Travel Essence Pty Ltd & Ors v Jeannette Young, The Chief Health Officer for the State of Queensland [2020] HCATrans 72 (4 June 2020)

Last Updated: 5 June 2020

[2020] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S87 of 2020

B e t w e e n -

TRAVEL ESSENCE PTY LTD ACN 143 823 590

First Plaintiff

MERMAID 007 PTY LTD ACN 621 539 295

Second Plaintiff

SUPER SERVICES GROUP PTY LTD ACN 617 650 138

Third Plaintiff

PAUL JEFFREY

Fourth Plaintiff

ZALI BURROWS

Fifth Plaintiff

and

JEANNETTE YOUNG, THE CHIEF HEALTH OFFICER FOR THE STATE OF QUEENSLAND

First Defendant

THE STATE OF QUEENSLAND

Second Defendant

Directions hearing

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 4 JUNE 2020, AT 2.42 PM

Copyright in the High Court of Australia

___________________

MR G.O’L. REYNOLDS, SC: I appear for the plaintiffs with my learned friends, MR R.W. HADDRICK and MR D.P. HUME. (instructed by Mahoneys)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear on behalf of the defendants with MS F.J. NAGORCKA and MR K.J.E. BLORE. (instructed by Crown Law (Qld))

HER HONOUR: Mr Reynolds, your short minutes arrived just before I came into Court so I have not quite picked up the dates, the change to dates but I do see that you appear to have accepted that a special case is the appropriate way to proceed.

MR REYNOLDS: Yes, your Honour. Can I deal with three primary matters? That is the first one. We do not have any problem with the special case, obviously providing it can be agreed. So we are happy to try and do that.

HER HONOUR: Yes.

MR REYNOLDS: The second thing is that the defendants’ submissions raise the question of section 78B notices and ‑ ‑ ‑

HER HONOUR: Yes, I saw that.

MR REYNOLDS: They have been served.

HER HONOUR: They have been served?

MR REYNOLDS: They have.

HER HONOUR: Thank you.

MR REYNOLDS: They also raise a question of a request for particulars, which we got at 8.40 pm last night and a further revised version at 9.00 am today. Now, we have answered that request for particulars. So they are the three preliminary matters. Your Honour will see – I do not know if your Honour wants to go to the directions ‑ ‑ ‑

HER HONOUR: Yes.

MR REYNOLDS: You will see from our short minutes, No 4, that we do not have a problem with the direction (g) and following in the defendants’ directions annexed to their submissions – that is (g) through to (q). The area of contention between us on directions is fairly small. Is it convenient if I indicate what I understand to be the issues in that regard?

HER HONOUR: Just before you do, your short minutes have different timing from the defendants in the ‑ ‑ ‑

MR REYNOLDS: Yes, 1, 2 and 3 are different.

HER HONOUR: Yes, 1, 2 and 3.

MR REYNOLDS: Is it convenient to deal with that, your Honour?

HER HONOUR: I will hear from the defendants later about whether or not there is any difficulty with those proposed dates, but I do understand that there would be an issue about 1(b), that is the service of the documents upon which the border restrictions direction was made, at least as I understand the defendants’ submissions, until after the defence is filed.

MR REYNOLDS: Your Honour, just on that, we note in our submissions although the month is wrong that there have been about half a dozen requests for this since 26 May. It would not be difficult to identify what that material is or if there is any record of it and we cannot get on with the case until we are given that.

HER HONOUR: I must admit I cannot for the present – and I am sure you will explain this for me – I cannot presently see which issue it is relevant to in your statement of claim. I take it generally it is said to be – well, it is actually expressed to be attached to the argument with respect to section 362B and the allegations that there are obvious alternatives. I do not see why the production of documents upon which the Chief Health Officer acted are necessary to a pleading relating to the reasonable necessity test and obvious alternatives. Rather, it looks to me more like you are wishing to say that the documents provided no basis for the necessary opinion at all. Is that where you are heading, in which case it is not yet pleaded, of course.

MR REYNOLDS: Well, it is in paragraph 42, your Honour.

HER HONOUR: I am sorry, I do not see that – 42(a) says it was not made in the exercise of power because on the material there were not reasonable grounds for believing it was necessary to give the border restrictions direction and the particulars given of that is that there were obvious and compelling alternatives.

