A West Australian police officer who is challenging the state's now-defunct vaccine mandate has failed in an 11th-hour bid for court-ordered mediation to try to settle his case.
Ben Falconer started legal proceedings in the Supreme Court last year disputing the validity of the direction by Police Commissioner Chris Dawson that all officers had to be vaccinated against COVID-19.
He also took action against Chief Health Officer (CHO) Andrew Robertson over his direction that banned unvaccinated officers from attending police facilities.
The hearing is scheduled to start in a month, but with the vaccine mandates lifted for most last week, he today tried to get Justice Jeremy Allanson to order the Police Commissioner to personally take part in mediation in an effort to settle the matter.
Shane Price SC told the court the Commissioner had been invited to take part, but there had been no "open response".
Mr Price described the matter as being ripe for mediation.
"It would be the most appropriate way to ensure matters are dealt with [in a way that is] just, quick and cheap," he said.
Mr Price conceded that given the matter dealt with employment issues, any discussions would not involve the CHO, but he said any agreement that could be reached with the Commissioner would settle all proceedings.
Commissioner's lawyers oppose bid
The application was opposed by the lawyers for the Commissioner, who told the court all indications were that any talks would be "fruitless".
Kenneth Pettit SC said it appeared any mediation would be about disciplinary action being taken against Mr Falconer, and not about the legal issues involved.
He said any settlement would not deal with other cases that were currently the subject of court proceedings.
They include challenges by a critical infrastructure worker, a State Emergency Service worker and an employee of the Department of Corrective Services.
Mr Pettit also questioned why the application asked for the Commissioner to attend any talks personally, saying he was extremely busy and the issues "did not warrant his personal attendance".
Mr Price replied by saying the Commissioner could send a delegate who had the power to make decisions to resolve the matter.
He also said if the Falconer matter was settled, his legal team was prepared to undertake informal discussions to try to settle those matters as well.
"It is not our intention to run a case for the sake of running a case."
Judge 'not satisfied' mediation the answer
Justice Allanson said while he was from a generation of "give peace a chance", the issues proposed for mediation, including discipline within the police force, were appropriate for court-ordered talks.
But he did encourage both sides to try to resolve the matter.
"If the parties have a will to settle, they will. I am not satisfied court-ordered mediation is going to be an effective way of achieving that," he said.
The three-day hearing of the matter is due to start on July 13.
