Luck v Bunnings Group Limited & Ors [2022] HCATrans 74 (14 April 2022)

Last Updated: 21 April 2022

[2022] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M77 of 2021

B e t w e e n -

GAYE LUCK

Plaintiff

and

BUNNINGS GROUP LIMITED

First Defendant

OFFICEWORKS LIMITED

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

STATE OF VICTORIA

Fourth Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 14 APRIL 2022, AT 10.30 AM

Copyright in the High Court of Australia

____________________

HER HONOUR: In accordance with the protocol for hearings by video connection, I will announce the appearances.

MS G. LUCK appears in person.

MR A.J. PURTON appears for the first and second defendants. (instructed by Corrs Chambers Westgarth)

MR C.J. TRAN appears for the third defendant. (instructed by Australian Government Solicitor)

MS F.I. GORDON appears for the fourth defendant. (instructed by Victorian Government Solicitor’s Office)

HER HONOUR: What I would like to do at the outset is to set an agenda because there are several matters arising for decision this morning. What I would first like to do is deal with various of the orders sought by Ms Luck. Ms Luck originally sought orders in an application for directions and other relief filed on 16 December 2021. Since then she has filed amendments to that application and what I would like to do is to deal with the application that is annexed to Ms Luck’s affidavit, filed 12 April 2022. What I would like to do first is to deal with the application for orders in that application, apart from the application for directions for the management of the hearing.

What I would next like to do is to deal with the first and second defendants’ application, the third defendant’s application and the fourth defendant’s application. Depending on the outcome of those, I propose to then come back to the application for directions for the management of the proceeding.

Ms Luck, are you content with the Court proceeding in that order?

MS LUCK: In the agenda you have just mentioned?

HER HONOUR: Yes.

MS LUCK: I have – because of the several amendments that I have made - do you mind if I sit or stand ‑ ‑ ‑

HER HONOUR: Whichever you prefer, Ms Luck.

MS LUCK: Sorry. I will sit for the moment, but I will probably want to stand afterwards because my back hurts. I have the four amended amendments, so you said 12 April, was it? Which one did you say you wanted to attend to - 12 January?

HER HONOUR: 12 April, which is the most recent one.

MS LUCK: Right. In that one my orders seek to – the orders made in the – I sought to have the orders made in respect of the first or – sorry, I am a bit confused. I have a lot of law here that I am sort of trying to get in together and, as you said, it is complicated, and I have to go through this. What I am trying to say is that I think I might have made it in the submissions that I wanted the – or in the last amended application that I wanted to have the first one ‑ the orders of the other ones made as well. So, I am seeking orders that were not all listed in this one, I think.

HER HONOUR: I see.

MS LUCK: The orders – I think – I am sorry, I might have been wrong. But, yes, if we go through that one and there is anything that I cannot – can recall on the previous orders that I have not got – I think I have done them all. I think discovery was the only one that was a little bit out of ordinary there, so yes, your Honour. Sorry, it is a hard start.

HER HONOUR: All right, thank you. Mr Purton, do you accept that that is an appropriate agenda?

MR PURTON: I do, your Honour.

HER HONOUR: Thank you. Mr Tran?

MR TRAN: Yes, I do, thank you.

HER HONOUR: Ms Gordon?

MS GORDON: Yes, your Honour.

HER HONOUR: Thank you. All right. Now, what I will now do is identify ‑ ‑ ‑

MS LUCK: Excuse me, sorry, your Honour, will you be hearing the applications all before you determine any of them?

HER HONOUR: Yes.

MS LUCK: Thank you.

HER HONOUR: Now, what it is next convenient for me to do is to identify all of the relevant documents. So, I have already identified your application, Ms Luck, which is the application annexed to your affidavit filed on 12 April. The next document that I think I need to identify is the draft amended writ of summons which is referred to at paragraph 2 of that application. Now, that is, it seems to me, annexed to your affidavit filed on 24 January 2022. Do you agree with that, Ms Luck?

MS LUCK: I am just checking my documents here - 24 January, plaintiff’s amended draft writ of summons in GL02, yes, correct.

HER HONOUR: Yes, all right. Terrific. Now, Ms Luck has filed nine affidavits, all of which, it seems to me, are of potential relevance to her application. Ms Luck, do you seek to rely on all of those affidavits today?

MS LUCK: I do, your Honour, unless of course because things have changed and the fourth defendant has made various changes, there are some things that may not be relevant, but the other things in there I will be relying on. Thank you.

HER HONOUR: All right. I will identify those nine affidavits by the dates on which they were filed. The first is filed 16 December 2021, the second 24 January 2022, the third 25 January 2022, the fourth 27 January 2022 – I am sorry, that was 25 January 2022 – the fifth is filed 27 January 2022 – I am terribly sorry, I am going to start again to make sure that the transcript is accurate.

The affidavits of Ms Luck were filed 16 December 2021, 24 January 2022, 25 January 2022, 27 January 2022, a second affidavit of 27 January 2022, 1 April 2022, 4 April 2022, 12 April 2022 and 13 April 2022. Mr Purton, do you have any objections to any of those affidavits?

MR PURTON: No, your Honour.

HER HONOUR: Mr Tran, any objections?

MR TRAN: No objection.

HER HONOUR: Ms Gordon, do you have any objections?

MS GORDON: No, your Honour.

HER HONOUR: Thank you. All of those affidavits will be taken as read. Next, I will identify the written submissions upon which I understand, Ms Luck, you will rely. There seem to me to be two of those, one filed on 16 December 2021 and a reply filed on 7 April 2022. Are those the two written sets of submissions that you rely on?

MS LUCK: There are three, your Honour.

HER HONOUR: What is the third one?

MS LUCK: The third one – the last one was the outline of reply submissions for 14 April – which were filed on 14 – for today, for the 14th but they were filed on the 12th, I think – no, the 7th, sorry. The last submissions that I filed then – I think they were filed on 7 April. Then there are the submissions that I filed on – sorry, I thought there were – there were two lots of submissions – there was 7 April and 21 December. There were submissions that I put in with the first application – I put in my six submissions as according to the rules. Then on 21st, you asked me to make a reply to anything that happened from the defendants’ responses to the application.

HER HONOUR: Yes.

MS LUCK: So, there was the 21st, or thereabouts – that would have been – I am not sure. That would have been around that date. I am so sorry, I have tried to set myself up without – 16 December, 21 December.

