Kassam v Hazzard; Henry v Hazzard (No 2)

1. [1]

   On 15 October 2021, I published judgment in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (the “Principal Judgment”). I dismissed both sets of proceedings. I made orders for the parties to confer in relation to costs and, failing agreement, to exchange proposed orders and submissions.

2. [2]

   Agreement on the appropriate orders as to costs could not be reached. In both proceedings, the “State Defendants” (in the Kassam proceedings being Minister Hazzard, Dr Kerry Chant and the State of NSW and in the Henry proceedings being Minister Hazzard) contended that the appropriate order is that the plaintiffs pay their costs of the proceedings. The Commonwealth of Australia seeks a similar order in the Kassam proceedings. Each set of plaintiffs contend that the appropriate order is that each party pay their own costs.

Costs Orders and “Public Interest” Litigation

1. [3]

   The starting point for determining the appropriate order as to costs is Uniform Civil Procedure Rule (“UCPR”) 42.1 which provides that “if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.” In this case the “event” is the outcome of the litigation which was wholly resolved in favour of the defendants.

2. [4]

   Each of the Kassam plaintiffs and the Henry plaintiffs submitted that the Court should “otherwise order”, specifically that the Court should order that each party pay their own costs on the basis that the proceedings should be characterised as public interest litigation.

3. [5]

   The Kassam plaintiffs contended that these proceedings should be characterised as being brought in the public interest in that they affected a large section of the community, raised several issues of public importance and, to the extent that each of them had a personal interest in suing, that was only reflective of the interests of the class of persons who were affected by the relevant provisions of the impugned orders, namely persons who are not vaccinated. [1]

4. [6]

   The Henry plaintiffs contended that: the case was novel and raised human rights issues arising from the pandemic that had not been previously considered by a superior court; the impugned orders (adversely) affected the daily lives of a substantial number of persons; there was a strong public interest in the proceedings as supposedly evident from the number of persons who watched a live streamed broadcast; that they conducted the proceedings with expedition and the public has obtained a benefit from the Principal Judgment clarifying the scope of s 7 of the Public Health Act 2010 (NSW). [2]

5. [7]

   The State defendants submitted that there was no basis for the Court otherwise ordering under UCPR 42.1. They contended that each set of plaintiffs suffered a comprehensive defeat, that the solicitors for the Henry plaintiffs raised substantial amounts for the litigation, that reasonable offers were made to both plaintiffs to resolve the proceedings without any costs order being made, that the proceedings were not in any relevant sense public interest litigation but litigation conducted to vindicate the plaintiffs’ private rights, that the reliance on the number of people who viewed the proceedings online confuses the public interest with interest from the public and just because proceedings involve a challenge to delegated legislation or an exercise of executive power does not make them public interest litigation. [3]

6. [8]

   Counsel for the Commonwealth, Ms Davidson, contended that merely because proceedings could be characterised as being in the public interest is not sufficient in itself to justify the Court otherwise ordering and “something more” must be demonstrated (citing Local Democracy Matters Incorporated v Infrastructure (NSW) (No 2) [2019] NSWCA 118 at [8]; “Local Democracy Matters”). Ms Davidson submitted that given the weakness of the Kassam plaintiffs’ case against the Commonwealth, that had not been demonstrated.

7. [9]

   Ms Davidson’s characterisation of the approach to a contention that a costs order should not be made in litigation that can be characterised as being brought in the public interest without “something more” must be accepted. However, it does not mean that the additional circumstance or factor “must be unrelated to the nature, extent or other features of the public interest involved in the litigation” the relevant “circumstance or factor can relate to the public interest in the litigation” (Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59 at [56]; “Caroona” cited in Local Democracy Matters at [8]). Hence in Local Democracy Matters at [8], the Court referred to litigation upholding the liberty of the subject in time of war or litigation to stop or limit the development of one of the last habitats of an endangered species as examples of cases that might in themselves warrant the Court ordering that each party pay their own costs (see for example Liversidge v Anderson (1942) AC 206 at 283).

