parties the Wales order is invalid as to both its term and its and its extent and it’s because of its failure to identify relevant public health areas and there is a reasonable, and as Mr. Kirk correctly says and we acknowledge this point, there is a legal unreasonableness argument and to that extent there’s a degree of overlap between all three cases. That was his comment on a in the transcript we read it yesterday.
26:13 All right. Now, the three questions you identify that they wouldn’t resolve the entirety the proceeding, is that right?
26:23 The questions of law would resolve the entirety of the proceedings.
26:28 I’m sorry, if they were, I’m sure if they’re answered in your favour but if they were answered against you there’d be parts of your claim left, I take it?
26:35 That’s correct.
26:41 All right. And your own man one other thing, I do apologize for making this intervention, I’m actually in the middle of a hearing before Justice Parker which is now about to start, indeed may have started one moment ago, and I would respectfully ask if Miss Lucity could now take my place.
Can I tell your honour that Mr. Kirk and I have had very fruitful exchange of short minutes and we’ve also provided you under our submissions about the short minutes. There’s no difference between Mr. Kirk and I. We would ask your honour to point the 1st to 30th of September if your honour is otherwise prepared to list the matters?
I appreciate the Miss Davidson may have difficulty but, as your honour knows, things can fall away and the you issue is one of the public interest. The only comment I’d make about the short minutes is this: Mr. Kirk has not included a requirement that the defendants file, a defence we have in a sense that the Murrah procedure here, we’ve deliberately set out the facts and we really do require a defence being filed for the defendants and we said the reason why that can’t be fitted in with our program.
All right. Now.
Otherwise, defence may be excused. Adjourn.
27:57 Yeah, can I just ask you two quick questions before you go. First, do you firstly have any dividing with the Hocroft matter, if I heard that was heard at the same time?
28:09 No. your honour. We would respectfully adopt that having regard to the overlap point made by Mr. Kirk.
All right, and secondly how much can you cope with a bit with us with a concertina to move it a bit forward?
28:21 So I can, we otherwise can do it from the 28th of September.
28:25 All right, all right. Otherwise, thank you. Well, thank you for your time, Mr. King and I appreciate that you’ve got somewhere else to go. So, if I come back to, I’ll come back to Ms Rossetti. Thank you.
Thank you very much excuse me.
28:38 Yes. Mr. Harkis, sorry Dr. Harkis?
Yes, your honour.
28:46 What’s your client’s position on where we’re at? I’ve got a set of short minutes that, I think, represents, I think it’s the state’s, proposed orders in respect of your case taking it up to the 30th and the 1st of October.
29:02 Yeah. So, we’re at where at odds in that regard, your honour. We need time so that we can finalize our evidence. I just to be up front, you’re on a weird, we are proposing that the matter be fixed for the 14th of October. The reason for that is as follows. First of all, I should concede that there is a significant issue which is apparent in all three proceedings, that is to say that it is absolutely clear that the lawfulness or the legality of the section 7 public orders is a central main point of all three cases. I anticipate that all of the plaintiffs are going to be making extensive arguments as to how section 7 is to be interpreted and what that permits the minister to do and reviewing the authorities the principle of legality which is specifically pleaded in one of the other matters and the presumption that parliament would not have intended to give the minister the power to bridge the right to bodily integrity without clear legislative authority is likely to be the primary argument. That is to be advanced by all three plaintiffs so that certainly is a common issue and if it is resolved in favour of the plaintiffs then that will dispose of the matter. But, in the event that that it does not then this is where the parties or the plaintiffs and their respective proceedings significantly diverge, from my reading of the Hocroft matter, that it pretty much doesn’t go further than that particular issue. And I’ve heard this morning that they are putting on expert evidence so it is likely to be issues of mixed law and evidence in relation to the necessity of the mandatory vaccination order. In terms of the Kassam matter, I’ve looked at those pleadings and compared them with the plaintiff Henry and others. There is more of a degree of overlap there. In particular, there is an implicit constitutional issue that is raised by the pleadings in the Henry matter and it’s explicitly raised in the Kassam matter although it is pleaded as an affirmative constitutional bridge by the minister. In the Kassam matter, whereas we rely on it more so within the context of the statutory interpretation arguments and it is largely a legal issue and there’s no institutional breach it’s more of an issue of what exactly parliament has permitted the minister to do in this case, which is why the commonwealth is not named as a party