New Covid laws throw Deni Varnhagen’s vaccine mandate challenge into chaos

The political deal that looks set to give SA new Covid-19 laws could make nurse and AFLW footballer Deni Varnhagen’s vaccine mandate challenge moot, the court has heard.

Imminent changes to the state’s Covid-19 laws may render AFLW footballer Deni Varnhagen’s vaccine mandate challenge “moot” and expose her to a hefty legal bill, a court has heard.

In the Supreme Court on Wednesday, counsel for Varnhagen and her co-litigants sought assurances they would not be penalised for continuing their case even as Parliament debated the new laws.

Simon Ower QC, for Varnhagen, said the mandates challenged by his clients would be subsumed and overtaken by new legislation, which raised issues of “utility” and “criticism”.

Under law, a party who proceeds with a claim that is no longer valid – or lacks “utility” – can be “criticised” – or ordered to pay the other sides legal costs – for persisting in the face of certain defeat.

“It would appear there is likely to be a major change in the dynamics of this litigation if the legislation renders our claim moot,” he said.

Nurse and AFLW player Deni Varnhagen enters the District Court where she is seeking to challenge the vaccine mandates that saw her stood down from her job and AFLW team. Picture: NCA NewsWire / Brenton Edwards

Deni Varnhagen at a training session in 2021. Picture Dean Martin

“It’s my concern that, while there is no certainty, it’s very likely that Parliament is about to pass the (new) Act in the next 48 hours.

“That might render my clients continuing this litigation unreasonable and expose them to a costs order … the question is whether they proceed at all.”

Varnhagen, fellow nurse Courtney Milligan, teacher Craig Bowyer, childcare worker Kylie Dudson and police officers Zacary Adam Cook and Rosalyn Smith 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”.

New Covid-19 laws, threatening jail for serious breaches, are expected to pass parliament because Premier Peter Malinauskas has secured the support of the Greens and SA Best.

On Wednesday, Solicitor-General Mike Wait SC said it would be inappropriate for anyone, including the court, to speculate about the outcome of Parliamentary debate.

He said he was not instructed to make any applications about the Varnhagen claim in light of the proposed new laws.

Benched AFLW player and registered nurse Deni Varnhagen, who is one of a group of public servants in a court challenge to Covid-19 vaccine mandates. Picture: Supplied.

“Because it’s our view the court ought not to speculate at this time, we would not therefore be in a position to criticise (Varnhagen) for proceeding on the basis the law has not changed at this time,” he said.

“We would not seek to rely on their continuance in the face of potential legislative change in any costs argument that may arise in the future.”

After an adjournment to speak with his clients, Mr Ower said there were “two possibilities” for the future of the case.

“First, it’s possible we will apply to amend the summons to challenge the effective endorsement (of the mandates) by the Governor and council (in the new laws),” he said.

Nurse and AFLW player Deni Varnhagen leaves the District Court with her partner Jarrad Duthie. Picture: NCA NewsWire / Brenton Edwards

“We would then seek to rely on the existing cross-examination and would seek to call further evidence.

“The other option is, if the Bill passes in a form which does not permit challenge (to the mandates), it’s likely we will seek to discontinue.”

He asked Justice Judy Hughes to adjourn the case until after parliament’s decision.

“Otherwise, Your Honour is going to hear closing submissions on the case as it stands and, in the next 48 hours, it’s going to be a different case,” he said.

Mr Wait opposed an adjournment saying that, if Varnhagen’s case was rendered moot, any new law represented “a new decision” and would have to be the subject of a brand-new, separate challenge.

Justice Hughes agreed, saying it was reasonable to expect Varnhagen to “nail her colours to the mast” when “four fifths” of the case had already been heard.

“It doesn’t strike me as immediately apparent why a quite different decision ought to be the subject of incorporation into these proceedings,” she said.

However, following a second adjournment, the court was asked to delay those submissions until 1.30pm.

“There have been some discussions about whether the matter can, in fact, be settled,” Mr Wait told the court.

“It’s hoped that we may be in a position where, if the matter is discontinued, we can seek instructions (from the government) as to costs.

“If not, I will then proceed with my view that the closing submissions go ahead.”

Following the third adjournment, Mr Ower told the court the case was set to continue despite the negotiations.

Justice Hughes heard closing submissions and adjourned the matter to await the outcome of parliament’s debate on the new laws.

Originally published as New Covid laws throw Deni Varnhagen’s vaccine mandate challenge into chaos