8. [10]

   In Caroona at [60], Preston CJ in LEC comprehensively reviewed the authorities and identified five non-exhaustive categories of such litigation that might meet the requirement of raising “something more” namely: litigation that raises one or more novel issues of general importance; litigation that has contributed, in a material way, to the proper understanding, development or administration of the law; litigation brought to protect the environment or some component of significant value; litigation that affects a significant section of the public and where there was no prospect of financial gain for party who brought the proceedings.

9. [11]

   In a limited sense, at high level of generality and subject to the matters noted below, I accept that the challenges to the vaccine mandates in the public health orders can be characterised as being in the public interest and of such a nature in themselves as may warrant otherwise ordering under UCPR 42.1. The making of either a form of delegated legislation or executive act which had the effect of imposing significant differential limitations on the free movement of people of a sizable class, albeit a class defined by their own choices and not an innate characteristic, is a significant step. The type of action taken by the impugned orders is not something that has generally been undertaken since the time of war. Subject to the considerations that are addressed next, there is a strong public interest in affected persons being able to test the legal validity of such a step without facing financial ruin or at least severe hardship if the challenge fails. To so hold serves the rule of law. Further, just because the individual plaintiffs had a personal interest in the outcome of the challenge does not warrant a different conclusion. It was arguably necessary for them to possess that personal interest to have standing to bring the proceedings and they shared that interest with a large number of other affected persons (see Loielo v Giles (No 2) [2020] VSC 864 at [34]). That said, the number of viewers of the proceedings online or in person is irrelevant.

10. [12]

    However, any final determination of whether the proceedings were such as to warrant the Court otherwise ordering in whole or in part requires a closer consideration of the nature of the claims that were litigated. To the extent that both sets of plaintiffs directed their argument to the scope of the s 7 of the Public Health Act 2010 and whether they supported the making of the impugned orders, especially the vaccine mandates, then I accept the proceedings raised issues of general importance, were arguable, albeit not strong, and their resolution might be seen as contributing to some form of settled understanding of the scope of s 7. However, against that, aspects of both sets of claims were unmeritorious or misconceived.

11. [13]

    This is particularly so for the Kassam plaintiffs’ claims against the Commonwealth of Australia. The Commonwealth was made a party to the Kassam proceedings because the Kassam plaintiffs contended that the impugned public order in that case effected a form of civil conscription supposedly contrary to s 51(xxiiiA) of the Constitution and was in part inconsistent with the Australian Immunisation Register Act 2015 (Cth). I found that the whole of the Kassam plaintiffs’ contention in relation to s 51(xxiiiA) to be “completely untenable”. [4] The same description is apposite to the argument about s 109 of the Constitution. With s 51(xxiiiA), even the most cursory reading of the relevant High Court authorities would reveal that this aspect of the Kassam plaintiffs’ case was hopeless. There was no uncertainty in the law so far as the application of s 51(xxiiiA) to this case was concerned.

12. [14]

    The claim against the Commonwealth was especially weak. It did not propagate any of the impugned public orders and, save for supporting mandatory vaccination of aged care workers, the evidence did not come close to suggesting that the Commonwealth had any role in the pursuit of vaccine mandates via public health order. The Commonwealth’s involvement in the proceedings was appropriately limited and targeted. Despite its large resources, there is no justification for denying the Commonwealth its costs of defending hopeless constitutional claims. The same applies to the State defendants’ defence of this aspect of the Kassam proceedings and so much of the Henry plaintiffs’ contentions that alleged that the impugned orders amount to civil conscription notwithstanding that they did not challenge their constitutional validity. [5]

13. [15]

    Other aspects of both proceedings were similarly flawed. A significant amount of evidence was adduced in an effort to demonstrate the alleged virtues of various experimental treatments for COVID-19 and the ineffectiveness of the vaccines especially given their potential for side effects. [6] This evidence was largely irrelevant to a Court conducting judicial review. With the possible exception of the evidence of Professor Bhattacharya [7] the evidence adduced was worthy of little weight in its own right. The adducing of fringe expert opinions about cures and COVID-19 vaccines was a generally futile exercise.

