In Knowles v Commonwealth of Australia [2022] FCA 741 Mortimer J states
[11] In its initial form, the case as pleaded ranged far and wide, and sought some unusual relief. For example:
(a) the statement of claim alleged:
(i) that: The implementation of the National Plan and the steps that were being undertaken in respect of it were … being implemented or undertaken in the context of a New World Order. … The New World Order is a form of government, having as its purpose the consolidation of the world’s economies to a single economy, and in which the international community are intending to assume responsibility for localised peace and security, with the active support of the world’s major powers.
(ii) the “State Orders” were invalid by contravening the Disability Discrimination Act 1992 (Cth), in that: the fact that each of the Applicants and the Group Members are susceptible to an infectious disease at any time in the future, means as a consequence that they thereby have a disability for the purposes of section 48 of the Disability Discrimination Act 1992 (Cth).
(b) the originating application sought:
(i) a declaration that the members of the Australian population who received vaccinations “received them in circumstances that amounted to an assault and a battery”; and
(ii) an order directing the Prime Minister of Australia, together with each of the Premiers and Chief Ministers of the States and Territories of Australia) to meet at the entrance to the Embassy of the Republic of Poland in Canberra and deliver the apology set out in the second schedule to the statement of claim. That draft apology included language to the effect that Prime Minister Scott Morrison, on behalf of himself and the Premiers and Chief Ministers, acknowledged responsibility for putting Australia in danger of falling into a state of lawlessness and totalitarian rule, and that his actions and behaviour constituted a breach of the Nuremberg Code.
The Federal Court was underwhelmed, with Mortimer J stating
218 The applicants contend that the respondents owed them a duty of care that can be characterised as a duty to “take all reasonable steps to ensure that the steps undertaken by them to compel injections and for the purposes of the National Plan against the Australian population, would cause or do no harm in particular to the Applicants”: see ASOC [90]. As formulated and despite the reference to the applicants, it is clear the duty of care is said to be owed to the entire Australian community. The applicants contend this is because the respondents:
assumed a role protective of the community as parens patria with respect to private health and the Applicants in particular.
In so far as concerns the actions of governments, that they govern for the peace, order and good government of the people of Australia as provided for in the Public Health statutes of each Respondent, and that the actions of government should be carried out by reference to the sensible limitations and containment of Executive and Administrative power, by lawful means.
(Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.)
219 In [92] of the ASOC, the applicants allege the respondents breached the duty of care as pleaded in the following particulars to that allegation:
(a) Failure to adequately or at all investigate the efficacy of the proposed mRNA products.
(b) Failure to adequately or at all investigate the safety of the proposed mRNA products.
(c) Failure to adequately or sufficiently warn the Applicants of adverse effects or possible adverse effects.
(d) Failure to consider known antiviral treatments including prophylactics and other antiviral medical treatments. (e) Subjecting the population at large to the provisionally approved gene therapy treatment to the exclusion of other available or potential cures and proven antiviral treatments
(f) Failing to safeguard against State or Territory orders, including the Measures, that operate to vitiate consent including the applicants’ consent to provisionally approved gene therapy products.
(g) Failure by each Respondent to take reasonable steps to ensure that the exercise of executive power by the National Cabinet was lawful;
(h) Failure to take reasonable steps to make and develop Australian products reasonably available as potential cures and antiviral treatments. (Original emphasis; underlining and strikethrough, indicating amendment to the statement of claim filed on 11 October 2021, omitted.)
220 The damage the applicants allege they have suffered is pleaded as: adverse effects of COVID-19 injections, heart attack including myocarditis and periocarditis, blood clots, stroke, depression, PTSD, financial loss, psychiatric harm “and other sequalae”, stress and disappointment, loss of business, loss of quiet enjoyment of life, social ostracization, bullying and harassment and loss of opportunity: see ASOC at [93A].
221 There are no pleadings of material fact in [20] of the ASOC which allege that any of the applicants have suffered any of the physical consequences alleged.
