The Winning Victoria Back website is operated by David Weisinger (known on Facebook as “David Stills“) and supported by Jacquie Dundee.
Why we started (David Weisinger April 13, 2021)
David Weisinger was charged for alleged breaches of the Public Health and Wellbeing Act 2008 (Vic), which was to be heard before the Magistrates Court of Victoria.
The Age: “Man charged with inciting anti-lockdown protest spared fronting court“:
On 19 May 2021 and 24 May 2021, the defendant sought constitutional writs from the High Court, applications which were rejected for filing by Leonie Young (in her capacity as Deputy Registrar) and Carolyn Rogers (in her capacity as Senior Registrar).
On 1 June 2021, Gleeson J. directed that the applications were not to be issued or filed without the leave of a Justice. The applicant sought that leave before Gordon J. in Weisinger, In the matter of an application for leave to issue or file [2021] HCATrans 112 (25 June 2021)
The applicant appealed against the direction by Gleeson J. In the Matter Of An Application BY David Weisinger For Leave To Appeal [2021] HCASL 199 (14 October 2021)
And also sought an extension of time for leave to appeal against the decision of Gordon J. In the Matter Of An Application BY David Weisinger For Leave To Appeal [2021] HCASL 198 (14 October 2021)
Cotterill v Romanes
During this time, David Weisinger was briefly involved in another application before the Supreme Court of Victoria, as the Third Plaintiff, the Second Plaintiff being Tony Pecora, and the First Plaintiff being Kerry Cotterill. The First Defendant was Finn Romanes (in his capacity as the Deputy Public Health Commander) and the Second Defendant was Brett Sutton (in his capacity as Chief Health Officer).
The First Plaintiff in her originating application sought declarations that certain directions issued under the Public Health and Wellbeing Act 2008 were ultra vires on the basis that they impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution, after she was charged under these directions while holding a sign protesting Dan Andrews. While the second and third plaintiffs were later added as parties for the same cause, after further amended motions and directions hearings the months prior, it was realised that the second and third plaintiffs sought to challenge the validity of the Public Health and Wellbeing Act 2008 itself rather than the validity of the directions made under it. Therefore in Cotterill v Romanes (Ruling No 1) [2021] VSC 234 (30 April 2021) the second and third plaintiffs were removed as parties to the proceeding.
David Weisinger again sought to remove the matter to the High Court under section 40 of the Judiciary Act 1903 (Cth), in an application Cotterill v Romanes S ECI 2020 03946, as seen in this Public Service Announcement (David Weisinger July 4, 2021) where he encouraged others to fill out the template and send it to the High Court.
This is also apparent in a copy of a letter to the High Court Public Service Announcement (David Weisinger September 17, 2021) although it is hard to say how he had standing in the matter considering he had been removed as a plaintiff back on 30 April 2021.
The case went on with just the original plaintiff Kerry Cotterill. In Cotterill v Romanes [2021] VSC 498 (17 August 2021) Niall JA. delivered a lengthy detailed reasons including the testimony of several professors called as expert witnesses, with reliance on several authorities I had already referred to in a conversation with David and Jacquie the night before. (See screen shots further below). The proceeding was dismissed.
In Cotterill v Romanes (Ruling No 3) [2021] VSC 629 (30 September 2021) the costs were determined. It was held that the plaintiff Kerry Cotterill should pay the defendants’ costs of the proceeding, including any costs reserved after that date, and as Tony Pecora and David Weisinger were removed as plaintiffs there should be no order as to costs in respect of them. David Weisinger had submitted that the Court does not have jurisdiction because, based on the reasons in Palmer v Western Australia [2021] HCA 5 the validity of the directions did not involve a constitutional question and that therefore federal jurisdiction was not engaged. Tony Pecora adopted that submission and said that he was under a duty to bring the proceeding to prevent a breach of the criminal and civil law. He referred to a raft of legislation that he said compelled him to commence the proceeding. The court responded (at 11):
“The Court has jurisdiction. As originally formulated, the plaintiffs alleged that Directions No 14 were unconstitutional and directly in breach of the implied freedom of political communication. Ultimately, the first plaintiff alleged that Directions No 14 were not authorised by the Act on the basis that they infringed the implied freedom. Certainly on the first basis, and probably on the second, the matter involved the interpretation and application of the Constitution and the matter was in federal jurisdiction. The claim as originally formulated was not colourable and meant that the matter was then, and remained one, in federal jurisdiction. This Court has jurisdiction under s 39 of the Judiciary Act 1903 (Cth). Of course, if the matter were not in federal jurisdiction, this Court would plainly have state jurisdiction to entertain a claim to the validity of executive action purportedly undertaken under state legislation. (Kirk v Industrial Court (NSW) [2010] HCA 1.) There is no viable argument that this Court lacks jurisdiction altogether.”