in our breath healing whereas it basal is in the Kassam matter that’s obviously a significant difference the other matter. I wish to raise, your honour, is that going beyond that there is significant divergence because the plaintiffs and Henry have raised grounds of improper purpose which will require the court to draw inferences in light of submissions made from the evidence as to the state of mind of the minister at the time he made this order. We’ve also alleged that he took into account the relevant considerations, failed to take into account relevant considerations. We have alleged breaches of a number of rights including breaches of privacy, which have not been alleged in the other matters. We have alleged a rich of natural justice which is completely apart from what any of the other parties have alleged. There’s also issues of proportionality and reasonableness that are specifically pleaded. You want to mention the fact or raise the issue as to whether there are pure questions of law here? Well, to a certain extent that is true but because of the nature of the case a powers under the Public Health Act, and also the specific orders that the minister made -which is an order mandating compulsory vaccination – that necessarily raises questions that can only be answered by experts. And so, that necessitates questions mixed of law and fact, in particular medical expertise, that will really force the court to consider mixed questions of fact in relation to the issue of reasonableness and also legality. Now in that regard the plaintiffs. In my matter have engaged within the last 24 hours two international experts. We have briefed them to prepare their reports. We would ask that they’d be given 14 days, so their case a can be finalized and served, and that really is the primary reason that we seek a trial date of 14 October. Contemplating that the defendant will no doubt wish to reply to the allegations. Because the reality is, that what is going to be a central issue in this case and evidence from these experts that’s going to be induced on this issue is as to the safety and efficacy and ultimate reasonableness of compulsory vaccinations. So, we anticipate that they will need time to respond to our expert evidence in that regard.
34:19 Well doctor, you understand that the problem I face is: that I’ve got Miss Hocroft who wants to go back to work because she challenges an intimate water; and I’ve got three of you all, as you say, with section 7 front and central; and, then of course, as I anticipate there’ll be a threshold question as to whether any expert evidence can be received de novo as it were or the question is what was available to the minister at the time. So, that’s the difficulty I have and I’m about to hear from Ms Ernst but I’m sure she’s going to beg me to keep the 34:19 well date of the 16th. This I mean what the proposal I think is for you to have your evidence on by next Wednesday what are the x what are the international experts going to tell me?
35:26 They’re I’m sure immunologists, your honour, or and that’s not immunologists and vaccinologists. They are going to opine as to the safety and the efficacy and necessity of vaccinations, both upon the individual and also as a mass public program.
35:46 Yes, all right, all right. I might hear from Miss Ernst now. Miss Ernst?
Thank you, your honour. I appreciate the position your honour is in android anticipates my submission. My client does have considerable concerns about not proceeding to a hearing. As you’ve identified she’s unable to attend work. The order came into effect today without complying with the conditions we say are invalid. My client’s taking great care in these proceedings to cast her frame as narrowly as is program appropriate and she’s cons having regard to the resources available to her. So, while I appreciate the resources of the state and the resources of the court must also bear upon your honour’s evaluation, she’s quite concerned about the length of time that might be incurred in getting the claim of a much wider ambit than she has deliberately granted her own claim. and secondly …
36:53 Just hang on. We just lost you a bit on your I think which part, you just repeat that? I’m sorry I evaluation, heard you but we had a bit of trouble with the court reporting.
36:56 mate please my client is concerned about the cost consequences of participating in a claim of a much wider ambit than the claim that she’s deliberately crafted narrowly and carefully. Having regard to the court limited resources, one proposal, your honour, might be for my client’s claim to be heard first and then the other proceedings to be heard together separately. I appreciate what your honour says about there being two separate judges. But nonetheless the second set of proceedings no doubt the parties would have regard to the decision made earlier and then it would be for them to submit that reasons of committee if it were unfavourable to the plaintiffs did not require it to be followed. But the court would not be entirely deprived of the benefit of those and from my client’s perspective having regard to the fact that both she and the state are ready to run the claim she would be able to have it brought before the court and decided with the expediency that we submit the case requires.
