Deas v Issa - [2013] FCA 892

FEDERAL COURT OF AUSTRALIA
Deas v Issa [2013] FCA 892

Citation: Deas v Issa [2013] FCA 892

Appeal from: Administrative Appeals Tribunal [2013] AATA 292

Parties: SARAH DEAS, JOHN FORSYTH and ROBERT WOOD v BRYON ISSA, PAUL KRASSARIS and AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

File number: VID 456 of 2013

Judge: JESSUP J

Date of judgment: 4 September 2013

Catchwords: ADMINISTRATIVE LAW – appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – whether Tribunal erred in law in holding that first respondent had “legal right to occupy premises” within the meaning of Sch 2 of National Health (Australian Community Pharmacy Authority Rules) Determination 2011

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
National Health Act 1953 (Cth) ss 90, 99K, 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2011

Cases cited: United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1

Date of hearing: 16 August 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicants: Mr J Pizer

Solicitor for the Applicants: Meridian Lawyers

Counsel for the First and Second Respondents: Mr D Favell

Solicitor for the First and Second Respondents: Gadens Lawyers

Counsel for the Third Respondent: Mr A Dillon

Solicitor for the Third Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 456 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:
SARAH DEAS
First Applicant

JOHN FORSYTH
Second Applicant

ROBERT WOOD
Third Applicant

AND:
BRYON ISSA
First Respondent

PAUL KRASSARIS
Second Respondent

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Third Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

4 SEPTEMBER 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The parties file and serve written submissions as to costs in accordance with the following timetable:
(a)       the respondents, within 14 days;
(b)       the applicants, within a further 14 days;
(c)       the respondents in reply, if necessary, within a further 7 days.
3.The stay arising under Order 1 and the injunction arising under Order 2 made on 13 June 2013 be extended to 4.15 pm on 6 September 2013.
4.Subject to the following order, the applicants have leave to apply for a further extension of the said stay and/or of the said injunction, for a period of 14 days and, if an appeal be lodged within that period against the judgment of the court given this day, for an extension of the said stay and/or of the said injunction pending the hearing and determination of any such appeal.
5.Any such application be made on notice to the respondents by 10.00 am on 5 September 2013, be supported by the necessary affidavit and be returnable at 9.30 am on 6 September 2013.
6.In the event that the respondents or any of them intend or intends to resist such an application they serve on the applicants any affidavits upon which they or it propose or proposes to rely by 5.00 pm on 5 September 2013.

Note:Entry of orders is dealt…

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.

Continue reading Deas v Issa

Details

AGLC: Deas v Issa [2013] FCA 892
Case: [2013] FCA 892
Decision Date

CaseChat Overview and Summary

The case of Deas v Issa [2013] FCA 892 involved an appeal from a decision of the Administrative Appeals Tribunal (AAT) that set aside a decision made by the Australian Community Pharmacy Authority (the Authority) to not approve an application by Bryon Issa and Paul Krassaris to supply pharmaceutical benefits from premises in Myrtleford. The applicants, Sarah Deas, John Forsyth, and Robert Wood, who are proprietors of an existing pharmacy in Myrtleford, appealed the AAT's decision, arguing that the Tribunal erred in law by holding that the respondents had a "legal right to occupy premises" as required by Schedule 2 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011. The key legal issue was whether the respondents had a legal right to occupy the premises on or after the day they made their application under section 90 of the National Health Act 1953 (Cth). The Tribunal had found that the respondents had a legal right to occupy the premises on the day their application was made, based on an enforceable agreement to lease the premises. The applicants argued that Issa did not have a right to occupy the premises because he had to take enforcement action to obtain that right.

Justice Jessup held that the Tribunal's conclusion that the respondents had a legal right to occupy the premises on the day their application was made was correct. The court found that the letter of intention to lease was an enforceable agreement between the landlord and Krassaris, on behalf of both respondents, and that Issa, as a prospective partner of Krassaris, had a legal right to occupy the premises. The court relied on the High Court decision in United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1, which held that a fiduciary relationship can exist between prospective partners before a formal agreement is executed. The court rejected the applicants' argument that Issa's right to occupy the premises was not a "legal right" because it would have to be enforced through legal action. The court held that the term "legal right" in the Rules referred to the whole body of law that would recognise the existence of a right to occupy, including equitable rights. The appeal was dismissed, and the applicants were ordered to file written submissions on costs.

Orders