David Weisinger attempted to explain this away in his summary Cotterill v Romanes S ECI 2020 03946 (David Weisinger October 2, 2021)
I explained a few of the various misconceptions to David Weisinger and Jacquie Dundee and was subsequently blocked on Facebook.
Reehman v Certis Security Australia Pty Ltd
Reehman v Certis Security Australia Pty Ltd and Anor [2021] HCATrans 200 was a challenge to the validity of the mandate imposed by the public health order that required Mr Reehman to be vaccinated in order to work at the Sydney Airport as a security guard for Certis Security Australia Pty Ltd. The second defendant was the State of NSW. The orders sought were to invalidate the Public Health Act 2010 (NSW), either in whole or in part, or in its practical operation, in particular the Public Health (COVID‑19 Air Transportation Quarantine) Order (No 2) 2021, as it impermissibly contravenes section 51(xxiiiA) and s 51(ix) of the Constitution, with a declaratory judgment to that effect. The State of NSW and Certis Security Australia Pty Ltd sought to have it remitted back to either the Supreme Court or the Federal Court, and the plaintiff opposed that motion. The Court decided on the Federal Court.
“Sixthly, the plaintiff has applied for leave to add David Weisinger, a resident of Victoria and the state of Victoria as parties to the proceeding so that the Court’s jurisdiction under s 75(iv) of the Constitution would be invoked.”
The whole basis of David Weisinger’s argument was that other cases had failed because they were constitutional arguments initiated at the Supreme Court level, as opposed to the High Court under section 76. They requested a review regarding the decision to remit the matter to the Federal Court as seen in the following correspondence Forshaddowing of a Writ of Certiorari (David Weisinger January 19, 2022):
David Weisinger’s latest crowd funding High Court challenge fell flat once again. The application for removal to the High Court in Kiley v Senior Constable Timothy McMahon [2022] HCASL 30 was rejected 10 March 2022:
Returning to his original matter he was charged with, his application for removal to the High Court was dismissed the same day in Weisinger v Detective Senior Constable Bruce Ingram [2022] HCASL 31 (10 March 2022).
David Weisinger – amended s40 Rebuttal to VGSO Response 02.12.2021 (David Weisinger December 17, 2021)
On the 13 January 2022, Gleeson J directed that the Registrar refuse to issue or file applications for writs by David Weisinger without the leave of a justice first obtained. He applied for that leave in C2 of 2022. In rejecting his application on 21 January 2022, Steward J noted that on 25 June 2021, Gordon J denied leave to issue or file as David Weisinger’s application “did not disclose an arguable basis for relief’ and was “an abuse of the process of the Court” and likewise Gleeson J on 16 July 2021, holding the application was “untenable” and therefore an abuse of process, and Keane J and Edelman J refused special leave to appeal the decisions of Gordon J and Gleeson J on 14 October 2021.
Steward J went on to deliver a scathing rebuke of David Weisinger’s vexatious applications, describing this one as “difficult to follow” and “legally incoherent”, stating:
“The applicant’s claims in respect of the validity of Commonwealth and State legislation evince a fundamental misunderstanding of Australia’s federal constitutional system. For example, the applicant claims that the Commonwealth has breached section 51(xxiiiA) of the Constitution “indirectly through the States Health Acts” by providing “funding for the provision of vaccination services”. The applicant’s broad assertions concerning the scope and effect of section 51(xxiiiA) do not find any support in the text of the Constitution or in the jurisprudence of this Court cited by him.”
“I am satisfied that the applicant has attempted to invoke this Court’s jurisdiction “on a basis that is confused or manifestly untenable”. The applicant’s various legal assertions are frivolous and without any proper basis.”
Although this response would satisfy most, David Weisinger continued to attempt to lodge further applications of a similar nature, to which Keane J delivered an even more scathing rebuke on of his latest application C8 of 2022, stating:
“Section 10A of the Australian Immunisation Register Act 2015 (Cth) does not impose civil conscription. The applicant’s contention is untenable for the reasons given by Steward J in his reasons in C2 of 2022. It is not necessary to repeat, or to add to, those reasons. That the applicant seeks to persist in advancing his contention, notwithstanding the refusal of leave in C2 of 2022, adds an element of vexation to the reasons which warrant the refusal of leave in the present case. The application is an abuse of process.”
