Federal Court of Australia

Colton v Dhelkaya Health [2025] FCA 942

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    By 4pm on 25 August 2025, the Respondent file any affidavit material and any written submissions (not exceeding 5 pages) on the question of costs.

3.    By 4pm on 3 September 2025, the Appellant file any affidavit material and any written submissions (not exceeding 5 pages) on the question of costs.

4.    By 4pm on 8 September 2025, the parties are to contact the Associate to Justice Anderson to confirm if either party wishes to be heard orally on the question of costs, failing which costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    By 4pm on 25 August 2025, the Respondent file any affidavit material and any written submissions (not exceeding 5 pages) on the question of costs.

3.    By 4pm on 3 September 2025, the Appellant file any affidavit material and any written submissions (not exceeding 5 pages) on the question of costs.

4.    By 4pm on 8 September 2025, the parties are to contact the Associate to Justice Anderson to confirm if either party wishes to be heard orally on the question of costs, failing which costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

1.    INTRODUCTION

1    These appeals concern two individuals, Mr Leonard Colton and Ms Bernadette Mayne (Appellants). The Appellants were employed by Dhelkaya Health (Respondent) to work in nursing roles at Castlemaine Health. Their employment with the Respondent was terminated on the basis that they were unable to enter or remain on site for the purposes of working, pursuant to the COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 6), which meant that the Appellants could not fulfil the inherent requirements of their role.

2    On 15 July 2022, Mr Colton commenced proceedings under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) in the Federal Circuit and Family Court of Australia (FCFCOA) against the Respondent by way of Originating Application and Form F2. On 11 August 2022, Ms Mayne commenced similar proceedings in the FCFCOA against the Respondent by way of Originating Application and Form F2. Both Appellants contended, before the FCFCOA, that their dismissals were in contravention of the general protection provisions of Pt 3-1, and that they suffered other adverse action and unlawful coercion. On 28 November 2022, the Appellants consented to the matters being heard together (Proceedings).

3    On 23 September 2024, after a hearing on 2 and 3 May 2024, the primary judge dismissed the Proceedings and ordered costs be reserved. The primary judge published separate reasons in respect of each of the Proceedings (referred to collectively in these reasons as the Primary Judgments or PJs, and separately as the Colton PJ and Mayne PJ respectively). The primary judge noted that as the cases were factually distinct, the reasons in each stood alone, but bore similarities to the extent of common issues of law and procedure.

4    By way of Notices of Appeal and Supplementary Notices of Appeal, the Appellants appeal the Primary Judgments. While separate appeals have been filed in relation to each of the Primary Judgments (to which I will refer to as the Colton Appeal and Mayne Appeal respectively, and collectively, as the Appeals), the grounds of appeal filed in each are broadly similar in effect and are addressed together in these reasons.

5    The supplementary notices of appeal contain many generalised allegations of error with little attempt to identify the legal basis for the grounds of appeal relied upon. Notwithstanding, taking the appeals at their highest, the appeals allege that the primary judge erred in the following respects:

(a)    wrongfully making the interlocutory orders dated 5 February 2024 and limiting the Appellants’ cases to each of the Form F2s filed in each of the Proceedings with certain amendments (5 February Orders): Grounds 1-3 of the Appeals;

(b)    wrongfully determining that, in circumstances where the Respondent accepted the Appellants’ beliefs about the (un)safety, (in)efficacy and (in)effectiveness of the COVID-19 vaccines (the Vaccine Issue), the truth of that belief did not need to be proved for the Appellants to be successful in their cases. In light of that finding, ruling that evidence that went to the Vaccine Issue was not relevant or admissible: Grounds 4-5 of the Appeals; Ground 5A of the Colton Appeal; Ground 6 of the Mayne Appeal;

(c)    failing to determine that certain actions amounted to adverse action by the Respondent: Grounds 6 and 9 of the Colton Appeal; Grounds 8 and 11 of the Mayne Appeal;

(d)    failing to apply ss 360 and 361 of the FW Act, including by failing to find that the Respondent’s reasons for taking adverse action included the proscribed reason, being that the appellants had not become vaccinated: Grounds 7 and 8 of the Colton Appeal; Grounds 9 and 10 of the Mayne Appeal;

(e)    failing to consider and determine a number of factual matters in the Appellants' favour: Ground 10 of the Colton Appeal; Grounds 7 and 12 of the Mayne Appeal; and

(f)    wrongly assuming the Respondent’s liability to prevent unvaccinated employees from attending its facilities was a strict liability and failing to consider s 203(2) of the Public Health and Wellbeing Act 2008 (Vic): Ground 11 of the Colton Appeal; Ground 13 of the Mayne Appeal.