14. [16]

    To this point, a consideration of these matters warrants some but not a complete amelioration of the usual order contemplated by UCPR 42.1. However, two further considerations remain to be addressed, namely the relevance, if any, of the offers made by the State defendants to resolve the proceedings and the alleged financial hardship that might be suffered by the two sets of plaintiffs if a costs order is made against them.

The Offers made by the State

1. [17]

   On Monday 4 October 2021, being a public holiday and which was just prior to the resumption of the hearing on 5 October 2021, the State defendants’ solicitor wrote to the plaintiffs in both sets of proceedings advising them of the repeal of Public Health (Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (“Order (No 2)”) and its replacement by Public Health (COVD-19 General) Order 2021. Order (No 2) was the only public health order challenged in the Kassam proceedings and was one of three orders challenged in the Henry proceedings. The email was headed “Without Prejudice Save as to Costs”. The State defendants offered to consent to a discontinuance of the proceedings and not seek their costs.

2. [18]

   The Henry plaintiffs rejected the offer the same day. The Kassam plaintiffs also responded the same day proposing a counter offer whereby certain provisions of Order (No 2) would not be enforced pending the commencement of Public Health (COVD-19 General) Order 2021, their statement of claim would be dismissed and the State defendants would pay their costs in the sum of $500,000.00. This offer was not accepted.

3. [19]

   Given the strength of the respective cases and the repeal of Order (No 2), I accept that the State’s offer was a reasonable one. However, its rejection by both sets of plaintiffs does not add to my assessment of whether the Court should otherwise order given that, if it had been accepted by the plaintiffs, the points sought to be raised in their litigation would have been left unresolved. While the repeal of Order (No 2) raised a potential issue about the utility of the Kassam proceedings no point was taken by the State defendants about that matter at first instance. [8]

The Plaintiffs’ Means

1. [20]

   As noted, the State parties contended that one matter tending against the Court otherwise ordering is that the Henry plaintiffs had raised funds for the litigation. Some of the authorities that have considered whether to otherwise order in relation to so‑called public interest litigation have treated the capacity of the relevant plaintiff to meet a costs order or pay their own costs or at least whether they did so as a factor to be considered. Hence, in Jurecek v Director, Transport Safety Victoria (No 2) [2016] VSC 695 at [16] (“Jurecek”), Bell J observed that “[m]aking the usual order for costs may represent an unreasonable impediment to individuals of modest means wanting to commence future appeals that have substantial merit and are in the public interest”. Jurecek was an unsuccessful appeal from the Victorian Civil and Administrative Tribunal concerning the rejection of a complaint of a breach of “Privacy Principles” set out in the Information Privacy Act 2000 (Vic). The usual outcome in the tribunal appealed from was that each party bears their own costs (at [15]). In making no order as to costs in Ruddock v Vadarlis (2001) 115 FCR 229; [2001] FCA 1865 at [28], Black CJ, Beaumont and French JJ had regard to the fact that the (unsuccessful) respondent to the appeal had been represented free of charge.

2. [21]

   This brings to the fore the rationale underlying the Court sometimes making no order as to costs in unsuccessful proceedings that can be characterised as brought in the public interest. The cases do not suggest any single rationale which is not surprising given the different statutory contexts in which the various decisions have arisen and the fact that different unsuccessful cases may warrant the Court otherwise ordering for different reasons. However two related rationales, amongst others, that are discussed in the cases have already been adverted to namely the promotion of the rule of law in not inhibiting litigants with reasonable cases concerning important rights, interests or issues from approaching the Courts (Caroona at [27] to [36]) and avoiding the relative unfairness of a single litigant or group of litigants bearing the expense or burden of a case that is brought for the wider benefit of the public as a whole or at least a class or section of the public (Oshlack v Richmond City Council (1998) 193 CLR 72; [1998] HCA 11 at [136] per Kirby J).

