Vaccine mandate challenge ‘almost certain to succeed’ if not for 11th hour amendments court hears

A challenge to the NT government’s Covid-19 vaccine mandate would have been ‘almost certain to succeed’ if not for the passage of last minute legislation to nix the lawsuit, a court has heard.

A CHALLENGE to the NT government’s Covid-19 vaccine mandate would have been “almost certain to succeed” if not for the passage of last minute legislation to nix the lawsuit, a court has heard.

Buslink driver Ray Phillips, Coles worker Conan Thomas Hammett and Power and Water Corporation employee John Anstess took the government to the Supreme Court last year in a bid to overturn the mandate.

But just weeks before the case was due to be heard, the NT government passed an amendment retrospectively deeming the chief health officer’s direction lawful in all circumstances.

On Wednesday, the trio’s lawyer, Danial Kelly, told the court his clients had been deeply affected by the mandate and put to considerable cost in launching the legal challenge.

“The plaintiffs lost their livelihoods through loss of income and business, at least one Aboriginal plaintiff, Mr Anstess, lost his ability to continue coaching his Aboriginal children in club sports,” he said.

“The plaintiffs were fully prepared for trial having engaged solicitors, an expert witness in Professor Nikolai Petrovsky, counsel, Julian Burnside AO QC.

“Flights and accommodation arrangements had been made for Mr Burnside and Prof Petrovsky, who both reside interstate.”

In seeking to force the government to pay the men’s costs after withdrawing the action, Mr Kelly said the passage of the amendments demonstrated the government knew it was “almost certain” to lose the case.

Julian Burnside QC was set to represent the plaintiffs at trial

“Our submission is that the only reason the second defendant did procure the retrospective legislation was because they formed the view that, had the matter gone to trial, the plaintiffs were likely to succeed due to the directions being found unlawful,” he said.

Mr Kelly said the legislation was “an option the defendants knew about from a very early stage of the proceedings” and “knowingly conceal(ed) the knowledge that it was to become futile”.

“Due to that late notice, that amounts to a perverse encouragement of the defendants to continue their action, knowing its futility, such that the conduct of the defendants may be considered misconduct that ought to result in an order to pay the plaintiffs’ costs,” he said.

In reply, Solicitor-General Nikolai Christrup SC, said the government had not acted unreasonably and “the court cannot, and should not seek to determine what would have been the outcome” of the trial.

Nikolai Petrovsky would have been the plaintiff’s expert witness.

“In particular, your honour, the suggestion that the Territory all along intended to pass legislation but deliberately kept this back from the plaintiffs not only finds no support in the evidence, it is in fact contradicted by it,” he said.

Mr Christrup said while the amendments had the effect of scuttling the court challenge, that was not their sole purpose and they were also intended to “create certainty in the minds of the public”.

“It certainly cannot be said that the reason for the provisions was that the Territory formed a view that it was bound, or very likely, to lose the proceedings so they cannot be seen as a surrender or as confirmation that the plaintiffs position, or challenge was likely to succeed,” he said.

Originally published as Vaccine mandate challenge ‘almost certain to succeed’ if not for 11th hour amendments court hears