37:57 Yes, thank you.
38:01 Your honour, yes sir. Could I just prep to assist you with something and truly directed to the position of a millennial friend Dr, Harkis in the Henry case which is a little surprising with respect in, I confess I’m working off a version of the health order as of Monday I think and we all know that it’s subject to regular change in response to the dynamic circumstances of the pandemic, but at least on the Monday version pursuant to clause 70.5 aspects of, and without getting bogged in the technicalities, but aspects of schedule 1 are due to be repealed at the beginning of 1 October 2021. The effect of which is that significant protections applying both in greater Sydney and then in the 12 LGAs of concern will be lifted. Now obviously that is subject to possible change and extension. But that is what the order currently says it’s a little odd in that circumstance that Dr. Harkis’s client is so keen to have the matter stood over for hearing in mid-October. From my client’s perspective it may be useful for that to occur. But I Harris’s just felt I needed to draw that to your honour’s attention because it really does militate in favour of the three matters being heard together and favour resolved if the plaintiffs really actually came to have the matters determined by the court.
39:36 All right Mr. Kirk. So, one thing note that just dealing with Miss Ernst’s client’s position concern about costs, I think can be accommodated because on in on any of you if I do list all three together it’ll be understanding that as it were, I won’t use the word fault, but it wasn’t their fault. I am concerned that there could, and you may not be able to get instructions on this, that there would be no adverse approach taken by her state employer. So, her, I’m not suggesting there is but no I I’ve just read her affidavit notice, she’s got a concern about her employment. I think the number one concern is she can’t actually do her able to do a work. But I don’t I was wondering if that could somehow be addressed?
40:37 Could I just do, sorry, can I just address that briefly? I am not instructed by the commissioner of the police who’s doing that, but so I do have some relevant information as has been publicly reported, and forgive me if I get the details wrong, but the commissioner of police yesterday, I think or possibly the day before, issued a formal direction that from on or about the 30th of September to continue to perform duties in the police force of New South Wales you must be vaccinated. You must have had what’s your first vaccination. Now that that is made not pursuant to the Public Health Act it’s pursuant, I think, to the WHS act perhaps other powers. But there are other issues that players regard Ms Hocroft than the issues in this case.
41:26 Yes, I understand that all right. So, what I, Miss Davidson I do apologize, I heard Ms Davidson your fourth defendant and as I understand it your regard principal interest will be probably be the constitutional / federal legal questions?
That’s correct, your honour.
There’s a likelihood they wouldn’t be agitated until the Friday anyway isn’t there? I can tell you my selfish interest is that, put it this way, the long weekend is looking bad for me and I would like to keep that for what long weekends are for – which is to write judgments. That’s my personal concern but you, I mean, I realise you couldn’t be there on a Thursday but the principal issues you’d be concerned about wouldn’t really be agitated I would expect to the Friday, would they?
42:24 Well, if the hearing could be organized in such a way that they could be engineered your own. My personal difficulty is I have a two-day court of criminal appeal hearing on the Wednesday and the Thursday, that I can assure your honour is not going to go away despite Mr. King’s prospect, so it, yeah, if the position were able to be such that the section 23a constitutional issue was agitated on the Friday such that I could be present for those arguments and you make the submissions that the Commonwealth would seek to make in respect of that issue, and you’re right the Commonwealth submissions will be confined, then I wouldn’t have any difficulty with that, your honour. It would simply be, obviously, that the Commonwealth wouldn’t be able to be represented by council on the first day and that would be fine if the arguments were to be confined to the section 7, the other section 7 issues, if I might put it that way.
43:24 Yes, thank you.
43:29 Your honour, sorry, I’m sorry for interrupting. But may I just reply to you?