MR REYNOLDS: They are the particulars we could get without seeing the documents, your Honour.

HER HONOUR: But why would the – the documents are not going to show up alternatives, are they? I mean, the alternatives ‑ ‑ ‑

MR REYNOLDS: Well, they are not, but they will indicate what the grounds were and whether they were reasonable as set out in paragraphs (a) and (b) and also enable us to plead further matters or allege further matters, the usual administrative law grounds relating to that issue, that is what matters were taken into account or not into account, et cetera.

HER HONOUR: But your pleading itself gives as particulars that the alternatives are obvious as they are required to be. That surely negates the need for reference to any documentation. As I say, I infer that you seek resort to the documents because it is desired to say there were no grounds at all for an opinion.

MR REYNOLDS: That, no reasonable grounds, that it was irrational, possibly that it was made for an improper purpose, also that there were irrelevant factors taken into account and a failure to take into account relevant factors. None of that case can be put without seeing that material.

HER HONOUR: None of it, so far as I can see, is as yet alleged.

MR REYNOLDS: Well, it is in paragraphs 42(a) and (b). The issue of reasonable grounds is raised. That is as much as we can raise at the moment until the documents are provided. We asked to be provided with the material before we did the pleading and they refused. We would have put it in in further detail but we cannot. We can only plead the best case we can on the material available. That is the best case we can plead, but when the material is provided to us we anticipate that it is almost inevitable there will be further material added to that paragraph.

Either way we still need to look at the material to see whether the averment in 42(a) and (b) is correct. We need to see what the material was before the decision‑maker and whether that material constituted reasonable grounds, et cetera, for those matters. So one way or another we are going to have to get that material. The case, in my respectful submission, just cannot be run without the material – it cannot be run at all.

HER HONOUR: Could I ask you then about the section 117 case?

MR REYNOLDS: Certainly, your Honour.

HER HONOUR: Could you outline for me how section 117 is said to apply with the hypothetical residency of the out‑of‑State person in Queensland with the direction – how is the test propounded by the cases said to apply here?

MR REYNOLDS: Well, you have discrimination essentially deriving from the different definitions, or different regimes for exemption that apply on the one hand to a resident – that is dealt with in clause 10 and, on the other hand, to a non‑resident – that is in clause 11. Clause 5 deals with the situation of a person who arrives in Queensland from another State or Territory and will not be allowed to enter unless they are either an exempt resident, which picks up clause 10, or an exempt person. So there is discrimination there. I assume your Honour has the relevant clauses of the direction.

HER HONOUR: Yes.

MR REYNOLDS: There is discrimination there in the treatment that is given to the residents, on the one hand, or non‑residents. If one looks at the regime for exempt residents it is comparatively lenient. If one looks to the regime for non‑residents it is much more onerous. That is our essential point.

HER HONOUR: The discrimination in question operates with respect to a person’s entry into Queensland.

MR REYNOLDS: No, that is not the way the clause is drafted. In clause 5 it talks about a person who arrives in Queensland.

HER HONOUR: This is part of your irrationality argument – they are already here.

MR REYNOLDS: Perhaps, yes, your Honour.

HER HONOUR: Do you think they should have said “is not able to remain”? Is that the point?

MR REYNOLDS: That is our current argument.

HER HONOUR: I suppose airports are not Commonwealth places any more, are they, so you cannot have that little discrimen?

MR REYNOLDS: No, I think that has gone by the by. I think your Honour is right.

HER HONOUR: Yes, all right.

MR REYNOLDS: So, if it is convenient, your Honour, can I attempt to indicate very briefly what the issues are between us. As I understand it, that is what we are making in the short minutes of order - making the orders. The first – I dealt with paragraphs (g) following – that is our No 4, so I do not think there is any issue there.

There are three issues, your Honour. The first we have already dealt with which is our paragraph 1(b) and that is we want the documents relied on and any record of the reasons for the decision to be provided immediately. We have been waiting for it and have been requesting it since 26 May. The second is we do not see any need for filing an amended statement of claim and we do not ‑ ‑ ‑

HER HONOUR: Is that because you have provided the particulars sought?