222 The State of Victoria made the principal submissions on the negligence pleadings, supported by the other respondents. The respondents submit the Court need go no further than the alleged duty of care in order to find the requirements of s 31A of the FCA Act satisfied. They submit what is alleged is a novel and “extraordinarily broad and ill-defined” duty of care, of a kind the applicants have no reasonable prospects of establishing. In the alternative, the respondents submit that the allegations are so inherently defective that they fail to disclose a cause of action, and should be struck out. The lack of prospects should lead the Court to refuse leave to re-plead.
223 The respondents point to certain features of the alleged duty which illustrate its legal flaws. These are that:
(a) the alleged duty is formulated as one to achieve a particular result (eg “ensure that the steps undertaken … would cause or do no harm”: ASOC at [90]);
(b) the duty appears to be allegedly owed to all members of the Australian community;
(c) there is no differentiation between reasonable steps necessary to prevent the particular types of harm pleaded; and (d) no standard of care required of each of the respondents is identified.
224 The respondents also contend that, read as a whole, it is apparent the applicants’ real case is that the decision to “mandate vaccination” was itself negligent and that, acting reasonably, the respondents would not have “mandated vaccination”.
225 As I have noted, there are no pleadings setting out which of the applicants have suffered which of the harms (physical, mental and economic all being identified) set out in the pleadings. The respondents make this point, and add that the pleading provides no causal link between the alleged breach of duty and any of the harm allegedly suffered.
226 Returning to the novelty of the alleged duty of care, and the applicants’ prospects of establishing such a duty, the respondents refer to Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [3], [5] and [93]-[94] and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [103]-[104].
227 They submit there are three key features that preclude recognition of the duty of care alleged by the applicants:
(a) it seeks to impose liability for core policy-making functions of the government respondents, performed in a highly political context and involving quasi-legislative powers;
(b) ascertaining the duty of care would create incoherence in the law, as it would: (i) be directly inconsistent with the statutory frameworks provided for in public health statutes in each of the respondent jurisdictions for the making of public health protection decisions (citing Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270 at [20]-[22]), including by impermissibly forcing decision-makers to give disproportionate weight to the potential liability for any type of loss (including financial loss) that might result from the exercise of the relevant public health powers; and (ii) impermissibly discourage repositories of powers from taking population level steps and measures, (citing Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331); and
(c) it would be impossible to confine the class of persons to whom the alleged duty was owed within reasonable limits (citing Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [50]), because: (i) the duty would be owed to all persons potentially affected by the relevant statutory public health powers, which would include large parts of, if not all, of the population of Australia; and (ii) the duty would require the duty holders to protect individuals and businesses from pure economic loss, and the applicants’ case ignores the cautious and particular approach Australian courts have required before imposing a duty to protect others from suffering economic loss, especially in terms of causation and reasonable foreseeability.
They refer to Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [93], [232], [405], and Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [21]-[22], [46]-[47].
228 In oral submissions, counsel for the applicants emphasised that this proceeding was the only one with a private law cause of action, and emphasised the importance of discovery in that context. He conceded the duty of care alleged was a novel one, but submitted the situation in respect of the COVID-19 pandemic was unusual in itself. He then submitted the three features upon which the respondents relied were not impediments to the recognition of a duty of care of the kind alleged. He submitted:
(a) Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 supported the availability of an alleged duty owed to a large number of people, and explained how existing concepts could be used to preclude any liability from being indeterminate;
(b) there is no inconsistency because (apparently at least insofar as the alleged duty reaches conduct by National Cabinet and the National Plan) there are no statutes supporting National Cabinet so there is nothing to create any inconsistency with the alleged duty. He submitted that the scope of the alleged duty: would need to be dealt with on the whole of the evidence at trial, particularly the production of the National Cabinet minutes, agendas and notices of meeting and any reports to it.
(c) on the respondents’ objection that the negligence allegations went to policy and political matters, counsel submitted: whilst, ultimately, the question as to whether or not to make any response to the pandemic was open and could be described as a policy decision, the question of the implementation of that at the level to which we’ve referred does not do so, at least in any respect that would circumscribe a scope of law provision and a duty of care so as to exclude it.