43:35 I just want to be clear that, in light of what my learned friend Mr. Kirk said about being on submission, the reality is that this is an ever-evolving pandemic situation with public health orders being amended, anticipated to be made, we don’t know what’s going to happen in the coming days. What we do know, however, is that public orders have been made in the past and that has formed the basis of allegations of unlawfulness on the part of the plaintiffs. The other thing I wish to emphasize is that my clients will be prejudiced if this matter is moved in haste because of the need to finalise our expert evidence. I Leonard appreciate that the Hocroft matter is different and that they want to have it heard as quickly as possible, but there’s the possibility that the Hocroft plaintiff can take leave and Hocroft, obviously she’ll be prejudiced in that regard, but the plaintiffs do rely heavily on the expert evidence and we need to be given time to have that finalised, your honour.
44:44 Well, you do. But you filed a case, you filed this case, and you filed it in the middle of a pandemic with a moving legal regime and by 14 October. We may be talking about a completely different case in a completely different environment and those are the consequences of filing a case and getting it on. And I can’t, really, I cannot, see any other sensible way to balance the varying interests. and I’ll say this a bit in a bit more detail shortly, than having them heard together. I think, and I think particularly, the person who’s probably most affected by that is miss Hocroft. But if a plaintiff files a case, a broad challenge, to current regulations, as your client did in the current environment, they need to be ready to get it on and get it on quickly and they probably need to be ready when they started. The position is as follows: having heard the submissions and reviewed the pleadings in the Kassam matter I would decline to refer questions of law to the court of appeal principally because I’m not satisfied at the moment there are sufficiently identified pure questions of law that would resolve the bulk of the issues in that case. It seems to me instead that what would occur is certain confined questions of law would go to the court of appeal. But that would leave some significant questions of mixed fact and law to be determined at first instance. Otherwise in relation to all three, given the changing legal environment, the changing pandemic environment, the resources of the parties and the court, and in particular the strong public interest in the avoidance of there being differing, first instance judgments on the same fundamental questions concerning the scope and power of section 7 of the Public Health Act, I think all three matters have to be heard together. The only way in that can really occur is them to be heard on the 30th of September and the 1st of October. In that regard, I note that will make, that will cause a particular difficulty for Ms Hocroft who’s filed the most narrowly focused challenge and right and has particular employment issues that affect her by reason of the operation the public orders health act orders before then. One of the concerns differing. First costs, and I think that is a matter that could ultimately deal with and shouldn’t avoid it being heard on those other two days. I appreciate otherwise that her case could be heard in an earlier time. But as I’ve said given the public interest requires that there be not be competing judgments concerning the scope of section 7. I don’t think that circumstance can be avoided. The other matter concerns the Commonwealth in that there, who’s a party to the Kassam proceedings, that can be accommodated by it being understood between all parties that issues concerning potentially consistency with federal law or implied rights or express rights under the Commonwealth Constitution are not to be dealt with until the Friday. I’ll shortly come to deal with directions in relation to these matters, but I’ll note this: there will need to be a directions hearing earlier in that week, I’d say most likely on the Tuesday morning at 9 30 in which they’ll need to be confirmation as to whether the matters will proceed whereby evidence in one, each, matter is evidence in the other. And secondly, whether there will be cross-examination and its length. Ms Ernst, I realize that’s a difficulty for your client. What I’m going to invite you and Mr. Kirk to do is to reconsider whether you want to adjust your time respective timetables to meet that. If what Mr. Kirk indicated to me earlier about the agreement about those three particular orders is the position, then you can build those orders into a set of short minutes designed to reflect that. In the Kassam matter, Mr. King raised the issue of defence, there deputy with that?
