A hospital security guard who was dismissed for refusing mandatory vaccination against COVID-19 has won a costs battle on the basis his review application was in the public interest.
In February 2022, Steven Geoffrey Drage was dismissed by Gold Coast Hospital after his multiple applications for a vaccination exemption on religious grounds were rejected.
Mr Drage applied to the Supreme Court for a judicial review of the decision made by the Gold Coast Hospital and Health Service and State of Queensland (Queensland Health).
In the Brisbane Supreme Court last month, Justice Freeburn dismissed that application but on Tuesday ruled each party to the review should bear their own costs under Section 49(1)(e) of the Judicial Review Act 1991 (Qld).
The respondents argued they should receive their costs of the review pursuant to the general rule that costs follow the event.
Mr Drage argued special or exceptional circumstances existed that warranted a departure from the general rule, in that the proceedings involved an issue of public interest.
Justice Freeburn said the discretion afforded under s 49 should be exercised “so as to ensure that the risk of adverse costs orders does not deter meritorious applications under the Act”.
He said the mandatory interference in the rights of citizens by the vaccination directive was based on an assessment made for the common good, but exceptions to the policy recognised the need to accommodate each employee’s human rights.
“However, Mr Drage had his own personal reasons for refusing to be vaccinated,” he said.
“That does not mean that the judicial review did not have a relevant or broader public interest.
“It merely means that Mr Drage can be regarded as pursuing his own personal objections to vaccination, in circumstances where other citizens may also have had their own personal interest or reasons in resisting similar steps of government.”
Justice Freeburn said an important consideration in the substantive decision was whether the hospital service and the government had properly weighed the interference with employees’ rights – including the right to practise religion – against the risk to patients and others if staff were not vaccinated.
“Here, the view the court took was that it was reasonable and justifiable for the hospital and Queensland Health to take the precaution of having hospital staff vaccinated,” he said.
“That step was appropriate to reduce the risks to patients, staff and the community.”
Justice Freeburn said the rationale for s 49 was important.
“Citizens ought not be discouraged from bringing their disputes with government to court by the threat of an adverse costs order,” he said.
“Obviously, there are limits to the application of that rationale. Here Mr Drage’s challenge to the actions of the respondents did not succeed. In his challenge he relied on some rather bizarre material.
“But, in the context of a pandemic, where there was a mandatory requirement that employees be vaccinated, there was a broad public interest in Mr Drage litigating what was an arguable case.
“Certainly, his case was not dismissed in a peremptory way.”
The respondents pointed out that Mr Drage applied for a review after he began proceedings in the Industrial Relations Court, which were well advanced.
“That said, the Industrial Relations Court is essentially a ‘no costs’ jurisdiction,” Justice Freeburn said.
“In any event, much of the work done in that court was used in this court.”
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