A legal challenge brought by a Victorian cafe owner who is arguing the state’s tough lockdown measures put her small business at risk and breached her human rights will be heard in a judge-only trial before the supreme court over two days from Monday.
The suit was filed by Michelle Loielo, who owns a cafe on the Mornington Peninsula in Melbourne’s south-east. Her affidavit said that the state’s restrictions, including a curfew, had seen her lose the majority of business, with revenue dropping from up to $20,000 per week to $400 under stage four lockdown measures.
Loielo, who is seeking preselection for the Liberal party, is specifically challenging the curfew, which was introduced in August and limited people in metropolitan Melbourne – which includes the Mornington Peninsula – from leaving their home between 8pm and 5am. On 14 September this changed from 9pm to 5am, and will remain in place until 28 October.
Loielo is arguing that the curfew is a breach of her human rights, and that the impact on her cafe had left her in fear of losing the family home, given she is the sole income-earner and provider to her three children after her husband died of cancer two-and-a-half years ago. The case has been brought against associate professor Michelle Giles, the state’s deputy public health commander.
In her affidavit to the court, Giles said she “had seen from the data a clear and direct correlation between the effect of the Stage 4 restrictions and the reduction of case numbers”. Justice Tim Ginnane has asked Giles to provide a further affidavit by Thursday to support the statement.
Giles also said in her affidavit that she had discussions with Victoria’s chief health officer, Prof Brett Sutton, and lawyers and policymakers from the department of health “… where I discussed, debated and weighed, the public health and human rights considerations and discussed the competing factors”.
“These conversations assisted me greatly in reaching my ultimate view that I should make the directions.” However, Giles, an infectious diseases doctor and public health expert with some two decades of experience, added that the decision to include the curfew was “… mine and mine alone” and it was “designed with an intent in mind to restrict movement”.
The premier, Daniel Andrews, previously defended the curfew by saying it had assisted police to do their job and monitor enforcement of public health directions, but in her affidavit Giles said policing was not the reason for the curfew.
“What was centrally relevant, to me, was whether the curfew was justified from a public health perspective,” the document states. “I concluded that it was.”
On Wednesday afternoon, the court said it had received notice from Giles’ representatives that they intended to make a claim of public interest immunity in relation to documents they are required to produce in the case. “This matter will be heard during Monday’s proceedings,” a court spokeswoman said.