HER HONOUR: I see those documents – that third document on the Court file, Ms Luck. So, we have three sets of submissions from you.

MS LUCK: Yes, sorry, it has taken me ages to work through my stuff.

HER HONOUR: Now, that is the material for the plaintiff. For the first and second defendant, there is an application filed on 28 March 2022 with a supporting affidavit of Mr Critchley and written submissions. Ms Luck, do you have any objections to the affidavit of Mr Critchley?

MS LUCK: No.

HER HONOUR: Thank you. For the third defendant, we have an application filed on 28 March 2022, with a supporting affidavit made by Josephine Ashley Hampton and submissions filed the same day. Ms Luck, do you have any objection to the affidavit of Ms Hampton?

MS LUCK: No.

HER HONOUR: So, for the record, all of the nine affidavits of Ms Luck that I have identified are taken as read. The same applies to the affidavit of Mr Critchley and the affidavit of Ms Hampton.

Finally, I will identify the fourth defendant’s documents. They were filed on 28 March 2022. There is an application, an affidavit in support – which is an affidavit of Mr Coppel - and written submissions. Ms Luck, do you have any objection to the affidavit of Mr Coppel?

MS LUCK: No, I do not.

HER HONOUR: All right. That affidavit is taken as read.

MS GORDON: Your Honour, could I just intervene quickly just to note that there were some submissions filed last year by the fourth defendant. That responded directly to the orders sought in the 16 December application. So, there is that additional document for the defendant.

HER HONOUR: I see. Those are the submissions that were filed on 20 December 2021.

MS GORDON: Yes, that is it.

HER HONOUR: All right. Now, Ms Luck, are there any other documents that I need to deal with today’s application?

MS LUCK: No, and just so that you are well aware that my affidavit started at number 2 – GL02 – I have made a mistake, I thought I had made one before – so that is why there were nine, but the last one filed with the last affidavit on the 12th was GL10 – so that is why there is a discrepancy there, your Honour.

HER HONOUR: Thank you. Mr Purton, are there any more documents to be identified?

MR PURTON: No, your Honour. But may I mention one thing is that the final submissions that Ms Luck wishes to rely on, I am instructed have not been served on my client. I certainly do not have a copy. It may be that they do not concern my clients, as many aspects of the application relate to relief sought against the third and fourth defendant. But to the extent that they do I should note that I have not received a copy as yet.

HER HONOUR: Are you referring to the document that I described as the plaintiff’s reply filed on 7 April 2022?

MR PURTON: No, your Honour. I have that document. I am referring to the document that Ms Luck referred to as being filed, I think, on 12 April.

MS LUCK: They would be filed by the Court. You should have them by the Court, through the Court’s DLS system. I did actually send them to you by email as well.

HER HONOUR: Ms Luck, let me just clarify because the documents that I identified as submissions filed by Ms Luck, Mr Purton, were filed on 16 and 20 December, and 7 April. The only document that I identified as filed on 12 April was an affidavit from the plaintiff.

MR PURTON: I beg your pardon, your Honour. I have that document.

HER HONOUR: Thank you. Mr Tran, are there any missing documents from your perspective?

MR TRAN: No further documents. Thank you, your Honour.

HER HONOUR: Ms Gordon?

MS GORDON: No, your Honour.

HER HONOUR: All right, thank you. Now, proceeding as I proposed at the outset, the first thing to deal with is Ms Luck’s application for leave to file the amended writ of summons, which is annexed to her affidavit of 24 December 2021. The first thing I will do is find out whether leave to file that document is opposed. Mr Purton, do you oppose leave to file that document?

MR PURTON: No, your Honour.

HER HONOUR: Mr Tran?

MR TRAN: No, your Honour.

HER HONOUR: Ms Gordon?

MS GORDON: No, your Honour.

MS LUCK: Excuse me, your Honour. I have actually noted that down, that at this stage the second amended writ of summons ‑ ‑ ‑

HER HONOUR: Yes.

MS LUCK: ‑ ‑ ‑ would have to be amended again because of the changes under the fourth defendant’s actions since then. So, I would say that that is something that it might – it is on my first – first on my list for mentioning to you. That if it is filed as is, it would have to be amended again so I am – and the amendments would be bringing in the – the last POPO(6) and PWO7. That would change the situation on those, so if that would be appropriate.

Also, your Honour, sorry, I am sorry – the writ of summons may – I may be seeking to amend it in respect of a further claim in regard to the third defendant. I am not sure yet until we deal with these issues, and it is all relevant to how this comes out of these applications and so on, your Honour.

HER HONOUR: Ms Luck, I think the best way for me to make sure that I address all of the issues one by one is to note that what you are now seeking orally is a further order, and what I will do is I will add that to the agenda, and I will put that underneath the agenda item of directions for the management of the proceeding.

MS LUCK: Okay, thank you very much.

HER HONOUR: So, we will put that down towards the end, and what I will note is that I will make an order granting leave to file the amended writ of summons annexed to Ms Luck’s affidavit filed 24 January 2022. So that will deal with paragraph 2 of the application that I have previously identified as annexed to the affidavit filed on 12 April 2022. The next agenda item is paragraph 3 of that affidavit, which seeks:

an urgent injunction against the Third Defendant, the Commonwealth of Australia, and the Fourth Defendant, the State of Victoria –

prohibiting them from taking certain action that is allegedly discriminatory.

MS LUCK: Is that the affidavit or the application you are talking about, your Honour, please?

HER HONOUR: I am at the application, paragraph 3.

MS LUCK: Okay. Okay.

HER HONOUR: Now, Ms Luck, I think the most convenient thing for me at the outset is to hear Mr Tran and Ms Gordon in relation to that relief,
and that will give you an opportunity to hear why they oppose that relief, and then I will give you an opportunity to make your submissions in response to that. Mr Tran.

MR TRAN: Your Honour. The first reason why your Honour should not make that injunction against the Commonwealth is that your Honour could not be.....that there is a prima facie case against the Commonwealth in circumstances where, in my submission, Ms Luck has still not articulated her case against the Commonwealth. When we get to it, in your Honour’s running order, your Honour will see that the draft statement of claim that was sent yesterday to the Court is in part and it is incomplete and, indeed, when your Honour reads it, the precise nature of the claim against the Commonwealth remains equally vague and embarrassing. So, the first argument, we say, is there is no prima facie case.

