Henry & Ors v Hazzard [2021] NSWSC 1218

Supreme Court New South Wales

Medium Neutral Citation: Henry & Ors v Hazzard [2021] NSWSC 1218 Hearing dates: 24 September 2021 Date of orders: 24 September 2021 Decision date: 24 September 2021 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: Subpoena set aside Catchwords: PRACTICE AND PROCEDURE – subpoena seeking documents "relied" on by the Premier when making alleged admission of law – Premier not a party – no proper forensic purpose – no question of principle Legislation Cited: Public Health Act 2010 Category: Procedural rulings Parties: Natasha Henry (First Plaintiff) Selina Crowe (Second Plaintiff) Julie Ramos (Third Plaintiff) Hohepa Waapu (Fourth Plaintiff) Kamran Khan (Fifth Plaintiff) Sandi Greiner (Sixth Plaintiff) Bradley Hazzard (Defendant) Representation: Counsel: Dr J Harkess; Ms V Plain (Plaintiffs) Mr J Kirk SC (Defendant)

Solicitors: G & B Lawyers (Plaintiffs) Crown Solicitor's Office (Defendant) File Number(s): 2021/252587

EX TEMPORE Judgment

(Revised from transcript) 1. Listed next week on 30 September 2021, is the final hearing of urgent proceedings seeking to challenge a number of public health orders, principally, those public health orders that involve directions that particular people in particular occupations not be able to work from a particular date unless they have had either one or two vaccinations against COVID‑19. 2. A variety of grounds are specified, some involving constitutional arguments and the rest involving the scope of the power of the relevant minister to make the order under the Public Health Act 2010. Directions requiring the preparation of the matter on an urgent basis have been made. 3. The plaintiff has caused to be issued a subpoena directed to the Proper Officer of the Department of Premier and Cabinet which sought the production of: "Any documents that the Premier of New South Wales, the Honourable Gladys Berejiklian MP, took into account prior to making the following statement: 'Well, firstly, we weren't able to make the vaccines mandatory. It was actually not in our power to do that' during an interview on a television program on 1 September 2021". 1. The recipient of the subpoena, being the Proper Officer of the Department of Premier and Cabinet, has applied by notice of motion to set aside the subpoena on various bases. In short, they involve an interrelated complaint that the subpoena lacks any real forensic purpose and the difficulty raised by requiring a subpoena in those terms for a matter that is being urgently prepared. 2. The suggested forensic relevance of the statement of the Premier appears to be an admission by her, so it is said, that there was no legal power to make the public health orders. About that supposed admission, two matters should be noted. The first is that the Premier is not a named party, nor is she the person conferred with authority by the Public Health Act to make the orders in question. I am told, and would readily expect, that the evidence will reveal that the Premier was involved in the decisions that led to the issuing of the public health order. However, that is a fundamentally different matter to suggesting that she is in a position to make any such admission. 3. Second, it must always be remembered that the question of whether or not there is legal authority to make the impugned orders is ultimately a matter for the Court, and thus what is involved is an alleged admission of law. Had any alleged admission been made by a party then that would, of itself, be of little if any forensic value when all that is sought is declarations as to the validity of the instruments in question. 4. When those matters are considered, along with the fact that the matter is being urgently prepared, in my view, it follows that am I satisfied that the subpoena does not have a proper forensic purpose and that is otherwise, for case management reasons, not appropriate to put the agencies of the State in the position of having to addressing the subpoena, especially one drafted in those terms. 5. For those reasons, the subpoena is set aside.