49:51 Yes sir. Can I just address that briefly? Before I do so can I also just address briefly issue with the Hocroft matter? We, I’d indicated earlier that we sought an extension of time to file our evidence before pm tomorrow. In light of what, your honour, it’s now ordered it would seem appropriate and reasonable that we now bring the time for filing our evidence in Hocroft matter into line with the other matters which if you’re I was inclined to adopt the timetable we suggested for the other matters. That would mean we file our evidence on Wednesday the 22nd. Now the reason I suggest that, is not because we want to catch anyone by surprise, but it will, as I indicated earlier, there will be an affidavit from, there’ll likely be an affidavit from a deputy chief health officer. If one doesn’t worry too much about issues of form and so forth it would be appropriate that there’d be one affidavit over from that deputy chief health officer relied on in all proceedings. Seems pointless to replicate it three times and given that the overlap has to unreasonableness we probably will have the same thing in all three proceedings. So, we’d suggest that, that said, I won’t die in a ditch about it in relation to this. Your honour just asked me about defences. Yes sir, that’s right. It only arises in Kassam. In the Hocroft matter and in the Henry matter it’s been filed as summons and if your honour has a, or reminds yourself of the, form of the statement of claim with great respect to the drafters of it, it’s not really a statement of claim. It is really a summons with one additional material fact, or set of facts, which is that is going to standing articulated in paragraph one. Otherwise, all that it really does is identify the relevant instrument and articulate a whole series of grounds of invalidity. It’s in substance, that’s a substance a summons and the plaintiffs can take it, that no invalidity is admitted by the state in that context. There’s just not a lot of utility in requiring a defence. But that’s it. If your honour wishes us to do so then we can do so. But in interest of time, it would be very brief and not helpful in any event I would sir I would suspect.
52:35 Right. Mr. Seti do you wish to say anything about that?
52:39 The plaintiffs are in your honour’s hands on that issue of the defence. Might I just say something in relation to the plaintiff’s evidence? My friend Mr. Kirk said earlier, on this morning, that he understood that the plaintiffs in the Kassam matter had completed their evidence in chief, it may be something that was said in our submissions yesterday that has led to that belief, and I will have to correct that and say that: that is in fact not correct and that as has been proposed in the short minutes. The plaintiffs do still have some evidence in chief, it will be expert evidence, and we’re going to be in a position to put that on by next Wednesday. So, forgive me for needing to …
53:28 Yes all right. Well, that’s built into the timetable. All right, all right. Okay. Well, I note that having perused the statement of claim I won’t direct that there be a defence in, and I think otherwise, the Kassam short minutes. Are agreed, are they?
53:43 I think so, your honour, yes.
53:47 Is that right Mr. Setting?
53:52 I might just have a split second, your honour. I think so, yes.
Yeah, I want to thank you.
54:01 All right. Now, Ms Ernst. I realize you can tell Mr. Kenneth it wasn’t your fault, blame me. What do you say about Mr. Kirk’s idea of pushing back the time for his evidence? I might add I’d give you until next, you’d then move on to a similar timetable to everybody else as well.
54:22 Thank you. No difficulty with that. Mr. Kennett might not forgive me if I didn’t raise the fact that he’s not available on the 30th of September. He is available on the first so I appreciate your honour had in mind and inverted sequencing.
54:38 I will accommodate that as best I can, as best I can, if and if he can in advance identify some things he wants to happen on the first that he can’t be there on the 30th. I realize you’ll be there but that he wants to do on the on the first then that would be a good idea because I can’t, I mean it may depend on how much evidence there is. If there’s a lot of evidence then it may be what nobody gets the submissions until the first. It may be that the evidence proceeds reasonably quickly in which case there may be a fair bit of discussion about section 7, for example, on the 30th but that, I know Mr. Kennett reads pretty quickly and I’m sure he’ll turn up on the first and he’ll have the benefit of hearing what everyone else said, as it were, but if you could, if he could once he’s seen the lie on the land, identify in advance any particular thing he wants either restricted to the first or which he says well I’ll need to even though they’ve covered it on the 30th I need to come back to on the first just tell me.
55:53 Okay, all right. Could I just say one more issue in relation to the 30th of September date? That’s the date in which Mr. Kirk correctly identified that the commissioner’s directive comes into force requiring police officers to be vaccinated. I appreciate Mr. Kirk is not brief for the commissioner for police but could I ask that things should be raised at the state level? There is provision for exemptions to be granted by the commissioner so if my client’s case could be considered for the grant of an exemption so that she’s not credited by the holding of this trial on that date.
56:27 All right. Well, can I once would suggest probably your p your instructors should communicate directly to the commissioner but if there’s going to be some kind of problem about some prejudicial potentially prejudicial action taken before the termination of this case then your exercise liberty will apply you content for that Mr. Kirk.