The second reason why the Commonwealth says an injunction should not be granted against the Commonwealth is that your Honour would not make the injunction against the State of Victoria, for the reasons that I anticipate Ms Gordon will develop and which were already put in writing in December by Victoria, and if your Honour did not issue an interlocutory injunction against Victoria, I cannot see, in my submission, why your Honour would grant an interlocutory injunction against the Commonwealth.

I say that for this reason. Doing my best, I think Ms Luck’s claim is along these lines – there are Victorian public health orders that impose certain restrictions on people who are not vaccinated and the ability to record medical exemptions is based on a Commonwealth document that is picked up by the State of Victoria for its purposes. So, in that sense, the direct instrument that is causing the plaintiff to be aggrieved is a Victorian instrument which picks up, for Victorian purposes, a Commonwealth instrument.

So, if your Honour were not minded to grant an injunction against the State of Victoria, I think it would necessarily follow that, for whatever reasons your Honour was not minded to do so against Victoria, the same would apply – if not stronger – to the Commonwealth. That is the second reason.

The third reason why we say your Honour should not make an interlocutory injunction against the Commonwealth is that, again, the critical thing that the Commonwealth has done, as I understand Ms Luck’s case, is to promulgate a particular form for use on their register. That form - your Honour does not have evidence of this – I do emphasise that – but your Honour could surely take judicial notice that that form is presumably used throughout Australia by all sorts of third parties who are
not before the Court. That engages a kind of consideration of interlocutory injunctions that your Honour ought not – as a very important factor in the balance of convenience is the impact on those who are not before the Court.

So those are the three main reasons why we say – there will be a fourth tag‑along one which Ms Luck will have to confirm for your Honour. Of course, Ms Luck would have to give an undertaking as to damages. If Ms Luck declines to do so, then that would be an additional reason in the balance in of convenience.

I do not otherwise seek to add anything. I expect – even without hearing Ms Gordon – I would adopt Ms Gordon’s submissions on this as well.

HER HONOUR: Thank you, Mr Tran. I will indicate for the assistance of the parties that I have had an opportunity to examine closely the draft and incomplete statement of claim. Ms Gordon, what do you say in opposition to prayer 3 in the application?

MS GORDON: Your Honour, like my friend, Mr Tran, in my submission, the interlocutory injunction sought would be refused for the reasons set out – both in the 20 December written submissions and for the additional reasons given in the more recent 28 March submissions. But, broadly, the reasons are as follows: the materials filed by the plaintiff – doing as best we can to discern the case – disclose no legal right that would support an injunction and, certainly, no prima facie case that would support an interlocutory injunction.

The first difficulty, which I understand was dwelt on at some length – the hearing that took place in December – is that the factual basis for Ms Luck’s complaint is her being denied entry to Officeworks and Bunnings. The restriction to those kind of premises is no longer in place.

We have sought in our most recent affidavit to annex the most recent directions to make that good. They have since been overtaken again because, as your Honour will appreciate, these directions move quickly to adapt to changing circumstances, but the key point is that the factual basis of her claim has been overtaken by events. So, to that extent, the injunctions sought are no longer relevant.

But perhaps more fundamentally, the injunctions seem to be sought to stop the Victorian Minister making directions under the Public Health and Wellbeing Act and there are a number of reasons why there is simply no basis to grant those interlocutory injunctions.

Some of the fundamental difficulties are picked up in paragraph 5 of our most recent submissions but in short, your Honour, we on the one hand seem to have a claim for discrimination and if it is a claim for discrimination that is a claim that is really constrained by the bounds of the Disability Discrimination Act and the remedies offered therein. It is not one that, in my submission, has any obvious application to the present circumstances. On the other, we have what seems to be a tortious claim for negligence or breach of statutory duty, again not clearly articulated, and we would say would face serious difficulties. Really those are the main reasons, your Honour.

There are some other reasons articulated in our submissions of 20 December, including the vagueness of the relief sought, but that is in a sense a peripheral concern. The fundamental concern - in my submission, there is simply no legal basis or prima facie case that would justify the grant of interlocutory relief. Of course, Mr Tran has also raised the question of an undertaking as to damages, again perhaps a second‑order concern in the present circumstances.

HER HONOUR: Thank you. I should clarify that in the application Ms Luck seeks an urgent injunction at paragraph 3 of the application and then a further injunction at paragraph 9. Can I take it, Mr Tran, that what you have said applies to both prayers 3 and 9?

MR TRAN: Yes, that is so, your Honour.

HER HONOUR: Thank you. The same for you, Ms Gordon?

MS GORDON: Yes, and I am grateful to your Honour for noticing that because I meant to make that point, but yes.

HER HONOUR: Thank you. Ms Luck, what would you like to say to me in support of your claim for the orders in prayers 3 and 9 of the application?

MS LUCK: They are repeated, your Honour. I am terribly sorry, but in my rush to get documents made I actually – probably – I think they are pretty much the same order. When I first started the first application, which is the one that I have copied and pasted onto the next applications with amendments and so on, and do not forget these are amended applications filed under affidavits – exhibits. So I have actually put “the plaintiff makes application” and then I have made the application.

Then in the second or third one I realised that it was a clearer view to put the orders in under “Orders sought”. So, technically, they are basically seeking the same order. I apologise for that and I have great difficulty getting any of this done so you can understand the pasting and copying and things like that that I need to do technically. So, yes – so as far as those two – will that – is that the question you were asking me or do you want me to go into my reasons for the injunctions that have just been responded to by the parties?

HER HONOUR: What I am asking you is whether there is anything more that you want to say that is not in your written documents in support of those injunctions or to answer anything that Mr Tran or Ms Gordon said.

MS LUCK: Well, I will start by looking at the third defendant, Mr Tran’s, response. Just a second please, I am sorry. It seems to me that I may not have put my claims or my – seeking the – the injunction will rely basically on the facts and the legislation and the claims made in my statement of claim which, of course, has not been completed, but for the purpose of this injunction I believe that given the opportunity to go through that claim and to point the various correlations between the conduct of the third and fourth defendants I can point to the very specific arguments that I am obviously going to have to make now.

