Darnell v Stonehealth Pty Ltd (No 3)
[2021] FCA 743
•9 June 2021
FEDERAL COURT OF AUSTRALIA
Darnell v Stonehealth Pty Ltd (No 3) [2021] FCA 743
File number: QUD 51 of 2021 Judgment of: LOGAN J Date of judgment: 9 June 2021 Catchwords: PRACTICE AND PROCEDURE – application to further amend originating application – where amendment sought would allege fraud on behalf of the first respondent – where amendment would not disturb hearing dates – application granted – application for leave to issue subpoenas – where subpoenas could not have been issued without proposed amendment to originating application – leave granted Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 9 June 2021 Counsel for the Applicant: Mr T Flaherty Solicitor for the Applicant: Stoddart Legal Counsel for the First Respondent: Mr C Gunson SC with Ms J Sawyer Solicitor for the First Respondent: Robert James Lawyers Solicitor for the Second and Third 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
Third Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.The applicant has leave to amend the originating application in terms of the draft annexed to the affidavit of Mr Stoddart filed on 7 June 2021.
2.The originating application as so amended must be filed and served by close of business today.
3.The applicant must file and serve by close of business on Monday, 14 June 2021 such further affidavit evidence, if any, together with his outline of submissions, with the existing order in respect of the filing of an outline of submission being varied accordingly.
4.The first respondent has leave to file and serve not later than close of business on Monday, 21 June 2021 such affidavit evidence in reply, if any, as it may be advised together with its outline of submissions, with the existing order in respect of the filing of that outline being varied accordingly.
5.Leave be granted for the issuing of subpoenas, drafts of which are annexed to the affidavits of Mr Stoddart filed on 7 June 2021 and 9 June 2021, subject to the deletion of paragraphs (c) and (d) in respect of the schedule to the subpoena directed to Realistic Solutions Pty Ltd ACN 061492537 trading as Ann Mihulka & Associates.
6.Those subpoenas be issued forthwith and returned on Wednesday 16 June 2021.
7.The first respondent having made an application in respect of the costs of and incidental to today’s hearing, that application by consent be adjourned for consideration in conjunction with the final determination of the proceedings.
8.The applicant must file and serve by close of business on Friday, 18 June 2021 a tender bundle comprising documents produced pursuant to subpoena and which are alleged to be relevant.
9.The second and third respondents be granted an extension of time for the filing of the application book to 16 June 2021. For the avoidance of doubt, there is no need for that application book to include any material that may be filed as a result of the orders made today.
10.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Application has been made on behalf of the applicant further to amend the originating application in a way which, in effect, would allege fraud on the part of the first respondent, in conjunction with an emanation of Coles, in relation to an opening of a supermarket at the Flagstone premises on 20 March 2020, and the making of consequential representations said to be false, and knowingly so, on behalf of the first respondent to the Australian Community Pharmacy Authority. It goes without saying, that such an allegation is a grave one, and not to be made without some apprehended evidentiary foundation. I can see how, quite properly, until the return of subpoenas already issued in the proceeding, the applicant did not consider it appropriate to make any such allegation.
This is a commercial case, and one in which both the applicant and the first respondent have obvious commercial reasons in expedition. Reacting to that, on 11 March 2021 I set the case down for hearing as soon as possible in the circumstances, which was, and is, for two days commencing on 24 June 2021.
The real effect of s 37M and s 37N, of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), in my view, is to declare a position which one might have thought already attended the conduct of case-managed litigation in this Court. Indeed, and with great respect, one might have thought that Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 was in many ways just a facts case, but it was not so viewed by many in the profession, and amendments, such as are now found in s 37M and s 37N of the Federal Court Act, were reactive to such a view.
The High Court’s judgment in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, makes it pellucid, at least to those who may have had earlier a different view, that case management considerations are relevant in relation to the conduct of litigation, and that an offer for payment of costs, where there are elapses in compliance, is not a palliative in all cases. There are public interests abroad, in relation to the exercise of judicial power, which necessarily include reasonable access, by as many who would seek to have access as possible, to limited judicial resources. So non-compliance does not just resonate in relation to another party, or parties, to litigation. It, also, resonates in terms of an opportunity cost, in respect of the limited time available for the exercise of judicial power in respect of other cases where that exercise is sought.
When persons come to court they are not consuming a service; they are being governed: see, as to this, observations made by Keane J when speaking extra-judicially: The Hon P.A. Keane, Access to Justice and other Shibboleths (Speech delivered to the Judicial Conference of Australian Colloquium, Melbourne, 10 October 2009).
There is a singular public interest in that type of governance being timely and available to those who seek to have such governance where consensual resolution is not possible.
All of these considerations intrude as to what orders are just today.
The first respondent’s submission, as to a somewhat leisurely approach on the part of the applicant to the conduct of this litigation, is well-made. Equally, I can see how there is, now, a basis upon which it could occur responsibly to legal practitioners to seek to amend their originating application to allege, as proposed ground 7 does, a particular case of fraud in public law. I can, also, see how the subpoenas’ leave to issue, which is sought today, could not have been sought beforehand in the absence of a pleading which raised such an allegation.
There is a need to ensure procedural fairness to the first respondent and, of course, to other respondents, if they were disposed to alter an otherwise submitting stance.
Were I of the view that the proposed amendment would disturb the existing hearing dates in a way that was antithetical to a just allocation of judicial resources, I would refuse the amendment and also the leave to issue subpoenas. I would also refuse that leave if I considered that it was just procedurally unfair to the first respondent, taking into account its legitimate commercial interests in retaining the hearing dates.
In my view, it is just possible to achieve both a trial in respect of issues which the applicant, I can see, has a basis for raising, as well as provide procedural fairness to the first respondent and service its commercial interest in the already fixed hearing dates not being vacated.
That view, of course, may well have to change in light of subsequent events, but at the moment, the only additional affidavit evidence that is sought to be adduced for the applicant is said to be a brief affidavit and one which, at least at present, the first respondent apprehends it is possible to meet while still retaining the existing hearing dates, if it is advised that affidavit evidence in response should be filed.
As to the subpoenas that are proposed to be issued, and as I raised with counsel for the applicant, it is not at all apparent to me, even adjectivally, why Realistic Solutions Services Pty Ltd, trading as Ann Mihulka & Associates, which company is said to have acted for the first respondent, should be required to produce communications with the Secretary to the Department of Health or the Australian Community Pharmacy Authority. I make that observation because there has already been filed the material before the decision-maker. The subpoena, in effect, has the quality of seeking to contradict the completeness of what has been disclosed by officers of the Commonwealth. Upon that being raised with counsel for the applicant, there was no particular objection to the excision of the relevant paragraphs in the schedule. Namely, paragraphs (c) and (d). Subject to this, and upon the basis of leave further to amend the originating application being granted, what is sought in the subpoenas for production strikes me as adjectivally relevant.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 2 July 2021
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