Yes, your honour
56:58 Right. Now, Dr. Harkis. yes, now you’re asking a position difficulty with evidence Mr. Kirk. What if I gave, the best I can probably do is give him a, if I pushed his evidence out to the 17th can you live with that?
57:24 Yes, your honour. Reluctantly, but yes.
57:26 Mr. Kirk can you live with that?
57:29 Yes, all.
57:34 Right. Well, I’ll push I when you say Dr. Harkis you can live with it ‘yeah barely’ all right well, I’ll make the ordering in the Harkis matters will be on the Friday the 17th of September for the plaintiffs knowing that the defendants will already be scribbling away well before then. Now, what I’m then going to ask Mr. Kirk then is if your team could coordinate and send in the short minutes in their final form for all, after everyone’s seen it, for all three matters?
Yes, we’ll do that your own pick up that.
58:18 Now, just two other things. Firstly, does any party have any objection to third party specifically press access to the pleadings? Dr. Harkis?
No, your honour
58:33 Miss play do you have any objection to any?
All right and Dr. Kirk?
No, your honour
58:58 All right. Next. When parties file submissions can they specify at the opening part of the submissions whether they have any objection to third party or press access to the submissions. If there is objection, please briefly identify why. Sorry Ms Davidson I take it you don’t have any objection to any of that?
59:25 No, your honour.
59:29 All right. And lastly, at some stage before the 29th, well I’m going to need a court book as a short answer Dr. Kirk and that may have been your team?
59:41 Yes, that’s probably right.
59:45 A court book and the relevant legislation at whatever times.
59:58 Is there any particular time your honour would want it by? Just looking at the timetable in the Kassam matter, for example, the evidence should be complete by Friday the 24th of September and after that it’s submissions. It may be best if the court book is produced at the beginning of the week beginning 27th September without waiting for the submissions? Yes, because that will just delay things too much.
1:00:25 Yes, that’d be good because I will I obviously want to read it beforehand, all right?
1:00:31 Right, so, I can get the court book maybe on the Monday?
1:00:37 And then if there’s anything extra, I’ll need, I’ll mention it on the at the directions hearing which will be Tuesday 28 September?
1:00:43 All right. Now, accepting everybody’s unhappy is there anything further about these three matters I need to deal with today?
1:00:50 Did you hear one of my instructions, sorry I don’t think so for our parts?
1:01:00 Sorry to cut across. Sorry my instructor just raised one issue, your honour, in relation to the estimated duration of the matter of two days. We anticipated more time have been needed given the extensive legal issues and also anticipating expert evidence may need to be subject to cross-examination.
1:01:16 Right well. If this needs to be further time pushing on into the next week then we, you, raise that on the 28th. But I can indicate it would, that’s how it will work as in if there’s an extra time it’ll be back on the Tuesday.
1:01:34 She wants to please us.
1:01:37 And yes, now Mr. Naumenko that brings me to Mr. Is there any further, anywhere the parties in these three matters wishes to raise?
1:01:47 Your honour, just one I beg your pardon, your honour, only just one matter. The proposed order number one in Mr. Kirk’s proposed short minutes in the Kassam matter.
Yes, that’s already been done, that’s the service of 78 officers.
1:02:04 And I accept that, I accept that, your honour, that order is not necessary.
1:02:07 All right. Well, like I said, Mr. Mr. Kirk’s going to team, he’s going to send up a revised set of short minutes for all three matters and I’m sure that’ll reflect that, all right? Mr. Naumenko can you hear me?
1:02:22 Yes, I can hear you, yeah.
What do you want to do with your case?
1:02:25 I want to get a summary judgment which outline in the document called order judgment so I’m claiming those reliefs.
1:02:40 For my case for my, yeah.
1:02:42 All right. And Mr. Kirk, what’s the position of the state so far as that matter is concerned?
1:02:47 Well, your honour, there are just so many problems with this case it’s difficult to know where to start. There’s no named defendant, there is no articulated legal claim rather there is just a sort of set of aspirational orders which to a significant extent are entirely misconceived, such as, for example, proposed order two that the plaintiff and his immigrant family be exempted from microchipping.
