The lawyer representing a woman suing the Victorian Government over the state’s curfew says her client had been subject to “arbitrary detention”.
Vanessa Plain slammed the Government in the Supreme Court of Victoria on Wednesday, telling judge Timothy Ginnane millions of people had been “denied liberty” when they were ordered inside from 8pm to 5am each night.
Victoria’s curfew was put in place on August 2, and was relaxed to 9pm to 5am on Monday.
“Healthy citizens have been detained in their homes,” she said.
“(There are) millions of Victorians currently in detention … at the behest of the Premier.
“There is no comparable legal precedent in Australia or indeed in any other common law jurisdiction.”
Chief health officer Brett Sutton and Police Commissioner Shane Patton have each said they did not request of the Premier to institute a curfew.
Ms Plain said those statements “credibly suggest there is serious doubt as to whether there is a legitimate basis for the curfew directive”.
Ms Plain is representing Michelle Loielo, a Mornington Peninsula cafe owner seeking to have the curfew ruled unlawful or quashed.
Ms Loielo is also a Liberal Party member who reportedly plans to run for candidate preselection at the next state election against Mr Andrews’ Labor government.
She brought the suit against deputy public health commander Michelle Giles, claiming the curfew breached the Victorian Charter of Human Rights and Responsibilities.
Ms Giles’ lawyer Kirsten Walker, QC, told the court on Wednesday they had only received key documents at 11.45am that day.
“(We have had) no time to prepare submissions,” she said.
Ms Plain’s key request is for the matter to be uplifted and decided by the Victorian Court of Appeal.
“The nature of the case is so grave, and has such unique ramifications for the community at large, that it calls for immediate referral,” she said.
Justice Ginnane reserved his decision to next week.
In his press conference on Wednesday, Premier Daniel Andrews said he couldn’t comment on matters before the court.
“The only answer I can give you is given that this is foreshadowed legal action I’m in no position to comment on it,” he said.
“I’m focused, not on those sorts of fights, I’m focused on getting these numbers down, and then being able to open and stay open.
“I simply can’t be drawn on those sorts of matters.”
The Andrews Government is facing a fresh legal challenge over the COVID-19 lockdown following a Mornington Peninsula cafe owner suing the state over the curfew.
A separate class action has now been brought by Carbone Lawyers, who says the Government is “liable for negligence” because of the failed hotel quarantine program that caused Victoria’s second wave.
The class action is made up of people “who have suffered psychological or psychiatric injury” during stage 3 and 4 restrictions from July onwards, according to a writ filed with the Supreme Court of Victoria.
The lead plaintiff is Jordan Roberts, 21, who was a roadside crash barrier installer until he was made redundant because of the pandemic.
He suffered a “psychological reaction marked by depression and anxiety” and “nervous shock” because of the restrictions with subsequent medical expenses, lawyer Tony Carbone said.
“He’s only 21 years of age and he’s got more problems than the early settlers,” he said.
“I don’t know how they (Jordan and his partner) are going to make rent, it’s just ridiculous.”
Mr Carbone said he didn’t want to be cocky, but he liked his chances of the class action being successful.
“Let me put it to you this way – on the balance of probabilities, we have to show that the Government botched up the hotel quarantine. I don’t want to be cocky about this, but there’s no doubt in my mind they’ve botched it.
“Have a look at NSW and Queensland. They used Australian Defence Force and police (in their hotel quarantine programs) – and OK, they’ve got restrictions in place, but things are as close to normal as they can be.
“No government is beyond being sued when they’ve been totally incompetent and negligent.”
The class action covers regional Victoria, metro Melbourne, and the “hot-spot” suburbs that preceded the rest of the state in going into lockdown in July.
The state of Victoria, Health Minister Jenny Mikakos, Jobs Minister Martin Pakula, Department of Health and Human Services secretary Kym Peake, and Department of Jobs, Precincts and Regions secretary Simon Phemister are being sued by Mr Peters and the rest of the litigants.
The writ says they ignored concerns about the hotel quarantine program that caused the second wave and led to the restrictions that forced Victorians out of work.
“At all material times, (they) knew, or alternatively ought to have known, that if the hotel quarantine program was not implemented effectively, it was likely that COVID-19 restrictions would continue to be imposed,” it says.
Yet they ignored warnings from the Australian Medical Association and senior bureaucrats, the writ claims.
Claimed breaches of duty of care included private security guards’ lack of infection control training, lack of PPE, and lack of competent supervision for the program.
The Victorian Opposition has welcomed the Supreme Court challenge to Melbourne’s strict lockdown curfew, claiming it could have been imposed unlawfully.
Mornington Peninsula single mother-of-three Michelle Loielo has launched a legal challenge against Premier Daniel Andrews’ 9pm-to-5am curfew.
The cafe owner and Liberal Party member has filed documents in the Supreme Court asking to either quash the stay-at-home direction that includes the curfew or rule it unlawful.
Opposition Leader Michael O’Brien said the curfew was wrong and welcomed the legal bid to have it overturned.
“(It) has no public health basis and is a massive imposition on the basic rights of Victorians,” Mr O’Brien said.
“The prospect that the Labor Government acted unlawfully in imposing this curfew should send a chill down the spine of every Victorian.
“It is in the public interest for the lawfulness of Labor’s curfew to be tested given how many Victorians are affected by it.”
He said more than five million Melburnians had been locked in their homes at night under the Government’s curfew, despite the chief health officer and Victoria Police chief commissioner never requesting it.
Shadow attorney-general Edward O’Donohue said it was a vital public interest legal action that would “examine the power that Daniel Andrews has purported to exercise to impose the curfew”.
The curfew was introduced in early August to help battle Victoria’s deadly second wave of coronavirus and the Premier has attributed it to drastically reducing movement across the city.
“We’ve got a clear strategy, numbers are falling, the strategy is working,” Mr Andrews said last week.
Ms Loielo, who said the curfew had cost her 99 per cent of her business, has claimed it violated her rights to freedom, liberty and security.
“If this curfew continues for much longer, I have grave fears for both my business and my ability to provide for my three children,” she said.
Lawyer Tony Carbone, who is fronting the separate class action against the Government over job losses due to the restrictions imposed on Victorians, told the Today show he believed they had a very strong case.
“If it hadn’t have been for their bungled hotel quarantine program we wouldn’t have been in a situation we are in now,” he said.
“Assuming that program went well and we still ended up with those numbers in those circumstances they couldn’t be sued – they are no different to any other corporation or person out there.”
He said the job losses could be traced to the stage 3 lockdown in July and stage 4 in August, which he claimed were due to the State Government bungling the hotel quarantine program.