3. [22]

   The latter if not both of these rationales are reflected in the submissions of both sets of plaintiffs in this case. Hence, the Kassam plaintiffs’ submissions on costs submitted that each of the plaintiffs were “workers” and “they are plainly not persons of large means”. [9] The Henry plaintiffs concluded their submissions as follows: [10]

4. [23]

   These submissions and the authorities noted above mean that in considering whether to otherwise order in this case the Court can and should consider the effect of the burden that an adverse costs order would impose on the two sets of plaintiffs.

5. [24]

   As noted above, when the Court dismissed the proceedings on 15 October 2021, it made provision for the exchange of submissions on the appropriate order as to costs. The State defendants filed and served an affidavit of John McDonnell sworn 29 October 2021 which annexed material showing that the solicitor for the Henry plaintiffs raised funds from the public for their case via the website “GoFundMe” (a form of fundraising that will be described as “crowdfunding”). Both sets of plaintiffs objected to the Court considering that affidavit on the basis that, inter alia, the service of affidavits was not contemplated by the orders made on 15 October 2021.

6. [25]

   To avoid disputes about evidence being resolved on the papers and to consider the relevance of any crowdfunding that may have taken place to the debate over costs, I listed the costs application for further hearing on 2 December 2021. I also gave each of the Kassam plaintiffs and the Henry plaintiffs leave to file on or before 5.00pm on 19 November 2021 “any affidavit they wish to addressing the plaintiffs’ means, any funds that were raised to meet their legal costs or defray their costs exposure, and the basis on which any funds were raised.”

7. [26]

   In response to this opportunity, the solicitor for the Kassam plaintiffs filed two affidavits. However, he did not address the topics raised by the Court. He stated that he did not reply to Mr McDonnell’s affidavit on the basis that the material annexed to his affidavit concerning crowdfunding only concerned fundraising by the solicitor for the Henry plaintiffs. That is true but it overlooks that his clients’ submissions concerning why they should not pay costs asserts “[t]hey are plainly not persons of large means”. It also overlooks that his clients’ counter‑offer to the State defendants requested the payment of $500,000.00 in costs; a large sum incurred in a short term and a sum that on the Kassam plaintiffs’ submissions they seem unlikely to be able to pay themselves.

8. [27]

   During oral submissions on 3 December 2021, Counsel for the Kassam plaintiffs referred to the description of their personal circumstances in the Principal Judgment (at [95] to [98]) as suggestive of their not having the means to satisfy any costs. I accept that the evidence suggests, with the possible exception of Mr Nohra who appears to be running a successful construction business, that those persons are likely to incur significant hardship from having to meet a substantial costs order made against them from their own resources, if that is what will occur if such an order is made. However, given the terms of their submission, that they seek the Court otherwise order under UCPR 42.1 and that the Kassam plaintiffs were specifically given the opportunity to provide evidence demonstrating their lack of capacity to meet such an order and chose not to, then I am not satisfied that they do not have the means to make any substantial contribution to the State defendant’s costs. Instead, that matter is left neutral. Consistent with the observations above (at [12] to [16]), they will be ordered to pay the Commonwealth’s costs and 60% of the State defendant’s costs to reflect those aspects of their case that were so lacking in merit that they do not warrant the court otherwise ordering.

9. [28]

   Like the Kassam plaintiffs, the Henry plaintiffs did not take up the Court’s invitation to file an affidavit concerning the plaintiffs’ means, any funds that were raised to meet their legal costs or defray their costs exposure, and the basis on which any funds were raised. On those topics, the only evidence is the material attached to Mr McDonnell’s affidavit of 29 October 2021 and a further affidavit sworn by him dated 1 December 2021. That material reveals as follows.