2.    BACKGROUND

6    I do not intend to traverse, in these reasons, the factual matrix leading to the Respondent’s decision to terminate the employment of the Appellants. This has been covered in detail within the reasons of the primary decision and is largely unchallenged on appeal. However, given the grounds of appeal, it is relevant to outline the procedural background in some detail.

7    On 12 January 2023, the Appellants filed statements of claim in the Proceedings. On 24 October 2023, the primary judge ordered that the statements of claim be struck out in their entirety.

8    On that occasion, her Honour gave a detailed written judgment which set out the statutory framework for the Appellants’ claims under Part 3-1 of the FW Act and her Honour’s reasons as to why the statements of claim were struck out. Her Honour also addressed the deficiencies in the Appellants’ attempts to remedy the statements of claim presented to the Court on 31 August 2023. Her Honour allowed the Appellants, with the benefit of her reasons, until 23 November 2023 to file and serve further amended statements of claim.

9    On 12 December 2023, the Appellants, having been unable to produce compliant statements of claim, but insisting nonetheless on progressing by way of pleadings, were given a further opportunity to file and serve further amended statements of claim addressing the deficiencies set out in the primary judge’s 24 October 2023 decision. On 10 January 2024, the Appellants provided to the Court what they asserted were acceptable amended statements of claim (10 January SOCs).

10    On 2 February 2024, the Respondent filed an application seeking to, inter alia, strike out the 10 January SOCs and proceed to hearing by way of Originating Application (the respective F2 Forms) and affidavit.

11    On 5 February 2024, the parties appeared before the primary judge for a case management hearing. Mr Ryan, solicitor for the Appellants, pressed reliance on the 10 January SOCs following which the Respondent moved on the application to strike-out the 10 January SOCs.

12    Without seeking to set out exhaustively the nature of the exchanges during that case management hearing, the primary judge made the following observations at various points during the case management hearing:

this document that has been filed on 10 January is unwieldy and difficult to navigate. And what I am most concerned about is ensuring the applicants have an opportunity to put their case fairly. And proceeding in this fashion by way of pleadings is, I am concerned, presenting a prejudice to them.

…

That is why I had entertained with you earlier this morning the proposal to proceed in a less formal way, which enables contraventions to be articulated but then evidence to be filed – and then they can bring their case by way of submissions without having what will no doubt inevitably be – and fairly the case, in a pleadings context – the court and the respondent constantly returning to this document and trying to make sense of it… the other, less formal proposal enables them to bring their affidavit evidence that relates to the contravention and make the case clear without getting caught back at this procedural stage and prevented from pursuing the claim… it is not for the court to try and piece together your pleadings to try and understand your case.

…

What I am asking you to do as the representative of your clients is to articulate to me why the form F2 is deficient – what the differences are, so that I can understand – can we proceed with that, allowing you some amendments, to allow your clients to bring their case… I’m trying to help you to explain to me how you want to put your case, so I can help you get the case on foot and allow your clients to proceed.

…

Just because of the way we’re proceeding without pleadings and the applications, we will bed down the four corners of the dispute in the orders… But if submissions are filed as well, that might enable each party to clearly understand the case they’re having to answer.

13    The primary judge made orders on 5 February 2024 that the Proceedings would proceed by way of the original claims (ie, the respective F2 forms), with the following amendments:

The matter proceed by way of the original claim (Form 2…) with the following amendments to the alleged contraventions:

(a)    The alleged contraventions of ss.340 and 341 of the Fair Work Act 2009 (Cth) (FW Act) to include an additional alleged contravention by which it is claimed that the Applicant had a workplace right to be consulted under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and/or the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 and there was adverse action taken by the Respondent in denying or failing to so consult and that adverse action was taken because the Applicant had a right or obligation under the OHS Act.

(b)    The alleged contraventions of s.343 of the FW Act to include an additional alleged adverse action in the form of refusal to roster.

14    In the PJs, the primary judge stated that the case was ordered to proceed on the original claim with two specific amendments to the alleged contraventions in order to facilitate the progress of the proceedings as quickly, inexpensively and efficiently as possible.