MR REYNOLDS: Well, either that or we just do not see any need to amend and we are happy with the pleading. I cannot of course eliminate the possibility down the line we may want to amend but for the moment we do not see need for any amendment.

Thirdly, this is paragraph 1(b), we submit the defendants can file their defence tomorrow. We told them about the case and how it works nine days ago and we served them with a statement of claim, as I understand it, on Monday. So that is the third matter.

The fourth matter is that we do not want to be trying to draft a special case until the pleadings are closed because until the pleadings are closed we do not know what the issues are, so any draft of a special case would be rather bizarre and contain lots of gaps. So we just think that
should await the closing of the pleadings so that is dealt with in those various orders.

HER HONOUR: You do not give the defendants very long to respond to the draft special case.

MR REYNOLDS: Well, your Honour ‑ ‑ ‑

HER HONOUR: I take that back. The timing there is the same as the defendants’ proposal.

MR REYNOLDS: Yes, your Honour. I think everyone is under a bit of pressure here.

HER HONOUR: Yes.

MR REYNOLDS: What we have conceded on (g) following is pretty tight, but we have more or less got to get on with it ‑ ‑ ‑

HER HONOUR: Yes, thank you, Mr Reynolds. Mr Solicitor. Are the particulars sufficient or is there is any issue remaining?

MR THOMPSON: I received them shortly before lunch, your Honour. I have not analysed them. We do have difficulties with the pleading. Your Honour has already dealt with section 117 but your Honour will also see that it seems to proceed on an argument that the consequence of section 117 is invalidity which, of course, is very well not the consequence of ‑ ‑ ‑

HER HONOUR: No, it is an immunity.

MR THOMPSON: Yes, your Honour. That is why we were inviting our learned friends to amend the pleading. Your Honour’s point about “in Queensland” is another matter which is not addressed and I do not apprehend it has been addressed by what my learned friend just said to you earlier. Section 117 in its terms refers to “in the State” as we read it and we think that is consistent with some other authority.

HER HONOUR: Mr Reynolds’ point there is that the person has arrived before the direction has effect.

MR THOMPSON: We understand his argument based, I think, on clause 5 of the direction, your Honour. Anyway, that is an issue, I suppose. Your Honour, our main concern obviously is the timetable in relation to our defence so tomorrow afternoon, in my respectful submission, is really quite unreasonable. It is not actually correct that this statement of claim I think
was only filed on 2 June, according to the Court document anyway. I am not sure at the moment when it was served or whether a draft was provided to us beforehand, but certainly from my point of view, I have not seen it before the 2nd. That is the main matter of contention.

HER HONOUR: What about the documents sought in ‑ ‑ ‑

MR THOMPSON: We oppose that, your Honour. We should mention by way of background, an attempt was made without a note from the Court or a Judge under rule 24 to try and file a – can I just go back a point, your Honour. I am advised by my learned junior that in fact we got the statement of claim on Tuesday afternoon, so that is not Monday at all.

So an attempt was made to file a subpoena without a note from the Judge as required by the High Court Rules and that was rejected by the Registry. The view taken on behalf of the defendants is that matters which are relevant in issue will be in a special case or pleaded in the defence and then your Honour should not deal with any question of production of documents until it has been demonstrated at that point in time that further documents are required. Can I also say ‑ ‑ ‑

HER HONOUR: Mr Reynolds says it is necessary to the pleading itself, though.

MR THOMPSON: Your Honour, can I respectfully adopt your Honour’s analysis of paragraph 42 because it is simply not pleaded and particularised in that way and it does not appear to go to any other matter in the pleading on the basis of our learned friend’s submissions.

HER HONOUR: Yes. So they are the two matters?

MR THOMPSON: Yes, your Honour.

HER HONOUR: All right, thank you.

MR THOMPSON: Thank you.

HER HONOUR: Mr Reynolds, the Solicitor‑General probably makes a valid point in relation to section 117 working as an immunity rather than ‑ ‑ ‑

MR REYNOLDS: Your Honour, that is how it is pleaded in section 43(b).

HER HONOUR: In any event I would not be inclined at this point to require an amended statement of claim. If there is a difficulty later with the particulars which have been provided when they have been analysed that could be raised at the next directions hearing. I would imagine that matters will have proceeded past that point in any event with the special case which has to be dealt with by the parties. In relation to when the defendants are to provide a defence, I think it is reasonable to give them until 4.00 pm on 8 June, which was the date they nominated.

MR REYNOLDS: It is a matter for your Honour. It may be that other dates have to be pushed back a bit. I have not done that exercise.

HER HONOUR: Well, if the defendants file a defence on 8 June, I think it – when would you be able to – I mean, you could be proceeding with the draft special case now anyway and I cannot imagine that a reply is going to be extensive, given the nature of the issues. So how much longer than 9 June would you need?

MR REYNOLDS: The 10th, your Honour.

HER HONOUR: I am sorry, the 10th, and then that will ‑ ‑ ‑

MR REYNOLDS: Then 3 would go to 11 June.

HER HONOUR: To 11 June. The further directions hearing then is the next day, 12 June, according to (g)(iii).

MR REYNOLDS: We might need another day there, I think.

HER HONOUR: Well, there is already a directions hearing set down in the Mineralogy matter which I heard directions about just before. It would be more convenient from the Court’s point of view if both matters were dealt with on 12 June, unless that creates a problem for the parties ‑ ‑ ‑

MR REYNOLDS: Can I return if I may to this issue of getting these documents. Your Honour will see paragraph 42(a) of our pleading, just above paragraph (b). We say further particulars will be provided after compulsory production. We just cannot move forward at all on this case, your Honour, without those documents. They are absolutely essential and would be provided in any administrative law case. They have had, as I say, notice since 26 May and they must know what they are. We submit that it puts us in an impossible position and it is absurd for them not to be providing these documents in this situation.

HER HONOUR: Is the Solicitor‑General correct in relation to the rules relating to the subpoena and non‑compliance, or are you asking for an order that is not one based upon a subpoena?

MR REYNOLDS: Exactly. I am asking – we did not pursue the subpoena and we just want a direction to that effect. We are surprised that there is even any argument about it from my friends.

HER HONOUR: It is probably just that the subpoena document – I will call it that – was provided with the papers that may have led to some confusion.

MR REYNOLDS: Yes, your Honour. We have dealt with the orders rather than by way of a subpoena. We do not need a subpoena to be issued. That was a matter we explored yesterday. All we ask for is the order in paragraph 1(b) and, just to be clear about it, I anticipate that we will not be able to move forward with any reply or any draft of a special case unless that material is provided ‑ ‑ ‑

HER HONOUR: I hear what you say, Mr Reynolds, but as I say, on my reading of the statement of claim it does not seem to me that there is an issue raised to which these documents are relevant. Nor do I consider that it is plain that you are unable to plead a case, particularly in relation to reasonable necessity to which these documents are said to be necessary because the particulars given are, as they themselves say, of obvious alternatives.

MR REYNOLDS: But paragraphs 42(a) and (b) begin “on the material before the Chief Health Officer”. Now, we have done the best that we can to articulate a case without seeing that material, but we need that material in order to prove that case and whether a decision is reasonable depends upon the material before the decision‑maker. We have alleged that there were no reasonable grounds so we need to see what the grounds were to determine whether they are reasonable or to submit that they were, otherwise we literally grind to a halt on this whole thing.

HER HONOUR: Well, I am not inclined to make the order. The orders that I will make are:

1. On or before 4.00 pm on 8 June, the defendants are to file and serve a defence to the statement of claim.

2. On or before 4.00 pm on 10 June, the plaintiffs are to file and serve any reply to the defence and to serve on the defendants a draft special case.

3. On or before 4.00 pm on 11 June, the defendants are to serve on the plaintiffs any proposed amendments to the draft special case.

The remaining directions will be in accordance with paragraphs (g) to (q) of the defendants’ draft orders with one alteration and that is that (g)(iii) should commence “In either case” rather than being a separate subparagraph (iii). The next directions hearing is then set down for 10.00 am on 12 June.

If there is nothing further – is there anything further, Mr Reynolds?

MR REYNOLDS: No, your Honour.

HER HONOUR: Thank you. The Court will adjourn.

AT 3.07 PM THE MATTER WAS ADJOURNED