10. [29]

    At some point in 2020 there was created a go fund me page entitled “No jab, no job, no COVID-19 vaccination, NO WAY”. The website stated that “Nathan Buckley is organising this fundraiser”. Mr Buckley of G & B Lawyers is the former solicitor for the plaintiff. He had the carriage of the matter throughout the hearing and was the solicitor on the record until 30 November 2021 when another solicitor from his firm filed a notice of appearance.

11. [30]

    On 20 May 2020, Mr Buckley issued the following post on the GoFundMe page for “No jab, no job, no COVID-19 vaccination, NO WAY”:

12. [31]

    A further update was issued on 7 July 2020 which referred to obtaining advice from a barrister to a challenge to the validity of a public health order. Even if it related to an order under the Public Health Act 2010, it could not have been one of the orders the subject of challenge in the Principal Judgment as they were not made until 2021.

13. [32]

    On 25 August 2021, an update was posted to the GoFundMe page as follows:

14. [33]

    This call for plaintiffs clearly related to the public health orders the subject of challenge in the Henry proceedings.

15. [34]

    On 27 August 2021, Mr Buckley posted that “We have a plaintiff. Now let’s get some more.” Accompanying that post is what appears to be a picture of the signature page of a document which in context would appear to be some form of retainer agreement. On 31 August 2021, Mr Buckley posted that the initiating process was being drafted and that “I could still add a childcare worker, a disability worker and a construction worker into the mix” and that “Now is the last opportunity to come forward to be a Plaintiff.”

16. [35]

    From that time, Mr Buckley posted various updates about the course of the proceedings at first instance and on appeal. The updates also made reference to the possible commencement of other proceedings specifically an appeal to the Full Bench of the Fair Work Commission and then to the Federal Court and a “national class action” to be filed in the Federal Court “pushing back against mandatory vaccinations, lockdowns, restrictions on businesses, discrimination and the removal of your rights and freedoms”.

17. [36]

    On 7 October 2021, being the day after I reserved judgment, Mr Buckley provided an update stating that to that time costs and disbursements incurred in these proceedings had reached “just under a total of $420,000” and that “in order to fund a similar challenge to the Victorian mandatory COVID-19 jab directions the costs and disbursements will likely be similar.”

18. [37]

    As at 1 December 2021, the GoFundMe page had raised $580,012.00. An appeal from the Principal Judgment was heard on 29 and 30 November 2021 and dismissed on 8 December 2021 (Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299).

19. [38]

    In considering what findings should be made and inferences drawn from this material, two matters should be noted. First, this is all being considered in the context of the submission by the Henry plaintiffs that the Court should otherwise order because “it would be unfair and unjust for the Plaintiffs personally bear the burden of the costs associated with this litigation”. Second, notwithstanding that the legal, evidential and practical onus were all on the plaintiffs to demonstrate unfairness, the Henry plaintiffs and their solicitors chose not to respond to the opportunity that was offered to them to provide evidence as to their means and the crowdfunding that was undertaken. During oral argument on 3 December 2021, counsel for the Henry plaintiffs, Dr Harkess, invited the Court to draw various inferences about his clients’ position. Given that they bear the onus, and no evidence was adduced, I decline to do so (Shalhoub v Buchanan [2004] NSWSC 99 at [71] per Campbell J).