15    The Appellants did not seek to appeal or challenge the 5 February Orders prior to this appeal.

3.    GROUNDS OF APPEAL

3.1    Grounds 1, 2 and 3: 5 February Orders

16    By Grounds 1-3, the Appellants, in effect, contend that the primary judge erred in refusing to allow the Appellants to rely on their 10 January SOCs. The Appellants contend that the primary judge erred by limiting their case to their original claims (subject to the amendments made under the 5 February Orders), and submit, in a generalised manner, that by not permitting the Appellants to have their claims determined on the basis presented in their outlines of submissions, the Appellants were prevented from properly agitating the whole of their case at trial.

17    It is not clear how precisely the Appellants submit that the primary judge erred in refusing the 10 January SOCs. Given the previous decision made by the judge in respect of the Appellants’ pleadings, the opportunities provided to the Appellants to address the issues identified in respect of the pleadings, and the primary judge’s observations that the 10 January SOCs were “unwieldy”, “difficult to navigate” and such that the court “cannot work with it”, there is no clear basis on which it is submitted that the primary judge erred in her Honour’s decision to progress the Proceedings by way of original claims (subject to the amendments made under the 5 February Orders). Indeed, it is evident from the comments made by the primary judge at the case management hearing on 5 February that such an approach was taken to enable the progress of the Proceedings in a manner that would enable the Appellants to bring their claim, rather than entangle the Appellants in the specifics and complexity of their pleadings.

18    The Appellants, however, argue that the effect of the 5 February Orders, and the primary judge’s subsequent decision to prevent the Appellants from having their claims heard and determined as they sought by way of submissions, had the effect of preventing the Appellants from properly bringing their whole case, denying them procedural fairness.

19    The Appellants assert that their exchange with the primary judge at the case management hearing on 5 February 2024 led them to understand that the “less formal way” in which the proceeding was to progress meant that they would be able to rely on further affidavits to give more detail to their allegations, and explain their cases in their submissions. The Appellants suggest that the primary judge thereby erred in defining the issues by reference to the original claims in each of the Proceedings (subject to the amendments made under the 5 February Orders).

20    The Appellants’ assertion that the Proceedings would proceed in a “less formal way” as a generalised statement is not correct. The informality referred to by the primary judge at the hearing on 5 February 2024 was directed at the pleadings which is made clear in the context of her Honour’s comments extracted in these reasons above. The primary judge was concerned with enabling the Appellants to bring their claim without being caught, at a procedural level, with issues around how the case was specifically pleaded, particularly given the unwieldy nature of the pleading. It appears, quite clearly, that allowing the proceeding to proceed by way of the original claims (subject to the amendments made under the 5 February Orders) was intended to allow the Appellants to articulate the contraventions alleged more informally through affidavit material and by way of submissions, rather than through the specificity of pleadings. It was not a general invitation for the Appellants to raise whatever issue they ultimately sought fit at the trial. The amendments made to each of Appellant’s original claims, pursuant to the 5 February Orders, were specifically in order to make up for what were identified as “deficiencies” in the original claims and the contraventions the Appellants sought to articulate.

21    It follows that there is no proper basis advanced as to why the primary judge was wrong in refusing, at the hearing on 2 and 3 May 2024, to allow the Appellants’ claims to be heard and determined as they had been presented in their outline of submissions.

22    For these reasons, the Appellants were not denied procedural fairness in the Proceedings. The Appellants did not challenge the 5 February Orders until this appeal. The Appellants, in effect, agreed to progress the Proceedings on that basis. The Respondent prepared and defended the Proceedings on such basis. The Appellants’ submissions do nothing more than assert procedural unfairness without identifying error on the part of the primary judge.

23    Additionally, the Appellants raise, in passing and by way of submission only, that the primary judge was “reneging” on what the Appellants were told which indicates bias and a lack of impartiality. For the reasons already noted above, it is incorrect to suggest that the primary judge, in any way, “reneged” on her previous rulings as to how the matter would proceed. Additionally, the Appellants’ submissions advance no evidence that the primary judge approached the issues in the case with a closed mind, had pre-judged the matter, or was indifferent to the evidence presented. Any suggestion of actual bias, which appears to be what is submitted by the Appellants, is without foundation and must be rejected. Any suggestion of apprehended bias cannot be maintained when consideration is had of the transcript of the hearing which make plain the lengths the primary judge went to in order to provide the Appellants with every opportunity to prosecute their respective cases.

