Hope v Australian Community Pharmacy Authority - [2016] FCA 1597

FEDERAL COURT OF AUSTRALIA
Hope v Australian Community Pharmacy Authority [2016] FCA 1597

File number(s): TAD 53 of 2016

Judge(s): KERR J

Date of judgment: 22 December 2016

Catchwords: ADMINISTRATIVE LAW – continuation of interlocutory injunction – objection to new pharmacy – approval of new pharmacy location – meaning of “small shopping centre” – meaning of “in” a shopping centre – interpretation of rules for pharmacy approval

Legislation:
Administrative Decisions (Judicial Review) Act 1977

Federal Court of Australia Act1976

Judiciary Act 1903

National Health Act 1953

Federal Court Rules 2011

National Health (Australian Community Pharmacy Authority Rules) Determination 2011

National Health (Australian Community Pharmacy Authority Rules) Determination 2011 Explanatory Statement

Usual Undertaking as to Damages Practice Note (GPN UNDR)

Cases cited:
Alexander v Australian Community Pharmacy Authority [2010] FCA 189

Assaparin v Australian Community Pharmacy Authority [2016] FCAFC 9

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618

Esso Australia Resources Ltd v Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR

Hallgath v Australian Community Pharmacy Authority [2011] FCA 1062

Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995; (2013) 215 FCR 452

Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; (2015) 230 FCR 243

Watson v Australian Community Pharmacy Authority [2012] FCAFC 142; (2012) 206 FCR 365

Yu v Australian Community Pharmacy Authority [2013] FCA 713

Date of hearing: 16 December 2016

Registry: Tasmania

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 123

Counsel for the Applicants: Mr A Walker

Solicitor for the Applicants: Robert James Lawyers

Solicitor for the First and Second Respondents: Mr B Dean of Australian Government Solicitor

Counsel for the Third Respondent: Ms J Sorbello

Solicitor for the Third Respondent: Bennett & Philp Lawyers

ORDERS

TAD 53 of 2016

BETWEEN:

GEOFFREY & ELIZABETH HOPE TRADING AS ELIZABETH HOPE PRICELINE PHARMACY
First Applicant

ROHAN TARGETT TRADING AS BRIGHTON PHARMACY
Second Applicant

AND:
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

SECRETARY OF THE DEPARTMENT OF HEALTH
Second Respondent

SLOPEN MAIN PTY LTD AS TRUSTEE FOR SLOPEN MAIN DISCRETIONARY TRUST
Third Respondent

JUDGE:

KERR J

DATE OF ORDER:

22 DECEMBER 2016

THE COURT ORDERS THAT:
1.Upon each of the Applicants giving the usual undertaking as to damages Orders 1(a) and (b) made on 2 December 2016 remain in force until judgment in these proceedings or until further Order.
2.The applicants file and serve an amended statement of claim by 10 January 2017.
3.The respondents file and serve a defence to the amended statement of claim by 24 January 2017.
4.The parties file any Notices to Produce by no later than 4:00pm 30 January 2017.
5.The parties file any subpoenas by no later than 4:00pm 30 January 2017.
6.The parties file any further Affidavit material, including expert evidence, by 6 February 2017.
7.The parties file an agreed list of facts and issues…

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: [2016] FCA 1597
Decision Date: 22 December 2016

CaseChat Overview and Summary

Hope v Australian Community Pharmacy Authority was a matter heard in the Federal Court of Australia, concerning an interlocutory application by two pharmacy owners to continue an existing interlocutory injunction preventing the Australian Community Pharmacy Authority from approving a new pharmacy location. The applicants sought to prevent the approval of a new pharmacy by the Authority on the basis that it would breach certain rules governing pharmacy locations. The dispute centred on the interpretation of these rules, specifically the definitions of "small shopping centre" and "in" a shopping centre.
The primary legal issue the court had to address was the interpretation of the rules governing pharmacy locations, specifically the definitions of "small shopping centre" and "in" a shopping centre. The applicants argued that the new pharmacy location was not within a "small shopping centre" as defined by the rules, while the respondents contended that the new location was within the geographical boundaries of a "small shopping centre" as defined by the rules. The court had to determine the correct interpretation of the rules and apply them to the facts of the case.
In delivering judgment, the court held that the correct interpretation of the rules was that a "small shopping centre" is a geographical area that is managed as a single entity, and that a pharmacy is "in" a shopping centre if it is located within the geographical boundaries of that shopping centre. The court found that the new pharmacy location was not within the geographical boundaries of the relevant "small shopping centre" as defined by the rules, and therefore the interlocutory injunction should be continued. The court also made several procedural orders to manage the proceedings, including ordering the applicants to file an amended statement of claim, and setting a timetable for the filing of further evidence and submissions.
The court's decision was significant as it provided clarity on the interpretation of the rules governing pharmacy locations, and confirmed the applicants' right to continue the interlocutory injunction preventing the approval of the new pharmacy location. The case highlights the importance of precise drafting of rules and the need for careful interpretation of statutory language in administrative law proceedings.

Orders

Orders of the court

1. Upon each of the Applicants giving the usual undertaking as to damages Orders 1(a) and (b) made on 2 December 2016 remain in force until judgment in these proceedings or until further Order.

