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Falconer vs. Commissioner Of Police - (24 Dec 2021)

The Court may grant the injunction if it is necessary to maintain the parties' existing position until the determination of the rights at trial


The Applicant, Ben William Falconer, has brought an application for judicial review in which he challenges the validity of an Employer Direction issued by the Commissioner of Police, which required all WA Police to be partially vaccinated against COVID-19 by 1 December 2021 and fully vaccinated by 31 December 2021.

By chamber summons, the Applicant applies for an order restraining the Police Commissioner and the State of Western Australia, until further order of the Court, 'from dismissing any employee of the Western Australian Police Force in reliance on the Employer Direction'. The Applicant commenced proceedings for judicial review challenging the validity of directions issued by the Chief Health Officer.

The Applicant contends that, the Employer Direction is not authorised because it has the effect of making a direction which may only be made under Section 157(1)(j) and given effect in accordance with Section 158 of the Public Health Act, 2016.

The court has power under Section 25(9) of the Supreme Court Act, 1935 (WA) to grant an interlocutory injunction in all cases in which it appears to be just or convenient that the order be made. The remedy is discretionary, but the discretion is not at large. It is necessary to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought. The Court may grant the injunction, if it is necessary to maintain the parties' existing position until the determination of those rights at trial. In the present matter, the applicant seeks public law remedies. The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases.

Section 157(1)(j) of Act empowers an authorised officer to 'direct any person to undergo medical observation, medical examination or medical treatment or to be vaccinated, as specified by the officer'. Such a direction can be enforced under Section 158, including by apprehending and restraining the relevant person and vaccinating that person. In the absence of such a provision authorising enforcement, the vaccination would be unlawful if done without consent.

If not restrained, the disciplinary process based on breach of the Employer Direction could result in the dismissal or discharge of the applicant from the Police Force. There is no doubt that he suffers prejudice.

The potential risk to public health is managed by the continued operation of the direction issued by the Chief Health Officer; that is, the applicant may not lawfully enter or remain upon police premises. There is, undoubtedly, prejudice to the Commissioner in the applicant being unable to carry out his duties as a member of the Police Force due to the operation of the direction of the Chief Health Officer.

The balance of justice requires restraint. That restraint must, in the circumstances, be for a limited time. The questions raised by this action must be heard and determined quickly. An interlocutory injunction is granted restraining the Commissioner, until further order, from dismissing the applicant in reliance on the applicant's failure to comply with the Employer Direction.


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