Widowed mum’s claims under fire in Victoria’s anti-curfew trial

A widowed mum’s claims Victoria’s curfew negatively impacted her life have been rubbished as irrelevant in a Supreme Court trial.

A lawsuit challenging the legality of the state’s curfew may not proceed because the curfew was revoked.

Liberal Party member and widowed mum-of-three Michelle Loielo brought the suit in the Supreme Court of Victoria, claiming the curfew breached her human rights.

The curfew was removed from Monday five hours before the trial challenging it began after a surprise weekend announcement from Premier Daniel Andrews.

But Ms Loielo is still asking the court to declare it was never legal.

Her lawyer Jason Harkess told the court on Wednesday the question should still be decided urgently because a third wave could bring back the heavy restriction at any moment.

Ms Loielo lived in fear and uncertainty that her rights could be taken away again, he said.

Unica Cucina e Caffe restaurant owner Michelle Loielo has taken the Victorian Government to court over the state’s curfew. Picture: Jake Nowakowski

“The state of emergency in Victoria remains in place,” he said.

“A third wave is a real possibility, and Ms Loielo’s rights could be taken away by another curfew.

“It may happen again. She fears that and continues to fear that.”

But defence lawyer Kristen Walker QC told the court there was “no practical purpose” in declaring the curfew illegal.

She said the matter was “academic and historic” and argued it was not the role of the Supreme Court to rule on a possible future curfew.

“This court’s decision is legally incapable of precluding the imposition of a curfew by a different decision-maker in a different factual context,” she told the court.

Justice Timothy Ginnane said he would consider the matter overnight before the trial continues on Thursday.

CLAIMS RUBBISHED BY DEFENCE LAWYER

Michelle Loielo not being able to go for an evening stroll is not a good enough basis for a legal challenge, a court has heard.

Ms Walker said Ms Loielo had not provided strong evidence the curfew caused her hardship in her affidavit filed with the court.

In the affidavit Ms Loielo said homeschooling her children while working 12-15 hours a day as a single mother had put her under significant strain.

She said she had not been able to see her mother or visit her family in Italy and said her business – a cafe on the Mornington Peninsula – had suffered a 99 per cent drop in turnover.

Michelle Loielo has taken deputy public health commander Michelle Giles to court over authorising Victoria’s curfew. Picture: Valeriu Campan

Victoria’s chief health officer Brett Sutton gave deputy public health commander Michelle Giles the authority to extend the state’s curfew. Picture: NCA NewsWire / Daniel Pockett

But Ms Walker told the court those hardships were caused by other restrictions.

“Of course homeschooling your children when you’re trying to run a business is hard, but that is not the fault of the curfew,” she said.

Ms Loielo also said in her affidavit she had moved her business to takeaway during lockdown.

She told the court she had not been able to buy ingredients for a tiramisu at 8.15pm on one occasion because Woolworths closed at 7.30pm.

But Ms Walker argued Woolworths could have chosen to remain open and Ms Loielo could have legally bought ingredients because that was leaving her house for work —- and it was not the Victorian Government’s order for Woolworths to close early.

“Businesses will make their own decisions about what time they might or might not open,” she said.

She told the court there was only one complaint directly caused by the curfew in Ms Loielo’s affidavit: “I used to take a stroll around the block in the evening after putting the children to bed.”

Victorian Premier Daniel Andrews announced at the weekend the curfew would no longer be imposed on Victorians from 5am on Monday. Picture: NCA NewsWire / Tim Carrafa

“That is the whole matter identified in this affidavit that suggested the curfew prevented the plaintiff from doing particular things,” she said.

The suit names deputy public health commander Michelle Giles, whose signature authorised the 9pm-5am curfew from September 14 – extending the one put in place from 8pm-5am from August 2.

On Tuesday more than 500 people at times tuned into a livestream of the Supreme Court trial, which is taking place via videolink because of COVID-19.

Justice Timothy Ginnane warned on Wednesday that people watching the livestream could be in contempt of court if they did not follow normal court rules.

“You are not allowed to record proceedings or take screenshots, let alone post those screenshots on social media,” he said.

The trial continues on Thursday.