Crowe, Reginald Chester v Riordan, J. M.

[1992] FCA 1067

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 16 of 1991

)
GENERAL DIVISION )

BETWEEN:REGINALD CHESTER CROWE & JOHN LOUIS MARONESE & EXTENDED HOURS PHARMACIES' ASSOCIATION

Applicant

AND:J.M. RIORDAN, J.R. RICHARDSON, G.
MILLER, M. O'BRIEN & I.

McCAULEY (CONSTITUTING THE

PHARMACEUTICAL BENEFITS

REMUNERATION TRIBUNAL), THE COMMONWEALTH OF AUSTRALIA & THE PHARMACY GUILD OF AUSTRALIA

Respondents

23 March 1992

REASONS FOR JUDGMENT

LOCKHART J.

On 18 March 1992, Einfeld J made certain orders in this matter including an order setting aside a decision of 10 December 1990 to cancel a public hearing into a purported agreement under section 98BAA of the National Health Act 1953 and the determination of the first respondent, the Pharmaceutical Benefits Remuneration Tribunal of 20 December 1990 to give effect to an agreement of 6 December 1990 between the Minister of State for Aged Family and Health Services and the third respondent, The Pharmacy Guild of Australia.

A notice of appeal has not been filed from his Honour judgment, but counsel for the respondents has informed me today

that it is proposed to do so and that it is in the course of preparation. Counsel for the respondents has moved the court for a stay of his Honour's judgment pending the determination of the appeal on the assumption that there will be an appeal. It would appear to be common ground that once the appeal is instituted it is a matter of some urgency as it involves matters

of considerable public importance and expenditure of public
funds in large amounts.

I say nothing as to whether it would be appropriate to expedite the appeal or not, that can be determined by the judge who hears the motion for a stay. But counsel for the respondents has made it clear that one of the matters that arises in the motion for the stay concerns the interpretation or effect of certain of the orders of his Honour of the 18 March. In my view it is not appropriate that I should examine those questions unless there is no feasible alternative. His Honour is absent from Australia and will return on about 8 April this

year. The course that seems to me to be the correct course to follow is that the judgment be stayed until some date soon after the 8 April and that the motion for continuation of the stay can then be made returnable before his Honour.

It would obviously also be sensible that a motion for expedition of the appeal, if there be one, should be made returnable the same day before his Honour. The principal reason for a stay being granted in the meantime is that the

Commonwealth has a real problem, in the submission of counsel for the respondents, in that it is not clear whether the

Commonwealth is entitled in law to make relevant payments to pharmacists under the National Health Act or not and that is obviously a matter that could have large ramifications to the Commonwealth and pharmacists and parties to this proceeding. Counsel for the applicants has informed me that they do not oppose a stay being granted until a date soon after his Honour returns and the parties can then assess what course they should take pending the determination of the appeal.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 23 March 1992

Counsel for the Applicants : A. Hughes

Solicitors for the Applicants :Pigott Stinson Stuart Thom

Counsel for the Commonwealth :  R.M. Henderson

Solicitors for the Commonwealth:Australian Government Solicitor

Date of Hearing	: 23 March 1992
Date of Judgment	: 23 March 1992