I have made my submissions in reply to the replies made on the third and fourth defendants on 28 March. I have made that in my written reply, which was on ‑ 7 April I made that reply, and that was filed. I have listed to the last pandemic – now, I am sorry, I am not very good at this. I have not experienced having to deal with this particular type of case before.

The pandemic orders are made pursuant to the Public Health and Wellbeing Act (Vic), and under the Australian Immunisation Register Act the fourth defendants are prescribed bodies. So they have been prescribed for the purpose of the Australian Immunisation Register Act to act on behalf of the government and administer that scheme – immunisation scheme.

So, when they use the forms in that – in their requests for information, and that what they require is acceptable documentation, I think it is, so acceptable – I am sorry - in the Pandemic Order, open premises order, they ask for acceptable evidence of either vaccination, full vaccination, or they ask for exemption, or excepted persons. So, when they are operating that system they are actually making – they are breaching section 29 of the Disability Discrimination Act, which is an Act that they have an obligation to abide by under the law of this country, of the Commonwealth.

On that basis, when they are discriminating against people based on the forms that they are administering and the various immunisation scheme, they in fact are breaching a law, which is forbidden, under section 29 of the Disability Discrimination Act. So, the connection comes from the Commonwealth Government prescribing the Victorian Government, or the State of Victoria, and under these – as a - under this law, under the Public Health and Wellbeing Act, Victoria is a corporation.

So, by means of the – and though the third defendant – I think it was the third defendant – or the fourth defendant, made comment in their – they made an argument about a case about how they wanted to dismiss this – sorry, it was not, it was the first and second defendant, sorry. They discussed a case, I think it was Barclay – or something - anyway, it does not matter – that was about dealing with the Victorian Government and the Commonwealth, or State Government and making arrangements and agreements with them.

This is not an agreement, this is actually statutory law that has been brought in under the Australian Immunisation Regulation Rule 2015 (Cth), and in my statement of claim, if you would like to refer to that, I can direct you to those, if you would care to look at that, under the third defendant – and I am sorry, I intend to, and I have intended to, do an index and a table of contents in regard to the statement of claim, but I thought it was better I put it in before, so that there is evidence of what I am trying to argue here. It is under Part D of the statement of claim, and that would be on page 23 of 77.

HER HONOUR: Yes, I have that.

MS LUCK: Right, and, your Honour, in – and I will tell you which page that is, on page 38 of 77, or 42 of the High Court numbering, it has the relevant Health, Emergency and Immunisation Acts and Instruments. I can go through this in detail, which might be the best idea, but it is quite lengthy and given that you have already got it there in writing, I would probably be – if you have any questions or anything that you want to ask me, I can go to the point and clarify. But in regard to this – I have to find the date on which this was made ‑ ‑ ‑

HER HONOUR: Ms Luck, can I ask you a question?

MS LUCK: Yes, certainly.

HER HONOUR: I have spent several hours examining the statement of claim, so I am familiar with its contents. Is the gist of what you are saying that you are relying on the contents of the statement of claim in support of the injunctions?

MS LUCK: Absolutely, to the extent that they are, and possibly may need some amendment or – but as a bulk of it, I would have no question at all – that is I am seeking to rely on that. In regard to the National Immunisation Program, this is the part which the Victorian Government are administering on behalf of the government of Australia – the Federal Government – the third defendants – because they have been prescribed as prescribed bodies underneath the rule – Australian Immunisation Register Rule 2015. That was done on – around 19 February 2021, the Minister for Health made the Australian Immunisation Register Rule. That was when the third defendant brought in the requirement for new vaccines.

Then, previous to that, he had made mandatory in the rule – on 25 November 2015, the Minister for Health made the Australian Immunisation Register Rule 2015, under section 31 of the AIRA – which is the Act – prescribing bodies for the purposes of the definition of the expression “prescribed body” in section 4 of the AIRA, including:

primary health networks, research facilities, the States and Territories to the extent that they acted through their Health Ministries and Departments, and the officers, employees or contractors of prescribed bodies who were, for the purposes of the definition of the expression “prescribed body” in section 4 of the AIRA.

(a) the person performs work relating to the purposes of the ACI Register; and

(b) the person performs works that because the person is an officer or employee of or is engaged by another person who is prescribed body because of another section of this part.

In other words, the people at Bunnings and Officeworks, were acting under this prescribed body, the Victorian Ministry of Health, or the Department of Health, when they were seeking the requirements of the – to determine acceptable evidence. They were acting in that role at that time, and they were, as section 4 of the AIRA says, the person performing the work relating to the purposes of the ACI Register.

So, there is no question that the connection is entirely there. They cannot separate themselves from the Commonwealth Government, even though they are using the Commonwealth Government form, they are using all sorts of things from Medicare, the Services Australia Department, and so on. They are still acting under this law as prescribed body, and the persons working for them are also a prescribed body.

HER HONOUR: Thank you, Ms Luck. I think I now clearly understand your claims for injunctive relief, and it would be appropriate now to move on to your application for discovery. Normally, the Court will not order discovery until there is a final statement of claim which is responded to by defences. Why would it be appropriate for the Court to order discovery before a final statement of claim in this case?

MS LUCK: Perhaps it would not, your Honour. I have done enormous amount of work to establish the laws and the specifics in regard to this – these – this legislative - the statutes and so on in regard to what covers this whole case and I found enough, I suppose, to deal with this now before discovery, which I believe that I can point to in the statement of claim.

But what I really wanted was, because the third defendant is – there are some very serious issues here that have been addressed by the Parliamentary Joint Committee on Human Rights and because of this it relates to the personal information that can be released to other people and the Minister can do so if he is satisfied that it is in the public interest. They have not agreed this. They have quite clearly said that this is not in order with international law of the covenants and the - particularly, the International Covenant of Civil and Political Rights and the Disability Discrimination Act, under section 12(8), I believe.

That brings into all of the Conventions, the International Covenant of Civil Rights – Political and Civil Rights – the International Covenant on Economic, Social and Cultural Rights, the Declarations on Persons with Disabilities, the international work – sorry, I cannot think of the exact term, but it is the first one in the schedule of the Human Rights Commission Act which I have specified in here. Each of those are schedules to the Human Rights Commission Act and they, under section 12 of the Disability Discrimination Act, bring in disability discrimination in relation to any of those covenants or Conventions that have an effect – that are to the effect that disability is related in respect of that.

So, with that the – I am sorry, I lost my point of view here. Sorry, can you assist me, your Honour?

