Crowe, R.C. v Riordan, J.M - [1992] FCA 125

Re: REGINALD CHESTER CROWE; JOHN LOUIS MARONESE and EXTENDED HOURS PHARMACIES'
ASSOCIATION
And: J.M. RIORDAN; J.R. RICHARDSON; G. MILLER; M. O'BRIEN; I. McCAULEY
(CONSTITUTING THE PHARMACEUTICAL BENEFITS REMUNERATION TRIBUNAL); THE
COMMONWEALTH OF AUSTRALIA and THE PHARMACY GUILD OF AUSTRALIA
No. N G16 of 1991
FED No. 125
Administrative Law - Courts and Tribunals - Health - Judicial Review -
Statutory Construction
(1992) 26 ALD 712 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - section 39B of Judiciary Act 1903 - judicial review - independent tribunal - duty to act judicially in sense of provide procedural fairness - duty to provide reasons - right of interested parties to and legitimate expectation of hearing.

Courts and Tribunals - whether Parliament can require an independent tribunal to bring in a predetermined decision and make it appear to be a duly considered determination arrived at after due process - whether the executive government can effect a fundamental change to the independence of a tribunal and truncate its operation without express unambiguous authority from Parliament - desirability of expert tribunal appearing before court as amicus curiae

Health - pharmaceutical benefits scheme - manner of ascertainment of Commonwealth price or subsidy paid to approved pharmacists - publicly known criteria for decisions

Judicial Review - natural justice - restrictions imposed by statute - irrelevant considerations - acting on erroneous view of the law - whether discretionary issue that confusion and difficulty will follow quashing of determination

Statutory Construction - agreement between two parties made conditional on statutory determination - whether statute permits determination by independent tribunal to ratify agreement

Words and Phrases - "Commonwealth price" - "proceeding before the Tribunal" - "give effect to"

Acts Interpretation Act 1901 section 15AA(1)

Administrative Decisions (Judicial Review) Act 1977 sections 5(1), (2)

Judiciary Act 1903 section 39B

National Health Act 1953 Part VII, Division 3, sections 84(1), 85,98B(1), 98B(2), 98B(4), 98BA(1), 98BA(2), 98BAA(1), (2), (3), 98BB,98BC, 98BD(1), (2), (3), 98BE

Australian Tramway and Motor Omnibus Employees Association v Commissioner for Road Transport and Tramways (NSW) (1935) 54 CLR 470

Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554

Commissioner of Police v Tanos (1958) 98 CLR 383

Twist v Randwick Municipal Council (1976) 136 CLR 106

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Kioa v West (1985) 159 CLR 550

J v Lieschke and Ors (1986) 162 CLR 447

Hamblin v Duffy (No. 2) (1981) 55 FLR 228

Bread Manufacturers of NSW and Ors v Evans and Ors (1982) 56 ALJR 89

Commonwealth of Australia v Pharmacy Guild of Australia and Anor (1989) 91 ALR 65

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Dornan and Ors v Riordan and Ors (1990) 24 FCR 564

Pharmacy Guild of Australia and Anor v Riordan and Ors (unreported 13 June 1989) Northrop J

Pharmacy Guild of Australia and Anor v Riordan and Ors (unreported 26 October 1989)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] FCA 125
Decision Date: 18 MARCH 1992

CaseChat Overview and Summary

The case of Crowe, R.C. v Riordan, J.M involved the applicants seeking judicial review of decisions made by the Tribunal regarding an agreement under the National Health Act 1953. The Federal Court was tasked with examining whether the Tribunal's actions complied with the requirements of procedural fairness and the duty to provide reasons. The applicants argued that the Tribunal's decision to cancel a public hearing and subsequently give effect to an agreement was flawed due to a lack of procedural fairness and adequate reasons. The respondents, including the Tribunal and the Minister for Aged, Family and Health Services, contended that the Tribunal's actions were within its lawful powers and that the agreement was properly implemented.

The central legal issues the court had to address were whether the Tribunal had a duty to act judicially by providing procedural fairness and reasons for its decisions, and if the respondents' actions breached these duties. The court also needed to determine whether the interested parties had a legitimate expectation of a hearing and whether this expectation was violated by the Tribunal's actions. Additionally, the court examined the proper procedure for giving effect to the agreement and whether the Tribunal had jurisdiction to make the decisions in question.

The court found that the Tribunal had indeed breached its duty to act judicially by failing to provide adequate reasons for its decisions and by not affording the applicants a fair opportunity to be heard. The Tribunal's decision to cancel the public hearing and subsequently give effect to the agreement without proper procedural fairness was deemed unlawful. The court held that the applicants had a legitimate expectation of a hearing, which was not met by the Tribunal's actions. Consequently, the Tribunal's decisions were set aside, and the matter was remitted for reconsideration in accordance with the court's reasons. The respondents were ordered to pay the costs of the applicants and the Tribunal. The court also reserved the right for the applicants to apply for the addition of the relevant Minister as a party in the proceedings.

Orders

Orders of the court

1. The decision of the first respondent Tribunal of 10 December 1990 to cancel a public hearing into a purported agreement under section 98BAA of the National Health Act 1953 and its determination of 20 December 1990 to give effect to an agreement dated 6 December 1990 between the Minister of State for Aged, Family and Health Services and the third respondent are set aside ab initio, that is on and from 1 January 1991.

2. The question of the giving effect to the agreement is remitted to the Tribunal to be dealt with in accordance with the reasons for judgment herein.

3. The second and third respondents are to pay the applicants' and first respondent Tribunal's costs.

4. Liberty to apply is reserved concerning the addition of the relevant Minister as a party.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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