24    For the reasons given, Grounds 1, 2 and 3 of the Appeals must be dismissed.

3.2    Grounds 4, 5 and 5A (Colton) and Ground 6 (Mayne): the Vaccine Issue

25    Grounds 4, 5 and 5A (Colton Appeal) and 6 (Mayne Appeal) are, in effect, an attempt to re-agitate on appeal the Vaccine Issue.

The Respondent’s concession on the Vaccine Issue

26    At the case management hearing on 5 February 2024, the Respondent conceded that the Appellants were genuine in their beliefs as to the (un)safety, (in)efficacy, and (in)effectiveness of the COVID-19 vaccines. This concession was also confirmed at trial.

27    In light of the concession, the Respondent objected to a large category of evidence relating to the safety, efficacy and/or effectiveness of any or all of the COVID-19 vaccines available and/or administered at any time in Australia, on the basis that it was not relevant to a fact or issue in the proceeding.

28    The concession and, by its result, resolution of the Respondent’s objection to evidence, was recorded in the PJs as follows:

It is perhaps understandable that both applicants are desirous to have findings made about the safety, effect, efficacy and/or effectiveness of the COVID-19 vaccines because the approach of public policy makers in these respects (and with which they fundamentally and strongly disagreed) underlies the series of events that lead to the cessation of their employment with the Respondent.

However, as the Respondent has accepted that the Applicant was genuine in [his/her] beliefs about the (un)safety, (in)efficacy and (in)effectiveness of the COVID-19 vaccines, the truth of [his/her] beliefs does not need to be proved in order for [him/her] to succeed in this case.

Accordingly, the evidence and bundle of documents subject of the primary objection is not received in this case.

29    As the primary judge observed in the PJs, the “critical issue in the present case turns on the Respondent’s reason(s) for the action it took (or inaction, as the case may be)”. The primary judge concluded that the substantive and operative reasons for the Appellants’ dismissals were separate and distinct from the exercise or proposed exercise of a workplace right. The primary judge found that the Appellants were dismissed because of their failure to provide the requested proof of vaccination against COVID-19 or an applicable exemption in accordance with the then operative public health orders: Colton PJ at [125]; Mayne PJ at [142].

Exclusion of evidence as to the Vaccine Issue was appropriate

30    At the hearing before the primary judge, and in light of the concession made, the Respondent objected to any and all evidence that went to establishing the Vaccine Issue. That is, the Respondent contended that the evidence was irrelevant and therefore inadmissible by reason of s 56(2) of the Evidence Act 1995 (Cth). The Appellants were on notice of this from at least the 5 February 2024 case management hearing. The primary judge observed on that occasion:

I can indicate to you Mr Ryan, that it would seem based on the concession that has been made by the respondent that there is no need for expert evidence to prove the safety of the COVID vaccine or otherwise, because they accept your clients held a view about that. And so that ought to confine the evidence … so you can take on notice, that concession, for what it is.

31    It is not correct to submit, as the Appellants seek to do, that there was a lack of notice or proper opportunity to respond. The Appellants were squarely on notice, through the explicit comments made by the primary judge, that there would be issues as to the relevance of such evidence in light of the concession made by the Respondents.

32    Additionally, while the Appellants’ now seek to submit that, by excluding the evidence regarding the Vaccine Issue, they were deprived of the opportunity to prove their case, they have not substantively engaged with the correctness of the primary judge’s approach. The primary judge was plainly correct to state that, in light of the concession made by the Respondent, the truth of the (un)safety, (in)efficacy and (in)effectiveness of the COVID-19 vaccines did not need to be established as an issue in the Proceedings. It follows that without establishing an error in the primary judge’s approach to this issue, it cannot logically follow that the Appellants were somehow deprived of the opportunity to prove their case when the evidence that was excluded was not in respect of a live issue in the Proceedings.

33    The Respondent’s objection was appropriately taken in accordance with the 5 February Orders. The Appellants were on notice, well in advance of the hearing, of the nature of the objections. It was reasonable and open to the primary judge to determine the objections and refuse to admit that evidence.

