Today's High Court showdown over Victoria's lockdown laws may be about to turn into a fizzer, if the State Government has its way.
Hotelier Julian Gerner launched the challenge, calling for the shutdown to be ruled illegal, after damage to his business on the Mornington Peninsula.
But with Victoria set to announce a further lifting of restrictions on Sunday, lawyers for the State Government are urging the court to abandon the case, saying there's no longer any point.
Mr Gerner's legal team disagrees, telling the court they are not pursuing a hypothetical or pointless question.
"The answer will determine whether the state is at liberty to repeat its conduct if things change," they said in written submissions to the court opposing any abandonment of the case.
If it does go ahead the case could make legal history.
Mr Gerner's lawyers have set themselves a big task.
They say the shutdown breached an implied constitutional right to freedom of movement.
It's a whole new concept, and has seen the case take a bit of an unusual course, with what's known as a demurrer.
Bar owner will have to show implied right to freedom of movement exists
A demurrer is a document in which one party agrees with the facts put forward by an opponent, but dismisses them as irrelevant or invalid.
In this case the Victorian Government has agreed with Mr Gerner's assertions about the harm the restrictions have done to his Sorrento bar and restaurant, but says there was no breach of the constitution.
The upshot is Mr Gerner will have to show an implied right to freedom of movement does exist, if he's to show the shutdown was illegal.
And he's employed one of the best legal minds to do that, in Bret Walker, who recently argued successfully for Cardinal George Pell in the High Court.
In their submissions, his lawyers refer back to the history of the constitutional debates, and seek to hitch a ride on the well established implied right to freedom of political communication.
"To date, the implication of a freedom of movement as an aspect of the freedom of political communication has not been determined," the submissions say.
"Such an implication as an aspect of freedom of political communication is consistent with a free and confident society."
The concept of freedom of movement has also been linked to federation, which Mr Gerner's lawyers say logically requires freedom for people to move within the Commonwealth.
But the Victorian Government says it's not clear how that idea provides a basis for a broad implied freedom of movement.
"Victoria contends that there is simply 'no foothold' in the text or structure of the constitution to support a general implied freedom of movement as pleaded by the plaintiffs," its submissions say.
Lawyers for the state also suggest the idea is contrary to existing High Court rulings and is not supported by the drafting history of the constitution.
The case has been set down for one day, although if the demurrer is to be argued separately it may go on until Monday.
Earlier this week, in a separate legal case, a Victorian Supreme Court judge dismissed an action from Melbourne cafe owner and Liberal Party member Michelle Loielo, who claimed the city's coronavirus curfew was unlawful.
Victorian Premier Daniel Andrews has said he would make announcements about the next stage of lifted restrictions on Sunday, after the state recorded seven consecutive days of zero new coronavirus cases this week.
The 25-kilometre travel radius in Melbourne will go, and the "ring of steel" between the city and regional Victoria will be lifted.