2. The applicants file and serve an amended statement of claim by 10 January 2017.

3. The respondents file and serve a defence to the amended statement of claim by 24 January 2017.

4. The parties file any Notices to Produce by no later than 4:00pm 30 January 2017.

5. The parties file any subpoenas by no later than 4:00pm 30 January 2017.

6. The parties file any further Affidavit material, including expert evidence, by 6 February 2017.

7. The parties file an agreed list of facts and issues in dispute by 17 February 2017.

8. The parties file a final witness list by 17 February 2017.

9. The parties file written submissions by 23 February 2017.

10. The hearing of the matter listed for 31 January 2017 and 1 February 2017 be vacated.

11. The hearing be listed for 27 and 28 February 2017 before Kerr J.

12. Costs reserved.

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

The affidavits as read are the evidence in these proceedings.Assessment of the evidence It is unhelpful in interlocutory proceedings, particularly given no deponent has been required to be available for cross examination, for the Court to do otherwise than to attempt to form a conditional and preliminary view of the strengths of the respective cases. What then can be concluded, at least on an impressionistic basis (ie untested by cross examination), in respect of the evidence before the Court? Characterisation of the premises It soon became plain that there was a fundamental question of characterisation, regarding what is properly to be regarded as the geographical boundaries of the relevant “small shopping centre”, which divides the parties. As is clear from the evidence of Mr Hope, and is implicit in Mr Targett’s letter, the Applicants had proceeded on the unstated assumption that the relevant “small shopping centre” is the Cove Hill Shopping Centre as bounded by Hurst Rd. It was on that basis that Mr Hope deposed that the Cove Hill Shopping Centre has far fewer than the required number of commercial establishments than is required by the Rules. Ms Sorbello did not dispute that within the area that Mr Hope referred to as the “small shopping centre” there would be fewer than the required number of commercial establishments. However she submitted that while on a separate title, a number of shops on the other side of Hurst Rd were properly to be included as falling within the legal meaning of the expression “small shopping centre.” Ms Sorbello submitted that the Rules contained no requirement of proximity. To establish the factual premises of that submission Ms Sorbello referred to the affidavit of Mr Hannan (15 December 2016), and the annexures thereto (pp 99-100), in particular the Statutory Declaration of Ms Jillian Ann Bowkett, dated 21 April 2016. In that declaration Ms Bowkett states at [8] and [14]:The Centre [Cove Hill Shopping Centre previously known as the Cove Hill Fair Shopping Centre] consists of two lots being Lot 1 on Diagram 34163 and Lot 1 on Plan 164326 which are both owned by the Lessor and managed by Kalis Property Management and promoted as one shopping centre known as “Cove Hill Shopping Centre [”]. …The management of the Centre is under single management…[it] includes the control of all service providers, marketing, administration, security, landscaping, maintenance and cleaning of the Centre, promotion of the Centre, trading hours, pedestrian and vehicular access and signage within the Centre. Thus Ms Sorbello submitted that the Court must proceed on the basis that the Cove Hill Shopping Centre necessarily also includes the commercial establishments on the other side of Hurst Rd applying the specific definition of a “small shopping centre” provided for in the Rules. The definition is set out at [23] above. Mr Walker in response maintained the submission that some notion of proximity is implicit in the notion of a “small shopping centre”. He submitted that properly characterised there were two distinct and separate shopping centres, one on each lot and separated by a public road, albeit jointly managed.

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(s):	TAD 53 of 2016
Judge(s):	KERR J
Date of judgment:	22 December 2016
Catchwords:	ADMINISTRATIVE LAW – continuation of interlocutory injunction – objection to new pharmacy – approval of new pharmacy location – meaning of “small shopping centre” – meaning of “in” a shopping centre – interpretation of rules for pharmacy approval
Legislation:	Administrative Decisions (Judicial Review) Act 1977 Federal Court of Australia Act1976 Judiciary Act 1903 National Health Act 1953 Federal Court Rules 2011 National Health (Australian Community Pharmacy Authority Rules) Determination 2011 National Health (Australian Community Pharmacy Authority Rules) Determination 2011 Explanatory Statement Usual Undertaking as to Damages Practice Note (GPN UNDR)
Cases cited:	Alexander v Australian Community Pharmacy Authority [2010] FCA 189 Assaparin v Australian Community Pharmacy Authority [2016] FCAFC 9 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Esso Australia Resources Ltd v Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR Hallgath v Australian Community Pharmacy Authority [2011] FCA 1062 Kastrinakis v Australian Community Pharmacy Authority [2013] FCA 995; (2013) 215 FCR 452 Walkerden v Wodonga Pharmacy Pty Ltd [2015] FCA 273; (2015) 230 FCR 243 Watson v Australian Community Pharmacy Authority [2012] FCAFC 142; (2012) 206 FCR 365 Yu v Australian Community Pharmacy Authority [2013] FCA 713
Date of hearing:	16 December 2016
Registry:	Tasmania
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	123
Counsel for the Applicants:	Mr A Walker
Solicitor for the Applicants:	Robert James Lawyers
Solicitor for the First and Second Respondents:	Mr B Dean of Australian Government Solicitor
Counsel for the Third Respondent:	Ms J Sorbello
Solicitor for the Third Respondent:	Bennett & Philp Lawyers