Darnell v Stonehealth Pty Ltd - [2021] FCA 398

FEDERAL COURT OF AUSTRALIA
Darnell v Stonehealth Pty Ltd [2021] FCA 398

File number: QUD 51 of 2021

Judgment of: LOGAN J

Date of judgment: 11 March 2021

Catchwords:
ADMINISTRATIVE LAW – interlocutory application for an order pursuant to s 23 of the Federal Court Act 1976 (Cth) to restrain the Australian Community Pharmacy Authority (the Authority) from making any determination regarding applications in respect of certain premises – where the Authority is not due to consider the applicant’s
Application – where the Authority offers undertaking in respect of the applicant – interlocutory application for an order pursuant to s 23 to restrain the Authority from making any determination regarding applications in respect of a certain premises made by the fourth respondent – where the fourth respondent not pressing for substantive relief – where fourth respondent’s application materially similar to the first respondent’s – application dismissed

PRACTICE AND PROCEDURE – oral application to join party as the fourth respondent – where interlocutory application by the applicant withdrawn – where similar interlocutory application sought to be made orally by the fourth respondent – leave granted

COSTS – application by first, second and third respondents for costs order – where applicant submitted that undertaking offered was late – whether appropriate to reserve costs in interlocutory application – costs awarded to first, second and third respondents

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16

Federal Court of Australia Act 1976 (Cth) s 23

Judiciary Act 1903 (Cth) s 39B

National Health Act 1953 (Cth) ss 90, 99K, 99L

National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) Sch 1

Cases cited:
Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169

SimonYu v Australian Community Pharmacy Authority [2013] FCA 713

Stonehealth Pty Ltd v ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust [2020] FCAFC 188

ZAA Ventures Pty Ltd as Trustee for ZAA Investment Trust v Australian Community Pharmacy Authority [2020] FCA 1227

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 36

Date of hearing: 11 March 2021

Counsel for the Applicant: Mr T Flaherty

Solicitor for the Applicant: Stoddart Legal

Counsel for the First Respondent: Mr C Gunson SC

Solicitor for the First Respondent: Robert James Lawyers

Solicitor for the Second, Third and Fourth Respondents: Australian Government Solicitor

ORDERS

QUD 51 of 2021

BETWEEN:
ROSS DARNELL

Applicant

AND:
STONEHEALTH PTY LTD ACN 635 890 041

First Respondent

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Second Respondent

SECRETARY, DEPARTMENT OF HEALTH (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

11 MARCH 2021

THE COURT ORDERS THAT:
1.The interlocutory injunction application made by the fourth respondent by leave on 10 March 2021 be dismissed.

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: [2021] FCA 398
Decision Date: 11 March 2021

CaseChat Overview and Summary

The matter before the court involved an interlocutory application for an order under section 23 of the Federal Court Act 1976 (Cth) to prevent the Australian Community Pharmacy Authority (the Authority) from making any determination concerning applications related to certain premises. The applicant, Darnell, sought the order due to the Authority's failure to consider their application. The Authority had offered an undertaking in relation to the applicant, and a fourth respondent sought to make a similar application. The fourth respondent's application was dismissed, and the first, second, and third respondents applied for a costs order, arguing that the undertaking offered by the applicant was late. The court also considered an oral application to join the fourth respondent and the costs associated with the interlocutory applications.

The legal issues before the court included whether the interlocutory application for an injunction could be granted and if the Authority's undertaking was sufficient to warrant an injunction. The court also had to determine whether the fourth respondent's application was materially similar to the applicant's withdrawn application, and if so, whether it should be dismissed. Additionally, the court needed to decide on the costs associated with the interlocutory applications, particularly whether it was appropriate to reserve costs in the interlocutory application.

The court dismissed the interlocutory injunction application made by the fourth respondent, finding that it was materially similar to the applicant's withdrawn application. The court also found that the Authority's offer of an undertaking was sufficient, and therefore, no injunction was necessary. Regarding the costs, the court held that the first, second, and third respondents were entitled to costs for the interlocutory applications. The applicant was ordered to pay the costs of the first, second, and third respondents for the abandoned application, while the fourth respondent was ordered to pay the costs for their own application. The court granted leave for the fourth respondent to join the proceedings as a party.

The court's orders were that the fourth respondent's interlocutory injunction application be dismissed. The applicant was to pay the costs of the first, second, and third respondents for their abandoned application, and the fourth respondent was to pay the costs for their own application. The costs were to be fixed by a registrar if not agreed upon by the parties. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The interlocutory injunction application made by the fourth respondent by leave on 10 March 2021 be dismissed.

2. In respect of the interlocutory injunction application made by the applicant and abandoned, the applicant pay the costs of and incidental to that application of the first, second and third respondents, to be fixed by a registrar if not agreed.

3. In respect of the interlocutory injunction application made by the fourth respondent, the fourth respondent pay the costs of and incidental to that application of the first, second and third respondents, to be fixed by a registrar if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	QUD 51 of 2021
Judgment of:	LOGAN J
Date of judgment:	11 March 2021
Catchwords:	ADMINISTRATIVE LAW – interlocutory application for an order pursuant to s 23 of the Federal Court Act 1976 (Cth) to restrain the Australian Community Pharmacy Authority (the Authority) from making any determination regarding applications in respect of certain premises – where the Authority is not due to consider the applicant’s Application – where the Authority offers undertaking in respect of the applicant – interlocutory application for an order pursuant to s 23 to restrain the Authority from making any determination regarding applications in respect of a certain premises made by the fourth respondent – where the fourth respondent not pressing for substantive relief – where fourth respondent’s application materially similar to the first respondent’s – application dismissed PRACTICE AND PROCEDURE – oral application to join party as the fourth respondent – where interlocutory application by the applicant withdrawn – where similar interlocutory application sought to be made orally by the fourth respondent – leave granted COSTS – application by first, second and third respondents for costs order – where applicant submitted that undertaking offered was late – whether appropriate to reserve costs in interlocutory application – costs awarded to first, second and third respondents
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16 Federal Court of Australia Act 1976 (Cth) s 23 Judiciary Act 1903 (Cth) s 39B National Health Act 1953 (Cth) ss 90, 99K, 99L National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) Sch 1
Cases cited:	Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 504 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 SimonYu v Australian Community Pharmacy Authority [2013] FCA 713 Stonehealth Pty Ltd v ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust [2020] FCAFC 188 ZAA Ventures Pty Ltd as Trustee for ZAA Investment Trust v Australian Community Pharmacy Authority [2020] FCA 1227
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	36
Date of hearing:	11 March 2021
Counsel for the Applicant:	Mr T Flaherty
Solicitor for the Applicant:	Stoddart Legal
Counsel for the First Respondent:	Mr C Gunson SC
Solicitor for the First Respondent:	Robert James Lawyers
Solicitor for the Second, Third and Fourth Respondents:	Australian Government Solicitor

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	11 MARCH 2021