Axed workers class action and Mornington Peninsula cafe owner’s curfew challenge latest in Andrews Govt legal fight
A Supreme Court judge has acknowledged the “very important” case challenging the Andrews Government’s curfew, but it’s not the only legal battle the government is facing.
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A court case challenging Daniel Andrews’ curfew laws needs to be heard as a matter of urgency, a Supreme Court judge has said, while sacked workers launch a class action against the Victorian government.
Lawyers for small business owner and single mum Michelle Loielo, who is leading the charge against the nighttime lockdown laws, said the outcome of the case will affect not only her client, but “millions of Victorians”.
“There has never been a case in the history of this country of the nature that is presently before Your Honour,” barrister Vanessa Plain told the court on Wednesday afternoon.
Ms Loielo, who runs a cafe on the Mornington Peninsula, is challenging the legality of the 9pm-5am curfew, saying she has seen a 99 per cent drop in turnover since it came into effect.
She has argued the Stay at Home Directions violates her right to liberty and free movement and should be quashed, or alternatively is seeking a declaration be made that the detention is unlawful or invalid.
Ms Plain said the Premier, Chief Health Officer and Chief Commissioner of Police had all made public statements which “credibly suggest there is serious doubt as to whether there is legitimate basis for the curfew directive under this particular legislation”.
Ms Plain urged Justice Tim Ginnane to immediately refer the case to the Court of Appeal given “the nature of the case was so grave and has such unique ramifications for the community at large”.
Justice Ginnane acknowledged these were “very important matters” but would not make a decision today whether to refer the case as the legal team for the defendants had only received court documents late on Wednesday morning.
“This case requires urgent hearing,” Justice Ginnane said.
“But there are all sorts of reasons why I shouldn’t make the decision today,”
Justice Ginnane acknowledged it was a “highly unusual case” which affected those living in Victoria.
The matter will return to court on Tuesday morning.
It comes as the Andrews Government is facing a new legal challenge over the disastrous coronavirus outbreak, with a class action on behalf of workers axed during the lockdown.
A writ has been filed in the Supreme Court that claims the second wave was “substantially caused by the breaches of the hotel quarantine program” and alleges senior ministers Jenny Mikakos and Martin Pakula had a “breach of duty” that contributed to the economic mayhem now being felt in Victoria.
The lead plaintiff in the class action is Jordan Roberts, a 21 year-old who lost his job at a Tullamarine warehouse last month after stage four restrictions were imposed on Melbourne.
Tony Carbone, managing partner of Carbone Lawyers, the firm who are representing Mr Roberts, told the Herald Sun they had launched a class action for people who had lost their jobs and income or suffered psychiatric injuries because of the lockdown.
“But for the Andrews Government’s debacle of the handling of the hotel quarantine, the genomic report that was commissioned by them has come back and said 99 per cent of the spread of the virus was caused by that debacle — and that’s what this class action represents.”
Mr Carbone said the people his firm was representing were a cross section of the community — from factory workers to hairdressers and real estate agents.
“It picks up a whole gamut of people, including businesses who were sole traders who have paid themselves wages and who have lost those ages. It’s extraordinary the number of people this class action picks up.”
He said many employers had told him they were only keeping people on their books because of JobKeeper.
“All the people I speak to are actually devastated. The one thing they do say that is giving them heart is that [the legal action] means there is some light at the end of the tunnel.”
Mr Roberts said he was “totally devastated” by the loss of his job because he couldn’t now “make ends meet” after taking a loan to pay for a car.
He didn’t resent his employer, who he knew was also struggling. Mr Roberts had been looking for work “but there’s nothing out there” which was adding to his anxiety and stress.
The immediate future had a “glum outlook”, but he hoped his former employer would be able to re-employ him if the economy picked up.
WHY MS LOILO’S CHALLENGING MELBOURNE’S CURFEW
A small-business owner has launched a legal bid to overturn Daniel Andrews’s curfew that could force the government to pay back all fines.
Single mother Michelle Loielo is taking on the state government after revelations the curfew, a Victorian first, was enforced without specific medical advice.
Ms Loielo, who has lodged a writ with the Supreme Court, argues the curfew was an illegal captain’s call by Mr Andrews that unfairly infringed on the rights of Victorians.
She has asked the Supreme Court to either quash the stay-at-home direction that includes the curfew — which was introduced to help battle Victoria’s deadly second COVID wave — or rule it unlawful.
“I don’t want money, I just want it to be noted that somebody really stood up and said ‘this is not right’,” she said on Tuesday.
Victorian Deputy Public Health commander Associate Professor Michelle Giles, who signed off on the directions, is listed as the defendant in the writ.
Lawyers for Ms Loielo will argue Prof Giles acted at the behest of the Premier, with no independent consideration.
An originating motion filed with the court argues the curfew — not seen even in either of the world wars — is unlawful, illogical and invalid.
Ms Loielo’s lawyer, Omar El-Hissi, director at NOH Legal, said it had been imposed arbitrarily and without any medical basis.
“The law says that this public official must issue such a directive exercising her own independent medical judgment,” Mr El-Hissi said.
“Ms Loielo claims that this official has been dictated to by the Premier.
“Ms Loielo claims that her human rights of liberty and freedom of movement have been impacted by this arbitrary decision.”
Mr Andrews has defended the decision to impose the 9pm-5am lock-in, shortened this week by an hour but which could run beyond September 28.
The curfew has been successful in limiting movement and helping police enforce lockdown restrictions, Mr Andrews argues.
Chief Commissioner Shane Patton has claimed police did not request the curfew and were told about it only hours before it was introduced.
Chief Health Officer Brett Sutton said he did not recommend the curfew.
Ms Loielo, who runs Unica Cucina e Caffé in Capel Sound, said her business had been decimated since the imposition of the lockdown.
The single mother of three, who lost her husband to cancer two years ago, said the curfew had been needlessly damaging.
“Since the implementation of the curfew I would describe the home environment for my children and I as absolutely suffocating,” she said in an affidavit filed with the court.
“Looking after the mental and emotional wellbeing of my children, coupled with the pressure of trying to keep my business afloat, has taken a significant toll on my health.”
Ms Loielo, a Liberal Party member who hopes to secure preselection in the seat of Nepean at the next state election, said she was being represented pro bono.
But she said anonymous donors had offered to cover any potential costs orders awarded against her in the event her claim was unsuccessful.
Opposition Leader Michael O’Brien said the case was in the public interest given how many Victorians were affected by the curfew. “The prospect that the Labor government acted unlawfully in imposing this curfew should send a chill down the spine of every Victorian,” he said.
A Victorian government spokesman said “as this matter is before the courts, it would be inappropriate to comment any further”.
MELBOURNE ON TRACK TO EASE RESTRICTIONS ON SEPT 28