1:03:24 Right. So, stopping you there, do I understand that to be you say that you the state that should be summarily dismissed?
1:03:34 Right. So why don’t I deal with this, why don’t I deal with Mr. Naumenko’s application for summary judgment and any motion the state wants to file for summary dismissal on the 20 on the 30th of September?
1:03:48 It would sound very sensible.
1:03:51 All right. So, I’ll direct that any motion by the State seeking summary dismissal of the proceedings with any submissions in support not to exceed three pages be filed and served by the 23rd of September and made returnable before me on the 30th of September. Mr. Mr Naumenko do you hear that?
1:04:20 No, I don’t quite get it.
1:04:24 Right. Well, he says the State says your proceedings are misconceived. Right now, I’m not going to decide.
1:04:32 What grounds? I mean ground well just …
1:04:35 Mr. Naumenko be quiet please, listen to me. I’m not going to deal with the grounds they’re going to tell you what the grounds are and you’ll have the opportunity. It’s on the 29th one of the things, that one of the 30th of September, one of the things I’ll have before me which I’ll hear at some point will be the State’s contention that it’s misconceived and you’ll have you’ll have your opportunity to respond. All right? Do you understand?
1:05:00 In what? How do I respond and what?
1:05:07 You’ll be able to put something in writing or you’ll be able to address me briefly orally. But the first thing you want to see is, you want to see why they say it’s misconceived. All right? That’s what you’re asking me for. They’re going to put it in writing. All right. Well, I’ll stand over the summons in the matter of Naumenko having made that direction until the 30th of September. All right?
1:05:27 Your honour, just picking up on that matter and being seeking to be practical about it, I wonder if it may be most efficient if we do our subs by the 23rd of September, as your honour suggested, which is a Friday, I think, and then perhaps Mr. Naumenko respond to our subs so he has a chance to see what our arguments are by say that Tuesday the 27th, I think it is, or whatever the dates are but …
1:05:58 All right. Mr. Naumenko did you hear that?
1:06:05 Yeah, I did. Mr. Justice Kirk but …
He’s not a judge. So, what he’s saying is they will tell you in writing by Friday the 23rd of September what they say the problems with your summons is and you can respond by the Tuesday with your response to what they say the problems are in writing.
1:06:32 Okay yeah, yeah.
1:06:36 All right. Well, I’ll direct that any submissions by the plaintiff in response are to be filed and served by 4 pm on Tuesday the 28th of September and that includes by Mr. Naumenko by emailing them to my chambers to my associate. Okay, is there anything further?
No thank you
1:07:10 Well, I thank all the council. Court adjourned.
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This letter or a copy of it, sent to any employer who is mandating vaccines for those not vaccinated, would be a great idea, because the employer is not given blanket immunity from prosecution and would be held accountable if adverse effects occurred , after a person who otherwise refused the vaccines, was injured, possibly restitution in the millions of Pounds.
Although the letter is for Australia, it seems to me to be applicable anywhere and having said that, if you intend to implement it, run off copies and pass them around to everyone else who works wherever you do, who have not been vaccinated, because one person is easy to weed out, but a lot, is a different ball game, especially where Unions are involved too:
DELETE THIS PAGE BEFORE SENDING YOUR LETTER
If an employer is forcing mandatory vaccination in your workplace, the template letter below is a possible way to handle it and put you in a stronger negotiating position. It highlights the responsibility of your employer for your safety and health as a result of a vaccine. The legality of employers forcing employees to take a vaccine is a legal grey zone.
It’s possible that your employer will not provide you with the information requested in this letter. Providing this letter does not guarantee that you will avoid having to take a vaccine. It is intended to remind your employer of their obligations to you and to request information about their decision that may assist you later if you choose to challenge the direction.
Before using the template, please note the following:
You should be fully informed before providing consent to treatment. Ask for that information.
Your valid informed consent must be voluntary and based on disclosure of clear details of risks, alternatives, need, options, side effects, any other possible harm that could be caused by the proposed vaccination and their relevance to your workplace. Ask for these to be specified.