34    The Appellants have failed to establish any appellable error in the primary judge’s decision to exclude the evidence. The Appellants’ submissions, that the Court was wrong to assume any evidence that touched on the safety and effectiveness of the COVID-19 vaccines was irrelevant, fails to understand the operative question in the Proceedings, being, as identified by the primary judge, the Respondent’s reason(s) for the action it took.

35    Once the Vaccine Issue was excluded, no evidence could be led with respect to that issue and no witness could be cross-examined on that issue as it was irrelevant. There is no substance to the Appellants’ submission that their cross-examination of the Respondent’s witnesses was constrained or incorrectly disallowed by the primary judge.

36    I accept the Respondent’s submission that Grounds 4, 5 and 5A (Colton Appeal) and 6 (Mayne Appeal) are an attempt by the Appellants to reagitate the Vaccine Issue where this was not a live issue in the context of the claims brought. Appeal Grounds 4, 5, 5A (Colton Appeal) and 6 (Mayne Appeal) must be dismissed.

3.3    Grounds 6 and 9 (Colton Appeal) and Grounds 8 and 11 (Mayne Appeal): Failure to find adverse action

37    Under Ground 6 (Colton Appeal), Mr Colton states that:

The Court erred in

(i)    failing to consider and determine [at paras 102 to 104, and 108] whether the Applicant had exercised a workplace right by declining to be vaccinated while the concerns he had raised about the safety and effectiveness of the vaccines remained unaddressed, and

(ii)    failing to determine that Respondent’s actions in threatening not to roster him for work, failing to roster him for work after 2 January 2022, and dismissing him on 14 February 2022 were adverse actions affecting that right.

38    I accept the Respondent’s submission that Ground 6(i) of the Colton Appeal is a further attempt to agitate the Vaccine Issue which, for the reasons canvased above, must be dismissed. In any case, the primary judge noted at Colton PJ [108] that in light of the findings made regarding the motivating and actuating reasons for all of the Respondent’s conduct with respect to the introduction and implementation of its mandatory vaccination direction, it was unnecessary to resolve the contests as to whether Mr Colton had in fact exercised or proposed to exercise the claimed workplace rights. The primary judge was plainly correct to take this approach.

39    The premise of Ground 6(ii), namely, that Mr Colton was not being rostered for work after 2 January 2022, was not alleged in the Colton Form 2 and did not otherwise form part of amendments in the 5 February Orders: see [98] Colton PJ. On that basis, it was not agitated in the Proceedings, and is not now open to Mr Colton to argue as a ground of appeal.

40    Similarly, Ground 8 of the Mayne Appeal, that Ms Mayne being denied sick leave amounted to adverse action, was not in the Mayne Form 2 or otherwise included as part of the amendments under the 5 February Orders: see [104] Mayne PJ. The fact that it did not form part of Ms Mayne’s stated case was conveyed to Mr Ryan by the primary judge during the course of the trial. Again, it does not provide any proper ground to appeal the Mayne PJ.

41    While the above matters may have been raised in the statements of claim that were struck out or not accepted for filing, they were excluded and not part of the Proceedings by reason of the 5 February Orders. For the reasons already noted above in respect of Grounds 1, 2 and 3, there is no proper basis to suggest that there was an error in the manner in which the Proceedings progressed and were heard, and it follows that there is no proper basis now to allow the Appellants to depart from the basis on which it conducted its case at first instance. Ground 6 of the Colton Appeal and Ground 8 of the Mayne Appeal must be dismissed.

42    By Ground 9 of the Colton Appeal and Ground 11 of the Mayne Appeal, the Appellants contend that the primary judge erred in failing to find the Respondent engaged in adverse action by failing to consult with the Appellants in relation to its mandatory vaccination policy. The Appellants, by these grounds of review, attempt to reagitate matters that were traversed at trial without identifying any legal basis for review. Additionally, the issues identified by the Appellants are directed largely at whether the factual circumstances were such that an obligation to consult arose, and whether there was an omission to properly initiate consultation. However, as the primary judge identified (at [147]-[148] Mayne PJ; [131]-[132] Colton PJ), nothing turns on whether those factual circumstances are established since the evidence consistently points to the conclusion that the Respondent’s actions in deciding to introduce the mandatory vaccination policy were motivated by the need to continue its operations in accordance with emerging law. The Respondent has failed to identify any basis on which to impugn the primary judge’s finding in this respect. Ground 9 (Colton Appeal) and Ground 11 (Mayne Appeal) must be dismissed.

