Freedom Pharmaceutical Pty Ltd v Minister for Health (No 2)

Freedom Pharmaceutical Pty Ltd brought an application for judicial review of a decision of the Minister for Health to approve the supply of pharmaceutical benefits at premises operated by Ms Rouchdi under section 90A(2) of the National Health Act 1953 (Cth). The matter was dismissed by the Court and the parties were directed to make submissions as to costs. The Minister sought an order that costs follow the event and that Freedom Pharmaceutical Pty Ltd pay the costs of the Minister. Freedom Pharmaceutical Pty Ltd submitted that the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 applied and that there should be no order for costs.

The Court considered the principle in Hardiman and whether it could apply to the Minister’s conduct in the proceedings. The Court noted that the Minister had taken an active role in the proceedings and had become a protagonist despite the existence of a natural protagonist in the form of Ms Rouchdi, who had been properly joined to the proceedings. The Court found that the Minister was obliged to assume a passive role and that Freedom Pharmaceutical Pty Ltd should not have to pay the Minister’s costs of placing himself in the position of a protagonist.

The Court ordered that Freedom Pharmaceutical Pty Ltd pay the Minister’s costs of the proceedings. The Court noted that section 43 of the Federal Court of Australia Act 1976 (Cth) conferred on the Court a broad discretion regarding the making of costs orders. The Court found that the Minister’s active role in the proceedings justified an order that costs follow the event.