Deni Varnhagen flags appeal as vaccine mandate challenge thrown out of Supreme Court
Deni Varnhagen’s vaccinate mandate challenge has been thrown out of court – but the benched AFLW player and nurse has vowed “it’s not over”.
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Nurse and AFLW footballer Deni Varnhagen’s long-running vaccine mandate challenge has been thrown out, but she says “it’s not over”.
Supreme Court Justice Judy Hughes ruled for court proceedings to be dismissed on Tuesday morning because the relief sought by the applicants is “hypothetical and lacks utility”.
As the repeatedly delayed trial reached its conclusion earlier this year, parliament passed new laws that overtook the emergency mandate, while adopting some of its language.
The state government’s application for a summary dismissal was granted because those new laws meant any challenge to the previous mandate was no longer valid.
“The impugned administrative acts that are challenged in the primary proceedings are nolonger operative in the challenged form,” Justice Hughes said.
Speaking outside court on behalf of Ms Varnhagen and the other applicants, Stuart Lindsay said there would be an appeal.
“We instituted these proceedings in December of last year, but we didn’t get down to the hearing of the application itself until April,” he said.
“That five-months delay was critical in giving the parliament the opportunity to deprive the court, to this point, to at least have the opportunity to determine our application.”
He said the application was yet to be determined on its merits.
“This was no decision about the strength or otherwise of our application, we say it was always a strong and meritorious and legally sound application,” he said.
The “validity” argument now appears to be headed for the Court of Appeal, which Mr Lindsay said should have happened in the first place.
“We asked the judge to send it to the Court of Appeal. You’ll remember that she declined to do that,” he said.
“We asked because of obvious reasons in relation to expense. This is publicly funded litigation. But also, because the legal issues involved in this are so novel.”
Varnhagen, fellow nurse Courtney Milligan, teacher Craig Bowyer, childcare worker Kylie Dudson and police officers Zacary Adam Cook and Rosalyn Smith could now pay a hefty price following Tuesday’s ruling.
The state government has asked for an order that the applicants pay their court costs fixed at $50,000.
However, Simon Ower KC, for Varnhagen, said both parties should bear the costs of the wider proceedings.
“There has been no determination on the merits of those proceedings,” he said. “There should be order as to costs which led to the wider proceedings.”
A ruling on costs is expected to be made next month.
Leaving court on Tuesday, Ms Varnhagen vowed to continue the legal battle.
“It’s not over yet, that’s for sure,” she said.
The heart of her legal challenge is that authorities failed to exclude all “obvious, alternative, compelling, reasonably practicable” alternatives that do not affect “common law rights or freedoms to bodily integrity”.
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