Lawyer argues AFLW player Deni Varnhagen’s anti-vaccine challenge should not be heard by a sitting judge due to perceptions of ‘bias’
Two police officers have joined an AFLW star’s vaccine mandate challenge – as their lawyer makes a bombshell claim no sitting judge may be eligible to hear the case.
Police & Courts
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AFLW player Deni Varnhagen’s Covid vaccine mandate challenge has been joined by two SA Police officers and may have to be determined by a retired or interstate judge, a court has heard.
The Supreme Court on Thursday was urged to hear Varnhagen’s challenge the week before the state election – otherwise she and her co-litigants will suffer “prejudice” due to delay.
It also heard a Flinders University academic who claims Australian authorities have “ignored” a vaccine he developed will give expert evidence on the group’s behalf.
The court was warned any judge assigned to the trial may be asked to disqualify themselves because of the Courts Administration Authority’s own staff vaccine mandate.
Counsel for the group said it may create “an apprehension of bias” in the minds of “a reasonable bystander” were a decision to come from a judge subject to a mandate.
Outside court, solicitor Loretta Polson said her clients’ case arose from both legal and scientific grounds.
“We will be putting before the court compelling scientific and medical evidence to demonstrate that vaccination does not prevent Covid transmission,” she said.
Varnhagen – who was placed on the club’s inactive list – fellow nurse Courtney Milligan, teacher Craig Bowyer and childcare worker Kylie Dudson are challenging the mandate.
They claim authorities failed to exclude all “obvious, alternative, compelling, reasonably practicable” alternatives that do not affect “common law rights or freedoms to bodily integrity”.
On Thursday, barrister Simon Ower QC said the group had been joined by SA Police Sergeant Adam Zacary Cook and Probationary Constable Rosalyn Smith.
He asked the trial be set down for the week of March 14, pending the availability of an appropriate sitting or retired SA judge, or one presiding interstate.
“It will be a brief trial, we estimate three days,” he said.
“Professor Nikolai Petrovsky of Flinders University will give evidence in relation to certain technical matters relating to the vaccine.”
Professor Petrovsky, who developed a vaccine that is being used in Iran, has claimed he faces the sack for insisting on only taking his own treatment.
Solicitor-General Mike Wait SC, for the government, said he would oppose any bid to disqualify an SA judge and had yet to see Professor Petrovsky’s expert report.
He said the government would need to receive that report, and have time for its own experts to respond, before a March 14 trial could be guaranteed.
Justice Judy Hughes said it was clear all parties were making their best efforts to be ready for a trial on that date.
“I indicate I will have a conversation within the court that enables it to be clear that these dates are what is proposed for this important matter to be determined,” she said.
She ordered the parties provide all relevant documentation to one another ahead of a directions hearing next month, when the trial date will be set.
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