The information the employer would need to disclose needs to be specific to you writing the letter and relevant to you in considering whether to consent or not.
A direction to take a vaccine as a requirement to work must be reasonable. Ask for the reasons.
Rather than refuse the vaccine outright, employees may be in a stronger legal position through trying something like this. Despite receiving this letter and choosing to provide or not provide you with the requested information, an employer might still direct you to get vaccinated or seek to terminate your employment. At this point you should seek independent legal advice from a suitably qualified employment or industrial relations lawyer, and/or assistance from your relevant union.
Please keep in mind that if you agreed to be vaccinated when you were first appointed to your position you may be required to be vaccinated under your contract of employment.
The following template letter could assist you because it shows you are willing to be vaccinated providing you receive information and protection. Some employers may not be capable or willing to provide such reassurance and as a result may not insist on vaccination. Information requested at points 1, 2 and 3 of the letter is especially important and could assist you if you choose to challenge the direction from your employer in court.
Disclaimer: Vaccine mandates in employment law are currently an uncertain and grey legal area. This Information is not to be considered as specific legal advice to be relied on. It comes from various sources and is for your consideration only. If you have any concerns, questions or problems please contact an employment adviser, your relevant union or a solicitor.
DELETE THIS PAGE BEFORE SENDING YOUR LETTER
[INSERT THE DATE HERE]
INSERT COMPANY NAME HERE
ADDRESS LINE 1
SUBURB STATE POSTCODE
Dear [DELETE THIS AND INSERT YOUR EMPLOYERS NAME HERE]
I write regarding your direction for me to receive a COVID-19 vaccine. Before making a decision in this matter, I wish to be fully informed and appraised of all relevant facts. In that regard, I would appreciate you providing me with the following information:-
Whether you are making this request under a specific law or public health order. If so, please specify the specific law or public health order.
The circumstances under which you believe this is a reasonable direction, specifically:
The nature of the workplace (the extent to which I need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
the extent of community transmission of COVID-19 in the location of the workplace, including the risk of transmission among employees, customers or other members of the community;
the effectiveness of the relevant vaccine in reducing the risk of transmission;
my individual work circumstances, including duties and risks associated with my work;
whether you are accommodating for employees who have a legitimate reason for not being vaccinated and the details of these accommodations;
Under what Work Tier (1, 2, 3 or 4) you classify my work according to the below criteria:
Tier 1: employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example, employees working in hotel quarantine or border control)
Tier 2: employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus (for example, employees working in health care or aged care).
Tier 3: there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for example, stores providing essential goods and services).
Tier 4: employees have minimal face-to-face interaction as part of their normal employment duties.
The approved legal status of the COVID-19 vaccine and if it is under experimental or “provisional” approval in Australia.
Details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests including its long term safety, its effect on pregnant recipients, its use for children and its future generational safety along with the data used to come to these conclusions.
The full list of contents of the vaccine that I am to receive, and if any are toxic to the body.
All adverse reactions associated with this vaccine in Australia since its introduction, including deaths and disablement supported by the latest relevant data.
The likely risks of fatality or serious side effects, should I be unfortunate enough to contract COVID-19 after being vaccinated and the likelihood of recovery and long-term side effects supported by the appropriate data.
Confirmation that I will not be under any duress or coercion from you or a representative of your company, as my employer, to force me to have this vaccination including threatened loss of employment.
Once I have received the above information in full and I am satisfied that there is no threat to my health, I will be happy to accept your offer to receive the treatment, but with certain conditions, namely:-
I receive written confirmation that no harm will come to me after receiving this vaccination.
Once the information is provided to me and confirmed by a qualified medical doctor, you will undertake to accept full legal and financial responsibility for any injuries occurring to myself as a result of receiving this vaccination.
In the event that I choose to decline the offer of vaccination, please confirm that:
it will not compromise my workplace position; and
I will not suffer prejudice and discrimination as a result.
[INSERT YOUR PRINTED NAME HERE]
Me: Richard (Smile)
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