Issa v The Australian Pharmacy Community Authority - [2012] FCA 36

FEDERAL COURT OF AUSTRALIA
Issa v The Australian Pharmacy Community Authority [2012] FCA 36

Citation: Issa v The Australian Pharmacy Community Authority [2012] FCA 36

Parties: BRYON ISSA and PAUL KRASSARIS v THE AUSTRALIAN PHARMACY COMMUNITY AUTHORITY

File number: NSD 55 of 2012

Judge: JACOBSON J

Date of judgment: 19 January 2012

Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 41
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)

Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Commonwealth v Horsfall (2010) 185 FCR 66
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Date of hearing: 19 January 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Counsel for the First and Second Applicants: Mr H Woods

Solicitor for the First and Second Applicants: Gadens Lawyers

Solicitor for the Respondent: Mr N Gouliaditis of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 55 of 2012

BETWEEN:
BRYON ISSA
First Applicant

PAUL KRASSARIS
Second Applicant

AND:
THE AUSTRALIAN PHARMACY COMMUNITY AUTHORITY
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

19 JANUARY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Upon the Applicant by its counsel giving the usual undertaking as to damages, the First Respondent be restrained until the further order from determining or making any recommendation in relation to any application in relation to the grant of approval under s 90 of the National Health Act 1953 (Cth) with respect to premises located within a radial distance of 10 kilometres of 151 Myrtle Street, Mylteford, Victoria 3737 until further order or until the determination of the Applicant’s proceedings in the Administrative Appeals Tribunal.
2.The parties have liberty to apply on seven days’ notice

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 55 of 2012

BETWEEN:
BRYON ISSA
First Applicant

PAUL KRASSARIS
Second Applicant

AND:
THE AUSTRALIAN PHARMACY COMMUNITY AUTHORITY
Respondent

JUDGE:

JACOBSON J

DATE:

19 JANUARY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(Revised from transcript)

The Applicants (collectively “Mr Issa”) seek an interlocutory injunction to restrain the Respondent (the “Authority”) from making a recommendation under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth).
Mr Issa is a pharmacist who wants to open a pharmacy in Myrtle Street, Myrtleford, Victoria (the “first pharmacy”).
Mr Issa applied to the Authority for permission to operate a pharmacy at those premises under the Pharmaceutical Benefits Scheme, but the application was rejected by the Authority. Mr Issa has a right of review by the Administrative Appeals Tribunal (the “Tribunal”) of the determination of the Authority and he has filed such an application. However, in the meantime, a second pharmacy (the “second pharmacy”) has applied to the Authority for approval of its pharmacy which would be located within 10 kilometres of the first pharmacy. That application is due to be…

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: [2012] FCA 36
Decision Date: 19 January 2012

CaseChat Overview and Summary

In the case of Issa v The Australian Pharmacy Community Authority, the applicant, Issa, sought an injunction against the Australian Pharmacy Community Authority (the first respondent) and the Minister for Health (the second respondent) to restrain the first respondent from making any recommendation in relation to applications for the approval of premises located within a ten-kilometre radius of a specific address in Mylteford, Victoria. The relief sought was based on Issa's contention that the first respondent had failed to take into account relevant considerations in the approval process, in breach of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and that the first respondent's decision-making process was otherwise flawed. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a sufficient case to warrant the grant of interlocutory relief. The Court had to determine whether the applicant had demonstrated that it was likely that the first respondent's actions would result in a breach of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and whether the balance of convenience favoured the grant of relief. The Court also had to consider whether there were any factors that should be taken into account in deciding whether to grant the injunction.

In determining the application, the Court found that the applicant had demonstrated a sufficient case to warrant the grant of interlocutory relief. The Court held that the applicant had established a likelihood that the first respondent's actions would result in a breach of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and that the balance of convenience favoured the grant of relief. The Court found that the applicant had demonstrated that it would suffer significant harm if the injunction was not granted, and that the first respondent's actions would not cause significant harm to any other party. The Court also found that there were no factors that should be taken into account in deciding whether to grant the injunction that would outweigh the balance of convenience in favour of the applicant. The Court therefore granted the relief sought by the applicant, subject to the applicant giving the usual undertaking as to damages.

The Court's orders included a restraint on the first respondent from making any recommendation in relation to applications for approval of premises within a ten-kilometre radius of a specific address in Mylteford, Victoria, until further order or until the determination of the applicant’s proceedings in the Administrative Appeals Tribunal. The Court also granted the parties liberty to apply on seven days’ notice.

Orders

Orders of the court

1. Upon the Applicant by its counsel giving the usual undertaking as to damages, the First Respondent be restrained until the further order from determining or making any recommendation in relation to any application in relation to the grant of approval under s 90 of the National Health Act 1953 (Cth) with respect to premises located within a radial distance of 10 kilometres of 151 Myrtle Street, Mylteford, Victoria 3737 until further order or until the determination of the Applicant’s proceedings in the Administrative Appeals Tribunal.

2. The parties have liberty to apply on seven days’ notice

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.

Citation:		Issa v The Australian Pharmacy Community Authority [2012] FCA 36
Parties:		BRYON ISSA and PAUL KRASSARIS v THE AUSTRALIAN PHARMACY COMMUNITY AUTHORITY
File number:		NSD 55 of 2012
Judge:		JACOBSON J
Date of judgment:		19 January 2012
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth), s 41 National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)
Cases cited:		Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Commonwealth v Horsfall (2010) 185 FCR 66 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Date of hearing:	19 January 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the First and Second Applicants:	Mr H Woods
Solicitor for the First and Second Applicants:	Gadens Lawyers
Solicitor for the Respondent:	Mr N Gouliaditis of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 55 of 2012

JUDGE:	JACOBSON J
DATE OF ORDER:	19 JANUARY 2012
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	19 JANUARY 2012
PLACE:	SYDNEY