3.4    Grounds 7 and 8 (Colton Appeal) and Grounds 9 and 10 (Mayne Appeal): Failure to apply sections 360 and 361 of the FW Act

43    Grounds 7 and 8 of the Colton Appeal and Grounds 9 and 10 of the Mayne Appeal are premised on a foundational error, being the assertion that the primary judge failed to consider sections 360 and 361 of the FW Act. They variously assert that the primary judge erred in finding that the Respondent’s reasons for taking adverse action did not include the proscribed reason, being that the appellants had not become vaccinated.

44    At [24] of the PJs, the primary judge states:

Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant adverse action is taken for reasons that include a proscribed reason: s.360.

45    In each of the PJs, the primary judge set out in detail her consideration of the evidence and reasoning as to the “reasons” for the decisions that were alleged to amount to adverse action. The primary judge addressed each under the following headings:

(a)    “Why was the Applicant not rostered for work from 17 September 2021?”: Mayne PJ at [118]-[128] (noting that this was not a form of adverse action alleged in the Colton Proceeding).

(b)    “Why was the Applicant dismissed from his/her employment?”: Mayne PJ at [129]-[143]; Colton PJ at [112]-[127].

(c)    “Why was there a denial or failure to follow a consultation process arising under an applicable workplace instrument?”: Mayne PJ at [144]-[149]; Colton PJ at [128]-[134].

46    At each stage of the analysis, the primary judge made clear that, on the evidence before the court, the Respondent’s reasons were to give effect to the then operative public health directions. This substantive and operative reason for the Respondent’s decision was separate and distinct from the proscribed reasons which the Appellants had sought to argue. It is clear on a plain reading of the PJs that the primary judge considered the multiple alleged reasons and dismissed them, determining “the” singular reason for the dismissals by reference to the evidence of the employer.

47    The path of reasoning disclosed in the PJs make it clear that the primary judge considered ss 360 and 361 of the FW Act. Grounds 7 and 8 of the Colton Appeal, and Grounds 9 and 10 of the Mayne Appeal fail to identify any appellable error in the Primary Judgments. It follows that these Grounds must be dismissed.

3.5    Ground 10 (Colton Appeal) and Grounds 7 and 12 (Mayne Appeal): Failure to consider and determine facts in the Appellants’ favour

48    Ground 10 of the Colton Appeal and Grounds 7 and 12 of the Mayne Appeal do not provide any legal basis upon which it could be said the matters identified amount to an error of fact or of law that would give rise to an appellable error.

49    The primary judge’s conclusions as to consultation were open to her on the evidence. This Court, on appeal, will not interfere with the primary judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). The Appellants on this appeal have not demonstrated error by the primary judge in the findings that her Honour made in relation to the evidence.

50    For these reasons, Ground 10 of the Colton Appeal and Grounds 7 and 12 of the Mayne Appeal must be dismissed.

3.6    Ground 11 (Colton Appeal) and Ground 13 (Mayne Appeal) – Wrong assumption of strict liability

51    Ground 11 of the Colton Appeal and Ground 13 of the Mayne Appeal are misconceived. At no stage of the proceedings was the legal effect or validity of the specified facilities order or the workplace order an issue for determination in the proceedings. The relevant fact, as found by the primary judge, is that the Respondent took the view that the mandatory vaccination directions which commenced on 7 September 2021 applied to all its employees, since the Respondent was predominantly an aged care facility and employees were required to work across all areas of the hospital: Mayne PJ, [65]. The primary judge was entitled to make the finding that she did at paragraphs [59]-[66] of the Colton PJ, and [57]-[65] of the Mayne PJ.

52    For the reasons given, Ground 11 of the Colton Appeal and Ground 13 of the Mayne Appeal must be dismissed.

4.    DISPOSITION

53    The Appeals will be dismissed. In the event that the Appeals were dismissed, the Respondent asked to be heard on the question of costs. The Respondent shall, by 25 August 2025, file any affidavit material and written submissions (not exceeding 5 pages) as to costs. The Appellants shall, by 3 September 2025, file any affidavit material and written submissions (not exceeding 5 pages) as to costs. Subject to the parties indicating that they wish to be heard orally on the question of costs, I intend to determine the question of costs on the papers.

Associate:

Dated:    13 August 2025