Davis v NSW Minister for Health [2023] NSWCATAP 211

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Davis v NSW Minister for Health [2023] NSWCATAP 211 Hearing dates: 5 May 2023; further written submissions dated 18 May 2023 and 6 June 2023 Date of orders: 28 July 2023 Decision date: 28 July 2023 Jurisdiction: Appeal Panel Before: Armstrong J, President A Britton, Deputy President Decision: (1) Leave is given to the appellant to amend the grounds of appeal. (2) Leave to appeal is refused. Catchwords: APPEALS –– appeal from summary dismissal of administrative review application –– interlocutory decision of Tribunal requiring leave to appeal –– consideration of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– "lacking in substance" –– leave refused ADMINISTRATIVE LAW –– application for administrative review of directions contained in a public health order –– where all four relevant public health orders had been repealed or expired prior to the hearing –– whether proceedings "futile", "of no practical effect" or "lacking in utility" WORDS AND PHRASES –– meaning of "lacking in substance" Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 42B Administrative Decisions Review Act 1997 (NSW), s 55(2) Administrative Decisions Tribunal Act 1997 (NSW), ss 73(5)(g)(ii), 73(5)(h) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a) Civil and Administrative Tribunal Act 2013 (NSW), ss 28(2), 36(2), 55(1)(b), 80 Courts Legislation Further Amendment Act 1997 (NSW), Sch 1.1[8] Equal Opportunity Act 1984 (Vic), s 44C Health Services Act 1997 (NSW), s 116A(1) Public Health Act 2010 (NSW), s 7 Racial Discrimination Act 1975 (Cth) Strata Schemes Management Act 1996 (NSW), s 185(4) Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 3) 2021 Public Health (COVID-19 Vaccination of Health Care Workers) Order 2022 Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 AVS Group Australia Pty Ltd & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24 BDK v Department of Education and Communities [2015] NSWCATAP 129 Chopra v Department of Education and Training (2019) 60 VR 505; [2019] VSCA 298 Davis v Minister for Health [2021] NSWCATAD 310 Davis v Minister for Health [2022] NSWCATAD 342 Davis v Minister for Health [2022] NSWCATAP 115 Fearnley v Australian Fisheries Management Authority (2006) 94 ALD 519; [2006] FCAFC 3 Fox v Commissioner of Police, New South Wales Police Force [2016] NSWCATAD 77 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) House v The King (1936) 55 CLR 499; [1936] HCA 40 Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Larter v Hazzard [2022] NSWCA 238 Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 Nagasinghe v Worthington (1994) 53 FCR 175; [1994] FCA 766 NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 Owners Corporation of Strata Plan 4521 v Zouk (2007) 69 NSWLR 61; [2007] NSWCA 23 Peter Evan John Morris v Crown Equipment Pty Ltd - re Termination of employment - frivolous, vexatious or lacking in substance [2009] FWA 317 Re Fearnley and Australian Fisheries Management Authority (2005) 87 ALD 159; [2005] AATA 147 Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366; [1995] AATA 160 Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102 Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 Ybasco v Director General, Department of Transport [1999] NSWADT 28 Texts Cited: Administrative Decisions Tribunal Bill 1997 (NSW) Courts Legislation Further Amendment Bill 1997 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 November 1997; Courts Legislation Further Amendment Bill 1997 Second Reading Speech Category: Principal judgment Parties: Danielle Davis (Appellant) NSW Minister for Health (Respondent) Representation: Counsel: D Nagle (Appellant) T Prince (Respondent)