229 In response, senior counsel for Victoria submitted:
(a) Three Rivers was a misfeasance case which did not involve the identification of a novel duty of care, and, to the extent it deals with negligence, it does so by reference to the concept of proximity being a concept no longer accepted in Australia as a touchstone for ascertaining the existence of a duty of care; and
(b) the submission at [228(b)] above ignores the fact that the duty of care alleged includes the making of the measures by each of the states and territories pursuant to the statutory powers in state and territory legislation.
Hence, an “inevitable inconsistency arises”, he submitted.
230 NSW made a particular submission on the negligence pleading. It referred to s 132 of the NSW PH Act, which provides:
132 Exclusion of liability of the State and others
(1) This section applies to civil proceedings for damages or other compensation brought against the State or any authority of the State.
(2) Damages or other compensation is not payable in any such civil proceedings to which this section applies to the extent that the claim is based on alleged negligence, defamation or other breach of duty (including statutory duty) arising because of the exercise of, or the failure to exercise, in good faith any function under this Act.
(3) This section does not affect any entitlement to compensation expressly conferred by this Act.
231 Counsel for NSW submitted this was never addressed by the applicants and provides a complete answer to their private law case against NSW.
My conclusions
232 I agree with the respondents’ submissions that it is a notorious fact, of which the Court can take judicial notice, that statutory public health powers in the various States and Territories have been used throughout the COVID-19 pandemic to take measures that apply to all, or large parts, of the population of Australia. The principal Commonwealth measure impugned – the 2020 Biosecurity Declaration, applied nationally. The impugned Measures have at one point or another applied to a large proportion of the Australian population, if not all of it.
233 The applicants did not shy away from this proposition. They seek to run their negligence case on the basis the duty is owed to all members of the community affected in a negative way by the impugned Measures. In that sense, while the proceeding is no longer continued as a representative proceeding, the negligence claim is in substance exactly that. This breadth of the persons to whom the alleged duty of care is said to be owed, without any attempt to identify or delineate the material facts relating to their circumstances, is one of the fatal flaws in the framing of the applicants’ case in negligence. It is exacerbated by the failure to articulate specific links between the making of a particular Measure and the alleged harm said to have been caused even to a specific applicant. This detail is wholly absent. In my opinion that is in large part because the harm suffered by the applicants is of the same nature as the harm the applicants’ case assumes has been suffered by a large (unidentified) proportion of the Australian community.
234 However, this is not the only flaw.
235 As to the first key feature relied on by the respondents, I consider the respondents are correct that the way the duty of care is framed here invites the Court to pass judgment on the reasonableness of what was fundamentally a complex, multi-dimensional and necessarily changeable government policy response to a world-wide pandemic, where different choices were made at different times by different governments, depending on their own assessment of the circumstances in the area for which they held political responsibility. It is precisely the kind of situation to which the observations of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [6] are directed:
Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature.
236 In circumstances where there are exercises of statutory power that create or exacerbate a risk of harm, there might be less emphasis on whether there is incoherency or incompatibility with a posited duty, or whether the nature of the conduct or decision as involving matters of policy should preclude the duty arising: see generally the reasons of Beach J in Minister for the Environment v Sharma [2022] FCAFC 35 at [356].
237 At the point of principle, that might well be correct. However, the applicants’ prospects of success are not improved by reliance on such an analysis, which in any event they did not rely upon. That is because in the present circumstances, the legislation authorising the impugned measures clearly makes a series of express policy choices about what are the appropriate responses to the pandemic situation in each jurisdiction, and in that sense the applicants’ posited duty of care is inconsistent, and indeed incompatible, with the policy which the Measures evince: cf Sharma at [612]. Indeed, the whole point of the applicants’ negligence allegations is to allege that the outcome – the effect of the impugned Measures on them – was a breach of the respondents’ duty of care. At its base, their case seeks to impugn the (changing) policy choices made by the various government respondents. Gleeson CJ’s observations in Graham Barclay Oysters are in my opinion directly applicable. Combined with the other flaws in the applicants’ negligence case, this is the clearest of cases where those observations should be applied. See also 5 Boroughs at [43] for a similar conclusion about wide ranging allegations against policy responses to the pandemic.
238 A contrast could be drawn between the applicants’ alleged duty of care and the duty of care pleaded in 5 Boroughs. In that case, the plaintiffs’ case targeted the infection prevention and control measures used in hotel quarantine in Victoria. John Dixon J described the first plaintiff’s case in this way at [1]: It contends that these restrictions were the inevitable result of COVID-19 transmission events at two hotel quarantine sites caused by the negligent failure of the State to implement effective infection prevention and control measures at the sites.
239 The much more limited nature of the duty alleged is apparent from [53]-[56] of his Honour’s reasons for rejecting the summary dismissal application on the negligence claim: The plaintiff’s posited duty in this case, at least in the context of the breaches alleged, targets particular failures on the part of the relevant Ministers and Secretaries who implemented hotel quarantine. These failures in ‘effective infection prevention and control measures’ essentially involved lack of adequate supervision, training, audits and the supply of protective equipment. While these factors will affect the allocation of resources, in that more supervision or training, or more protective equipment might require more resources, it is difficult to see at this early stage in the proceedings, and without any evidence about the significance of resources required to meet the posited standard, how such impact is any different from any duty of care recognised against the State in negligence. If there is ever any required level of conduct that the State should achieve, meeting that standard will be easier to achieve with more resources. At face value, exercising more precise care over safety measures in an existing program may lie outside of core policy-making functions or quasi-legislative functions, and fall within the operational category. Notionally, even given an existing set of resource constraints, it does not seem fanciful that the defendants’ conduct in implementing infection control measures could be subject to curial assessment on reasonableness criteria. What a reasonable functionary might do in such circumstances may not rely only on the political balancing of competing interests, or on the issue of resources. These are factual inquiries. The detention notice, it would appear, already determined exceptions that would apply to returning travellers in quarantine, and the policy decision about sequestering travellers in hotels as opposed to purpose-built detention centres or prisons had already been made. Those interests had been balanced. Given that policy framework, how rigorously each hotel was supervised, regulated, or audited may, on careful analysis, involve administrative or operational decisions capable of assessment to an objective standard.
240 That is more than a far cry from the way the applicants have framed their negligence case.
241 A further feature which can be contrasted with the 5 Boroughs proceeding is that rather than alleging a duty of care owed by one State government to a specific group of people, the present proceeding alleges – without any material distinctions – duties of care – of precisely the same kind – owed by federal, State and Territory governments to the entire community of which, in substance, the applicants are part. There is no attempt to separate out the circumstances in each State and Territory, and the circumstances facing the federal government, and to plead a duty of care which is responsive to those different circumstances. Although the proceedings do select Measures at a particular point in time, the way the negligence case is framed is not tied in any detail to that particular point of time. It a jumble of general allegations against all the respondents, lumped together. It is embarrassing and inappropriate, as well as hopeless.
242 Finally, I accept the respondents’ submissions that the posited duty is “fundamentally inconsistent with the effective exercise of those statutory public health powers”. It is also practically impossible in a circumstance such as the COVID-19 pandemic. No government can implement responsive public health measures to a pandemic that “cause or do no harm”. The entire situation involves weighing the potential harm apprehended from the spread of the COVID-19 virus against the impacts on a community of measures designed to minimise that harm, recognising the harm caused by the virus cannot be avoided altogether. The effective exercise of public health powers will necessarily have adverse impacts on some or perhaps most members of the community. Those impacts cannot be entirely avoided and at the level of generality and breadth it is pleaded, the posited duty is incompatible with the functions, both executive and statutory, to be performed in order to deal with a public health crises affecting nations across the world.
243 It is true that there can be dangers in determining whether a novel duty of care has any reasonable prospects of success, before trial and fact finding, and separately from the determination of the other elements of the tort. This is the point made by Beach J in Sharma at [536]-[538], which with respect has force.
244 Nevertheless, there are so many flaws in the applicants’ negligence case that I am satisfied those dangers should not preclude judgment in favour of the respondents.
245 For completeness, in any event I accept the submissions of NSW that there is an absolute bar against a claim in negligence against it by reason of s 132 of the NSW PH Act.