HER HONOUR: I think we were talking – we were dealing with your application for discovery and I had said to you that it seemed premature and you thought, well, maybe it was, and you pointed out that you had found enough about the legal position and about what had happened to deal with the matter by preparing your draft statement of claim. For my part, I think that is enough for me to understand what you are saying about discovery. Is there anything more that you want to say?

MS LUCK: Well, depending on how this – if this injunction is granted then there would be nothing more, but if the injunction is not granted then it pretty well says my case is not feasible which, of course, I have argued that it is a quite serious case and it is not one that can be dismissed lightly. This is a very important issue that was brought up by the – I think it was the first and second defendants in their argument. I think it was them that brought up the case about dismissing it on the basis of it being frivolous or – I do not know ‑ but it was not.

But these issues with the fourth defendant, they are claiming all these – they make human rights statements that are saying that they are limiting certain human rights and so on, but they say that they are relatively reasonable, they are reasonable, and therefore they can do that. Well, my arguments go much further than that, and as you would have seen in my statement of claim, your Honour, there is a lot more to it than the Victorian Government’s point of view on the human rights issues.

This is in regard to the technical scientific evidence that they have got, or that they have used, to support their applications to dismiss my case and say that they have not got any arguments, or that I have not got any arguments. It seems to me that they have produced nothing at all that determines that a person who is unvaccinated and a person who is vaccinated – a person who is unvaccinated has absolutely no difference in the way that it affects public health than a person who is vaccinated.

So, if they have got any evidence whatsoever that this is the case, then they need to produce it and I think that would be – if they are still continuing to argue and you choose – you do not want to give me the injunction, then that would be – I would be – I do not know what I would do. I would have to seek some other form of – I do not know what I would do. But, yes, the case does require in the end to know how that they have supported their terrible discriminatory actions in the way that they have made these orders.

And of course I understand the social circumstances here for yourself, your Honour, and Australia and the State of Victoria in regard to this is a very important case in that if you make an order for the injunction and that then puts all of the orders in regard to the whole of Australia and the laws regarding all of the vaccination mandates and so on into question, and that is a big problem, but I am not seeking those things and I think that should be left to anyone else outside of this case who chooses to seek it after whatever happens in this case. But I am – and that was another thing that Mr Tran did mention that – sorry, it has been very hard for me to get all this done.

HER HONOUR: Yes. Well, Ms Luck, I wonder if – I think I have heard enough from you on the question of discovery - it would be appropriate to move on to the next issue that you have raised and I think it can be dealt with quite quickly, and that is paragraph 11 of your application which asks that the other Justices, apart from Chief Justice Kiefel, recuse themselves from hearing this application. That, it seems to me, clearly does not arise because I am dealing with the application.

MS LUCK: Correct.

HER HONOUR: Yes, all right. So would it be fair to say that paragraph 11 is not pressed?

MS LUCK: It would not be pressed now, but it could be - your Honour, it is all up to you really. I mean, I cannot – and after my – the way that I have presented – I am not very good at this at the bench here because I am inexperienced in actually ever getting to give an argument in the Court, but I have put enough I believe in my written work here that you should be able to understand where I am going.

But I was just about to say something about Mr Tran saying something, and it was quite important about the social consequences of this. He did not seem to understand, or he did not seem to – he indicated to me from what he was saying that he was referring to all of the instruments, orders and so on that the Victorian Government have made.

I have specifically – specifically – pointed to the ones that are affecting me and there are of course a lot of other people out there that they are affecting as well. But there are other orders that would affect me. But these two are specific, and why I chose to deal with that was because if I went through all the other orders, I am sure they will have an effect on me. I am still not too old to get a job or to do anything else. But this is why I want to narrow this down to this, and I was even considering bringing in the one for the specific workplaces or aged care and all this.

I have not been able to visit some of my aged friends in aged care for years. I am concerned that that may be the case ongoing. However, I chose to keep it narrow and then we can deal with just the ones that affect my work. I cannot go out to work. I cannot go and do anything in my environment where I go to an Expo or out in public. I cannot go to any entertainment. I cannot do anything. I cannot have my haircut, cannot go and buy a bra – cannot go and do – no, actually, that was during the one month between 18 November and 15 December. That was actually a period when the first and second defendants were involved. But, yes, your Honour, depending on what happens here, I am happy to go ahead and go to the next one – which is, what was it – the other Judges on the High Court Bench.

HER HONOUR: Yes. So, that was directed to the application here. But, as I have pointed out to you, I am dealing with the application. So, really, there is nothing to say there.

MS LUCK: So, if you deal with this application, does that mean that you are going to be dealing with this – because, for me, when it comes to discrimination – disability discrimination – it is a very serious matter for me with the courts. So, I do not want to go into that either. But you will be hearing this – if you make the injunction and we go ahead and go on with the statement of claim, and all this sort of thing, whatever happens, would you be hearing this case throughout? Are you the person hearing this case unless a special question is asked at the Full Court, or something like that?

HER HONOUR: Yes.

MS LUCK: Thank you. That is all I need to know.

HER HONOUR: So, moving on to paragraphs 12 through to 14 of the application, what that seeks is three declarations. The difficulty there, Ms Luck, is that it would only be appropriate to make a declaration at the end of proceedings but here we are at the very beginning. So, unless there is something very unusual that you can point to, I cannot see how the Court could make declarations of the kind that you have put in your application, at this stage of the proceeding. So, do you accept that?

MS LUCK: No, not really, I am sorry – not entirely because this is an unusual situation for the Court, for me, for everybody in Australia. A declaration has never – or has once been made, or something, in the High Court in an interlocutory declaration. But, in this case, a declaration might be – you might need to do that to make the injunction – I do not know. We are not using a constitutional writ here to bring in an individual – a Commonwealth officer, or anything – so a declaration in regard to the – which ones have I asked for – the fourth one, I think - how can you make a declaration without – can you make a declaration - can you make an injunction without a declaration of these things?

HER HONOUR: Yes.

MS LUCK: Well, in that case, then we can wait for them. But if the injunction is to prevent them from going ahead – from the fourth defendant, the third defendant – if the fourth defendant is – if an injunction is taken out against the fourth defendant, that solves that problem in the immediate future, but it does not solve the problem of the form being used, the forms being used, but it would resolve my problem under the open premises and the workplace orders if the injunctions were made on those two.