20. [39]

    As best I can ascertain, the material tendered by the State about crowdfunding in the Henry proceedings suggests that the one GoFundMe page was used to raise funds for a range of actual and potential legal challenges to COVID-19 measures. Beyond that, a number of matters are left unclear about the purpose of the fundraising and terms on which funds were raised which are, or at least could be, relevant to an assessment of the Henry plaintiffs’ submission that “it would be unfair and unjust for the plaintiffs personally bear the burden from the Court’s adjudication” in the Principal Judgment. One matter that is unclear, is whether the funds were raised to meet any adverse costs order. The posting on 7 May 2020 suggests that funds were raised for that purpose. However, the posting seeking plaintiffs on 25 August 2020 warns of a risk of an adverse costs order. It does not state whether the funds raised would be available to meet such an order if it was made. A related question is whether the funds were simply a donation which was never to be returned to the donors under any circumstances or held under some form of Quistclose trust (Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567). If it was the former and the funds were to be applied to meet the plaintiffs’ costs and disbursements, then had they been successful then it is doubtful that costs could have been recovered against the defendants (see Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145). A further issue that arises is, in the event that the funds were not raised to meet or defray the Henry plaintiffs’ costs exposure, how is that outcome consistent with the Henry plaintiffs’ solicitor’s fiduciary duty to their clients?

21. [40]

    In the absence of evidence from those who know the answer to these questions, the Court must approach the matter on the basis that either the funds raised are available to meet or defray the Henry plaintiffs’ costs exposure or they are not. If they are available to meet or defray the Henry plaintiffs’ costs exposure then their submission about how unfair and unjust it would be for them to bear the burden of any costs order falls away or is at least diminished. If they are not available then that situation could, or at least should, only have come about after they received proper (and independent) advice about the financial risk of becoming a plaintiff and how their solicitors were preferring their own interests to their clients in apparently applying the funds to meet their own costs and disbursements and leaving them exposed to a costs order (see Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 435; Council of the Queensland Law Society Inc v Roche [2004] 2 Qd R 574; [2003] QCA 469 at [57] per McMurdo P and at [62] per Williams J). If the Henry plaintiffs received that advice and decided to be plaintiffs regardless, then it is difficult to see how it is unfair and unjust for them to wear at least some form of costs order. If they did not receive that advice then the plaintiffs’ solicitors (and potentially their insurer) may have to ultimately carry their cost exposure. In any event, when no evidence is provided on these topics, I would not assume the Henry plaintiffs’ solicitors breached their obligations to their clients. The end result is the same, namely that the contention that unfairness and unjustness will be occasioned to the Henry plaintiffs if they incur at least some form of costs order has not been made out.

22. [41]

    Two further matters should be noted. First, this judgment does not address all the circumstances in which litigation may be crowdfunded. The right, duties and consequences that might flow from such funding for litigation will differ depending on, inter alia, who undertakes the fundraising (ie, the solicitor, the client or someone else), whether it is undertaken for a plaintiff, defendant or another party and the terms on which the funds are raised. In this case, the use of crowdfunding only become relevant once the Henry plaintiffs contended that they should not have to bear a costs order because of the public interest nature of the litigation and that it was “unfair and unjust” for them “personally to bear the burden of the costs associated with this litigation”.

23. [42]

    Second, in similar circumstances it is to be expected that if a submission to the effect that it is “unfair and unjust” for a party to personally bear the burden of a costs order is made to the Court and crowdfunding has been undertaken, then that party will provide evidence to the Court explaining the extent and terms of the fundraising, especially when they are given the express opportunity to do so. Had that been undertaken in this case and had the explanation revealed that, for example, a reasonable portion of the funds set raised was set aside to meet or defray the Henry plaintiffs’ costs exposure then the Court could have considered whether to make an order limiting the costs recoverable from the plaintiffs to that amount or something similar (UCPR, 42.4(1)). However, in view of the way in which the costs application was conducted such an approach could not be considered.

24. [43]

    In the end result, the position of the Henry plaintiffs is no different to that of the Kassam plaintiffs save that the Commonwealth of Australia was not a party to the Henry proceedings. Given the observations noted above, the Henry plaintiffs will also be ordered to pay 60% of the defendant’s costs of the proceedings.

Orders

1. [44]

   Accordingly, in proceedings No 2021/00249601 brought by the Kassam plaintiffs the Court orders that:

2. [45]

   In proceedings No 2021/00252587 brought by the Henry plaintiffs, the Court orders that: