Davis v Minister for Health [2022] NSWCATAD 342

Davis v Minister for Health [2022] NSWCATAD 342

Although expiry or repeal of the public health orders did not automatically deprive the Tribunal of authority to deal with the review, the proceedings had no real practical significance or effect. Any review order would not affect Ms Davis' employment termination because an independent NSW Health Determination under s 116A of the Health Services Act 1997 (NSW) remained as an alternative basis for termination; there was no record to correct or reputational collateral implication warranting continuation; and the asserted public importance would not justify using Tribunal resources for what would effectively be hypothetical or advisory determination. The application was therefore presently...

Jurisdiction
Australia
Judgment Date
26 October 2022
Procedural Posture
Administrative Review of Public Health Orders Relating to COVID 19 Vaccination of Health Care Workers / Application by the Minister for Dismissal of the Proceedings and Application by the Applicant for Leave to Amend After Remittal From the NCAT Appeal Panel
Outcome
Leave to amend refused and application for administrative review dismissed.
Legal Topics
['administrative Review' 'public Health Orders' 'covid 19 Vaccination of Health Care Workers' 'summary Dismissal' 'leave to Amend' 'practical Utility' 'correct and Preferable Decision']
['administrative Law' 'public Health Law' 'tribunal Procedure' 'employment'] ['administrative Review' 'public Health Orders' 'covid 19 Vaccination of Health Care Workers' 'summary Dismissal' 'leave to Amend' 'practical Utility' 'correct and Preferable Decision']

Case Brief

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Procedural Posture

Administrative Review of Public Health Orders Relating to COVID 19 Vaccination of Health Care Workers / Application by the Minister for Dismissal of the Proceedings and Application by the Applicant for Leave to Amend After Remittal From the NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether the administrative review application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) because the public health orders were no longer operative and the proceedings were lacking in substance.' 'Whether leave should be granted to amend the application to challenge directions under PHO1, PHO2, PHO3 and PHO4.' "Whether determination of the review would have any practical effect on Ms Davis' termination of employment." 'Whether the proceedings would correct the record, vindicate Ms Davis or affect her reputation.' 'Whether asserted matters of public importance justified continuing the proceedings despite the expiry or repeal of the public health orders.']

Ratio Decidendi

Although expiry or repeal of the public health orders did not automatically deprive the Tribunal of authority to deal with the review, the proceedings had no real practical significance or effect. Any review order would not affect Ms Davis' employment termination because an independent NSW Health Determination under s 116A of the Health Services Act 1997 (NSW) remained as an alternative basis for termination; there was no record to correct or reputational collateral implication warranting continuation; and the asserted public importance would not justify using Tribunal resources for what would effectively be hypothetical or advisory determination. The application was therefore presently...

Court Disposition

Leave to amend refused and application for administrative review dismissed.

Orders

  • ['Leave to amend the application is refused.' 'The application for administrative review lodged on 23 September 2021 is dismissed.']