That would then solve the problem enough to go through the rest of it in a proper format and do the statement of claim and have the pleadings and so on and so forth, but I was concerned that that will not occur because
you cannot make the declaration that these are inoperative, how was it going to be made, on what terms would it be made, and if you are – yes, you understand, I am pretty sure, what I think I am trying to say.

HER HONOUR: Yes. All right. Well, that deals with the substantive aspects of your application, Ms Luck. So, as I have already said, we have put the directions down towards the end of the agenda. The next thing that it is appropriate for me to deal with is Mr Purton’s application for summary dismissal, and, as I understand his point, it is that on the currently available material, there is no disclosed cause of action and no reasonable prospect of success. Is that a fair summary, Mr Purton?

MR PURTON: Yes, your Honour. It is.

HER HONOUR: All right. Ms Luck, I have looked at the draft statement of claim and the draft writ of summons to try and understand the cause of action, or whether you have a reasonable prospect of success, and there are a couple of particular concerns that I have. One is, obviously, that the declarations of discriminatory conduct seem to be inconsistent with the regime for dealing with disability discrimination by the Australian Human Rights Commission.

MS LUCK: I am not bringing them on discrimination, I am bringing them on the tort of breach of statutory duty.

HER HONOUR: So that is why I then had a look at the allegation concerning statutory duty, and the way that it is framed in the statement of claim is by alleging a statutory duty of care, but I cannot identify any facts that point to the existence of a statutory duty of care.

MS LUCK: Statutory duty of care under section 29 of the Disability Discrimination Act.

HER HONOUR: Section 29 prohibits ‑ ‑ ‑

MS LUCK: I will just find that in the statement of claim for you so that you can all have a look at it.

HER HONOUR: Have a look at page 11 of 77, Ms Luck.

MS LUCK: Thank you. Yes.

HER HONOUR: So that sets out what section 29 says, I think.

MS LUCK: Yes, and those people were performing the functions of:

or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

Whilst they were standing there – I have got photographs of the documents they were using – and administering that scheme on behalf of the Victorian Government – or under the orders or directions of the Victorian Government.

This brings to bear a huge case of one party doing the wrong thing to start with, second party doing it because the other party said they should do it, then they did it as well. This is a sort of rolling case of people doing the wrong thing and breaching this section 29 of the administration of Commonwealth laws – which all come about from the Minister of the Department of Health of the third – fourth – third defendant – making rules under which there could – prescribed bodies who were prescribed by that rule – 2015 Australian Immunisation Register Rule – that the body – the Health Department of Victoria was a prescribed body and anyone who works in relation to that Australian Immunisation Register Act and for any purpose under that Act was actually administering – and this is precisely what section 29 forbids.

HER HONOUR: I see. So, I think I understand that what you are saying is that there was statutory duty of care, as you put it in your draft statement of claim owed by Bunnings and Officeworks under the – various of the provisions that you have identified in the Disability Discrimination Act. What I think we should now look at is the Commonwealth’s application for remittal of the proceedings to the Federal Court of Australia.

Mr Tran, I do have a question for you.

MR TRAN: Yes, your Honour.

HER HONOUR: Your client is seeking remittal rather than summary dismissal.

MR TRAN: Yes, your Honour.

HER HONOUR: When your client sought that relief, it did not have the benefit of the draft statement of claim. Is there anything in the draft statement of claim that indicates to your client a possible cause of action against your client.

MR TRAN: I am grateful, your Honour. To explain the Commonwealth’s position, we did not think it was appropriate at the time – back in March, I think it was – to seek summary judgment in circumstances where Ms Luck had only one go at articulating her case. That indeed, now, as of yesterday we have the benefit of a very full statement of her claim. Now, I accept that it is incomplete – it says that it is incomplete at the last page – but as Ms Luck said to your Honour this morning, it was her attempt to give the gist of her claims. So, looking at the gist of it, I can say that the claim based on a breach of statutory duty is inconsistent with the very closely analogous Full Court authority.

The relevant authority is Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at paragraph 71. Relevantly that states, by reference I think to another authority, but states that the Australian Human Rights Commission Act and the Sex Discrimination Acts do not create statutory writ of action for breach of duty of the precise claims that Ms Luck relied upon.

Now, I accept that is in relation to the Sex Discrimination Act, but in circumstances where these Discrimination Acts all achieve, or seek to achieve, the same sort of thing, the same reasoning would apply here. So, in relation to statutory duty, I would say that there is no reasonable prospect of success. It does, your Honour, leave the additional claim by Ms Luck of negligence free from ‑ ‑ ‑

HER HONOUR: Well, Mr Tran, I am sorry to interrupt you, but at the moment there is no actual allegation of common law duty of care, so I have to disagree with you that there is any articulation of a common law negligence claim.

MR TRAN: Yes, your Honour, it ‑ ‑ ‑

MS LUCK: I have claimed that, though.

MR TRAN: I was going to say that while Ms Luck uses the term “negligent” – and she uses it to in a way that might suggest that it is separate from the breach of statutory duty, I think, in truth, her claim is either best understood only based on a breach of statutory duty or her seventh claim fails to articulate any basis upon which a common law negligence claim could succeed when the breach of statutory claim is foredoomed to fail. That is all I wanted to say, your Honour.

HER HONOUR: All right. Thank you, Mr Tran. Ms Luck, what would you like to say in response to what Mr Tran has said in his client’s application for remittal to the Federal Court.

MS LUCK: Well, this goes to the High Court, the Constitution, the Judiciary Act. Under section 75(i) of the Constitution, the original jurisdiction of the High Court is in relation to treaties – under treaties and section 51 of the – section 51 – I am trying to think which one it is, sorry – where am I – section 51 of the Constitution under (xxix), external affairs, that is:

The Parliament shall –

under section 51, are legislative powers of the Parliament:

The Parliament shall, subject to this Constitution, have [exclusive] power to make laws for the peace, order, and good government of the Commonwealth with respect to –

and it lists several that I have actually brought this case under, but in this particular case it is under subsection 29(xxix) – external affairs and under section 71, “Judicial powers and Courts”:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

So the original jurisdiction in section 75(i) is under treaties. This case is brought under that particular provision and there are quite a few cases in authority that say that unless a treaty is incorporated into a statute that the High Court has not considered them in the past or – however, this – going back to the treaties, I have outlined that in my statement of claim quite importantly that under all of the treaties and covenants to which Australia is bound by international law and its own law – you know, United Nations Charter, United Nations Act - or the Disability Discrimination Act is the one that I am bringing it under, and that includes all the treaties that have an effect that disability discriminate against an individual.

