Banias, Chris v Australian Community Pharmacy Authority

[1997] FCA 170

IN THE FEDERAL COURT OF AUSTRALIA              )

VICTORIA DISTRICT REGISTRY  )  No VG 79 of 1997

GENERAL DIVISION  )

BETWEEN:CHRIS BANIAS

First Applicant

and

MARIO VERROCCHI

Second Applicant

AND:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

and

THE SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY SERVICES

Second Respondent

COURT:Sundberg J

DATE:14 March 1997

PLACE:Melbourne

MINUTES OF ORDER

Upon the first applicant giving the usual undertaking as to damages, the Court orders that:

1. The decision made by the first respondent on 9 June 1995 pursuant to s90(3B) of the National Health Act 1953 to recommend to the second respondent that an approval be
   granted pursuant to s90(3) of the Act to Messrs Weir and Alexander to supply pharmaceutical products at or from premises at 870 Plenty Road, Reservoir be suspended, and proceedings under that decision be stayed, in each case until the hearing and determination of this Application or further order.

1. On or before 18 March 1997 the applicants serve a copy of this order and of my reasons for decision on Messrs Weir and Alexander.

1. If by 25 March 1997 Messrs Weir and Alexander have not applied to be joined as parties to the Application then:

(a)on or before 4 April 1997 the respondents file and serve on the applicants any written submissions on the relevance of s135A of the Act to the applicants' request for reasons for the decision and to the applicants' notice to produce.

(b)on or before 11 April 1997 the applicants file and serve on the respondents any written submissions on the relevance of s135A as aforesaid.

1. There be liberty to apply.

1. The further hearing of the Notice of Motion be adjourned to a date to be fixed.

1. The costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA              )

VICTORIA DISTRICT REGISTRY  )          No VG 79 of 1997

GENERAL DIVISION  )

BETWEEN:CHRIS BANIAS

First Applicant

and

MARIO VERROCCHI

Second Applicant

AND:AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

and

THE SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY SERVICES

Second Respondent

COURT:Sundberg J

DATE:14 March 1997

PLACE:Melbourne

REASONS FOR JUDGMENT

SUNDBERG J:

The applicants have applied for an order suspending the operation of a decision made by the first respondent on 9 June 1995 pursuant to s90(3B) of the National Health Act 1953 to recommend to the second respondent that an approval be granted pursuant to s90(3) of the

Act to Messrs Weir and Alexander to supply pharmaceutical benefits at or from premises at 870 Plenty Road, Reservoir, and staying proceedings under that decision.

The applicants have in my view shown that there is a serious question to be tried in relation to their claim that the first respondent's decision involved an error of law in the construction of clause 6(a) of the Determination.

The decision to make the recommendation could only have been made if the decision-maker regarded access through the Target car park as "lawful access" for the purpose of measuring the distance between the existing Weir and Alexander premises and their proposed premises.  There is a serious question as to whether the phrase "measured door to door by the shortest lawful access route" contemplates access as of right (as the applicants claim) or extends to access which is available only by leave or licence.

The balance of convenience does not favour the grant of relief to the second applicant.  I am not persuaded that the fear he expresses as to the effect of the decision on the continued profitability of his business is justified.  He has been conducting business from his current premises at Northland Shopping Centre for 10 years.  The existing Weir and Alexander premises are more than a kilometre away from his premises.  The proposed premises are about another kilometre further away from his premises.  There is no evidence that the relocation of Weir and Alexander to that more distant site justifies the fear the second applicant expresses, and no material from which I could infer that he is likely to suffer loss of business as a result of the relocation.

The balance of convenience in relation to the first applicant comes down in his favour.

I have had regard to the first applicant's delay in seeking relief.  It is not clear when he became aware of the decision complained of.  It may have been as early as September 1996 when he says he discovered that the distance between the two sites was more than a kilometre.  Or it may have been as late as November 1996 when the second applicant was informed by the first respondent that the decision had been made.

But even if the first applicant knew of the decision as early as September, it is clear that mere delay, even unreasonable delay, does not necessarily disqualify an applicant for a stay or for an interlocutory injunction.  Unreasonable delay may have that effect if it has occasioned detriment to a respondent.  But there is no evidence of that here.  Further, although there is, again assuming knowledge as of September, an unexplained period of some three months between October 1996 and early 1997 when the first applicant commissioned surveyors, it seems to me that what was happening between September 1996 and the institution of proceedings was that the first applicant was investigating the matter and attempting to acquire better means of proving his case.

I have also taken into account the possible detriment that might be occasioned to Weir and Alexander as a result of a stay.  But all that has happened is that the first respondent has recommended a certain course to the second respondent. The second respondent has not acted on, and is not obliged to act on, the recommendation. Section 90(3B) is clear that he may refuse to grant an approval even if the grant has been recommended by the first respondent. While there is no evidence from Weir and Alexander, I doubt that reasonable
businessmen, knowing that they had the benefit of no more than a recommendation, would in reliance thereon commit themselves in any substantial manner.

I propose to grant the stay sought by the first applicant.

I will order that a copy of the order be served on Weir and Alexander, so that they can, if so advised, apply to be joined as parties and seek appropriate relief including the lifting of the stay.

The applicants also seek an order that the first respondent provide reasons for its decision.  As well they have served on the respondents a notice to produce all documents relating to the making of the decision.

The respondents have relied on the secrecy provision in s135A of the Act as a justification for not providing reasons and not producing the documents.

As I foreshadowed during argument, there being no urgency in relation to either of these matters, and the s135A issue being an important one which was not fully explored in argument, I propose to afford the parties the opportunity to file written submissions and, if they wish, to speak to those submissions at an early date.

I certify that this and the preceding four pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg

........ ........ ........ ........ ........ ........ .

Associate

14 March 1996

Counsel for the Applicants:  N A Moshinsky QC

Solicitors for the Applicants:  Wolf Klooger & Co

Counsel for the Respondents:  T J Ginnane

Solicitors for the Respondents:  Australian Government Solicitor

Date of Hearing:  13 March 1997

Place of Hearing:  Melbourne

Date of Judgment:  14 March 1997