Legal advice warned Victoria's coronavirus lockdown curfew might not be compatible with the state's human rights charter before it was imposed last month.
Associate Professor Michelle Giles, who signed off on the measures, relied on advice saying "on balance" the proposals appeared to comply with rights including freedom of movement.
Mornington Peninsula cafe owner and aspiring Liberal MP Michelle Loielo is challenging the curfew in the Supreme Court, arguing her human rights have been infringed by the direction.
It still applies across metropolitan Melbourne, requiring residents to stay home between 9pm and 5am.
"It is the department's view these directions are on balance likely to be compatible with human rights under the charter ... in light of the exceptional circumstances," legal advice Prof Giles relied upon said.
But further advice, that Justice Tim Ginnane ordered must be released, revealed a caveat.
"However we note that this assessment is not without doubt, in particular there is some risk of incompatibility with respect to the evening curfew," Ms Loielo's lawyer Vanessa Plain read from the document in court on Friday.
She said that further sentence put Prof Giles' credibility plainly in issue and asked that she be forced to appear in person during the trial.
Ms Plain raised concerns that Prof Giles might be coached in her evidence if allowed to appear by videolink or over the phone.
But Prof Giles' lawyer Jason Pizer took offence at the suggestion.
"Allegations Associate Professor Giles might be coached or directed by those sitting behind the government - that's quite an extraordinary submission to make and there's absolutely no basis for it," he said.
Requiring her to attend in person, along with others in the courtroom, would put the health of those people and their families at risk of both contracting and spreading COVID-19, he said.
Justice Ginnane rejected the request.
He also ordered the department to hand over parts of the data relied upon by Prof Giles to argue a link between the restrictions and a reduction in case numbers.
Prof Giles' lawyers argued the data contained personal details of people who had tested positive for coronavirus and it would not be possible to remove all that information before Monday's trial.
Justice Ginnane ordered the first two pages of each of the 40 daily summaries of data be handed over, which would give Ms Loielo's lawyers enough detail to question Prof Giles about.
That cross-examination is expected to last more than two hours on Monday.
Australian Associated Press