And under those treaties there is provision for paying compensation for amending – making amends for any discrimination. So this is not – this is the case of a tort of statutory duty – of breach of statutory duty which is the duty of the parties, all of them, under the Disability Discrimination Act which incorporated, as I went through the history and I put that into my submissions the other day – I put a whole thing on the Disability Discrimination Act and how it was brought it and how it incorporated all the various conventions. So ‑ ‑ ‑

HER HONOUR: Ms Luck ‑ ‑ ‑

MS LUCK: Sorry, yes.

HER HONOUR: I am not minded to make the order that Mr Tran is seeking today, that is, I am not minded to remit this matter to the Federal Court where it is not – a cause of action does not appear to me to have been clearly disclosed in the statement of claim or really disclosed at all in the statement of claim. But what I am contemplating is whether the better approach would be to make an order of the kind that is sought by Bunnings and Officeworks, and that is that the proceeding should be summarily dismissed.

MS LUCK: You are not going to make that order, are you?

HER HONOUR: Well, I am asking for you to make some submissions in relation to that, and so what I need to understand is whether there is anything more you can say to me about the facts that you would rely on to make a cause of action to the writ of summons.

MS LUCK: Well, your Honour, I did make some submissions in regard to this. How – even if - even if I should have taken it to the Human Rights Commission, which is absolutely out of the question in regard to the issues at stake here, because the issues at stake are – the base of the matter is the wrong law made in regard to immunisation exemptions and personal information required to be released and so on. So, the first thing is the third defendant is at the basis of all the problems.

Then comes the fourth defendant, who comes along, and they should have known, or did know, that what they were doing was going to have the effect of discriminating against disabled people, because the disability – “disability” under the Disability Discrimination Act, is a disability that can be imputed to you, imputed to anybody, and as I see the situation, we have had imputed to us, the entire population of Australia, we have been imputed with the disease of - the disability of COVID‑19, and on that basis, that COVID‑19 is a disability, brings all of these issues into the realm of – sorry, I just saw you having a drink, sorry – these disability issues come in under the Disability Discrimination Act, and thereby under section 29 of that Act.

Now, that provides for a duty of care of disabled people, all of them, if you have a look at the objects of the Act, which – I think you were close to that, in 11 of 77, just before that, it would have come on page – the objects of the Act, of the Disability Discrimination Act, page 13, is:

to eliminate as far as possible, discrimination against persons on the ground of disability in the areas of access to premises, the provision of goods, facilities and services, existing laws and the administration of Commonwealth laws and programs.

Now, that has been based on the Convention on the Rights of Persons with Disabilities, and by providing, under section 29, for the administration of Commonwealth laws and programs, to make it unlawful for a person to perform any function or exercise any power under the Commonwealth.....makes a duty of care, that is a duty of care to the people who have disabilities.

As COVID‑19 has been imputed to the whole of Australia, now, or to the people of Australia, residents of Australia, they are then all imputed with a disability. So, when a person arrives at the door of Bunnings or Officeworks and one person has had a COVID vaccination – but there are not even vaccinations – they do not vaccinate against anything – they do not stop anyone transmitting it – they do not stop anyone getting infected by the disease – so a person who chooses, under the law – under the right to have any belief or the right to self‑determination – the right to do everything in Australia under the ICCPR and the International Covenant on Civil and Political Rights and Economic Social and Cultural Rights – it is not a mandatory law to have a vaccination.

So, the law has been manipulated – from the third defendant through the fourth defendant. Then, the first and second defendant who says that this is frivolous – how can anything to do with a disability be frivolous. It is ridiculous to even suggest it. In fact, I was quite disgusted and insulted by that suggestion that something of this nature could be frivolous or – anyway, so, basically ‑ ‑ ‑

HER HONOUR: Ms Luck ‑ ‑ ‑

MS LUCK: Yes.

HER HONOUR: ‑ ‑ ‑I might just ask you to pause for a minute. I have a question for Mr Tran. Mr Tran, do you want to say anything more to me in relation to my suggestion that I might dismiss your remittal application?

MR TRAN: I do not, your Honour.

HER HONOUR: Thank you.

MR TRAN: In certain cases where I have had the benefit of reading the drafts statement of claim, we would seek an order for summary dismissal, in light of that.

HER HONOUR: Thank you. Ms Gordon, you have heard what I have said to Mr Tran. Is there any reason why you would submit that a different course ought to be taken in relation to your client’s situation from that of the Commonwealth?

MS GORDON: No, your Honour. We are in a similar boat to the Commonwealth in that when we were asked to put on applications we had not had the benefit of the statement of claim. Having looked at the statement of claim, there is nothing in there that resolves the serious difficulties that we mentioned in our written submissions – as posing fatal problems, as we saw the application. When one looks at paragraph 107 of the statement of claim, there we see Ms Luck’s claim against Victoria articulated – again, in terms of breach of statutory duty.

I would gratefully adopt Mr Tran’s submission in terms of the authority on the Sex Discrimination Act – which we have heard, your Honour – and could I add, for your Honour’s benefit, a reference to section 125 of the Disability Discrimination Act.

HER HONOUR: Thank you, I saw that in your written submissions.

MS GORDON: Yes. Therefore, in light of what we now know about the statement of claim, there is nothing that would distinguish Victoria’s position from that of the Commonwealth.

HER HONOUR: Ms Gordon, I have to say I was not encouraging to speak at length. I was asking for a short answer to a question in the middle of Ms Luck’s submissions.

MS GORDON: Of course, I apologise, your Honour.

HER HONOUR: Thank you. Ms Luck, I think that there is still a question outstanding that I raised with you a little earlier – which is, what more would you want to say to complete the statement of claim that you filed on 13 April 2022?

MS LUCK: First of all, I had been in shock the other day when I discovered that the Victorian Government had again extended ‑ sort of very surreptitiously extended the orders and made order ‑ Pandemic (Open Premises) Order (No 6), which was made on 7 April, or shown on their website. I did not find it, I mentioned this in my affidavit about how I was so distressed because I had been looking on there to make sure that they were up to date and that I knew what I was doing for my – which was the statement of claim, which I said at the very beginning that as this hearing was going to come in two days after 12 April when the orders were supposed to be ended, I said I could not make my claims properly until after that date.

Now, I had practically completed it all but I had not – I have added some more since then. But I wanted to make sure that I had the right orders to do what we need to do today. That having been said, I was shocked and horrified and I felt very, very harassed by the fact that they were hidden at the bottom of the page and that I never heard – I listen to ABC news on the radio in the mornings, three bulletins, and the evening news and the day-to-day news on the TV, and I have not heard once that there were going to be extended orders since the 12th, so they have been actually in force for two days and there was no news whatsoever that this was happening.

So all these people that are going around doing this business, which is what is happening, your Honour, is that many of the people who have not been vaccinated and many of the operators of these places have been not questioning people about whether they are vaccinated or not. So that sort of under the cover of all this it has been going on in the sort of darkness, you know, but it is still happening.

HER HONOUR: Ms Luck, is that order that you are referring to the one that is mentioned at page 75 of 77?

MS LUCK: The two dots – the Pandemic Workplace Order number 7 ‑ ‑ ‑

HER HONOUR: Yes, I see that.

MS LUCK: ‑ ‑ ‑ and that one affects me in that I cannot ‑ as a sole trader, I cannot operate and have consultations at my home because my home is a work premises, at that point, when I am doing that. It is home when I am not, but if I actually have business in that place, it is a work premises and I have to be vaccinated.

In the Pandemic (Open Premises) Order (No 6) that prevents me from going to the movies, going to entertainment. I have got lists I am going to be presenting of all the things I could not do for the last five months - they are things that I would normally do on the Mornington Peninsula, the concerts, art shows, every imaginable thing. I cannot go to a hotel, I cannot go to a pub, I cannot go to a café, I cannot go to a restaurant. It is a really – I cannot tell you, when I saw that thing the other day that they had extended it to 12 July, I was in tears.

I was so - this, I believe, has gone to the point where it has become harassment and victimisation of people who are unvaccinated, and it is also totally in breach of, or contrary to the World Health Organisation’s recommendations, the United Nations Human Rights Committee - Commission – these things have been specified in these documents that I have mentioned in this, here, that to do what they have been doing here in Victoria is, really - they should be paying hugely exemplary and aggravated damages for what they have just done.

I appreciate that this is a lot – quite a complex issue, and more than that, quite a complex issue, it is a very complex issue that has taken me a lot of time to get together, and so in that respect it can never be called frivolous, and it also should not be sent to a – remitted to the Federal Court, which you were not minded to do, so you have said, and also, it should not be dismissed summarily.

It should be dealt with, and gone through, and between the parties – they have got a lot of problems between themselves, as well, that they need to deal with, and I should not be, and neither should any other unvaccinated person who has chosen not to deal with something – it is like saying to a person who has got cancer, that person has got cancer of such‑and‑such and they are going to have some chemotherapy; this person with cancer has got cancer of such‑and‑such, the same cancer, but they are not going to have chemotherapy – now, you do not stand at the door and say, sorry, you cannot have that, or you cannot have that, because you have not got chemotherapy, and that is an analogy that I think is a very apt one here. It is a very serious issue - yes.

HER HONOUR: I just might frame the question ‑ ‑ ‑

MS LUCK: Sorry.

HER HONOUR: ‑ ‑ ‑ in relation to the directions for the management of the proceeding, if it comes to that, what more is it that you would want to put in a further amended writ of summons or a statement of claim?

MS LUCK: Well, having looked at the third defendant, there are some serious issues to be brought up there, and they are constitutional issues, and they are also verging on misfeasance in public office – but I am not going there, but there are some issues in regard to the parliamentary scrutiny, or Parliamentary Human Rights Committee. They are issues, because that particular, section 22 of the AIRA, which gives the Minister the power to release information, personal information, if he thinks it is in the public interest, has been what has caused the problems in relation to this whole issue.

It was the form, the exemption form made, which was altered – it also involves other vaccination issues as well, and the rights of – human rights of parties to choose to vaccinate or not. Look, I am absolutely understanding of the need for these things, but there is still – this is
ultimately the most important right that we have in the world, human rights, in the whole issue of human rights, we have this right to choose what we do with ourselves and our bodies, and we have the right to do it for our children as well, when they are underage. So ‑ ‑ ‑

HER HONOUR: Mr Purton, is ‑ ‑ ‑

MS LUCK: ‑ ‑ ‑ this brings up – sorry – this brings up an abuse of power to the situation. And that is what I would be adding in there, and this could even extend to the other parties as well, except for probably not the first and second, but the fact that they made these comments about this being frivolous and everything, that has not gone down well, I tell you, and I would say abuse of power is something that has been quite a phenomenal issue throughout this, but I had not brought it up initially.

HER HONOUR: Mr Purton, is there anything more that you want to say to me today, including about costs?

MR PURTON: Your Honour, we would seek our costs – costs ought to follow the event, in my submission, so if we were to succeed on our application, we would seek our costs.

HER HONOUR: Mr Tran?

MR TRAN: Likewise, your Honour, we would seek our costs.

HER HONOUR: Ms Gordon?

MS GORDON: We are in the same position, your Honour.

HER HONOUR: I see. Ms Luck, is there anything more that you want to say to me, including in relation to costs?

MS LUCK: I think the costs in the circumstances should be reserved in the matter and I think the other parties should pay the costs, and I do ask with the deepest sincerity and wish you to make an injunction of a kind that, even if it is only of a temporary nature, that it be made to prevent Easter being ruined as well as Christmas, New Year, every other imaginable holiday that we have had in the first part of this year and last year, so that the people who have – can go out and celebrate, and it is just shocking. Shocking. Anyway, yes, that is all, your Honour.

HER HONOUR: Thank you. Yes, Ms Gordon.

MS GORDON: I am sorry, your Honour, I spoke too soon without instructions on costs, and my instructions are that if your Honour were minded to summarily dismiss the matter, my client would not seek costs.

HER HONOUR: Thank you, Ms Gordon.

I will reserve my decision on the various applications and deliver my judgment next Tuesday.

Could you please adjourn the Court.

AT 12.02 PM THE MATTER WAS ADJOURNED