Nguyen v ACPA - [2008] FMCA 623

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGUYEN & ANOR v ACPA & ANOR

[2008] FMCA 623

PRACTICES & PROCEDURE – Adjournment – consideration of relevant factors.

PRACTICE & PROCEDURE – Application to discontinue.

Federal Magistrates Act, 1999 (Cth) ss.3, 42
Federal Magistrates Court Rules, 2001 (Cth), rr.1.03, 13.01
National Health Act, 1953 (Cth) s.135A
Privacy Act, 1988 (Cth)

Genovese v BGC Construction Pty Ltd (No.2) [2007] FMCA 601
State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Mahmoud v The Owners Corporation Strata Plan 811(No. 2) [2006] FMCA 1711
Myers v Myers [1969] WAR 19

First Applicant:

AMY HOA THUY TIEN NGUYEN

Second Applicant:

JODIE DUONG

First Respondent:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

Second Respondent:

SHAFALI GROVER

File Number:

PEG 31 of 2008

Judgment of:

Lucev FM

Hearing date:

1 May 2008

Date of Last Submission:

1 May 2008

Delivered at:

Perth

Delivered on:

1 May 2008

REPRESENTATION

Counsel for the Applicants:

Mr M N Solomon

Solicitors for the Applicants:

Fiocco’s Lawyers

Counsel for the First Respondent:

Mr P Macliver

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Mr J D Allanson SC

Solicitors for the Second Respondent:

Rotstein Lockwood Reddy

ORDERS

That the Applicants’ application in the case to adjourn the hearing of the application be dismissed;
That the Applicants’ further application to discontinue the application be dismissed;
That the application be dismissed;
That the Applicants pay the First and Second Respondents’ costs of the application and the application in a case which, if not agreed, are to be assessed by a Registrar of this Court in accordance with Schedule 1 of the Court’s rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 31 of 2008

AMY HOA THUY TIEN NGUYEN

First Applicant

JODIE DUONG

Second Applicant

And

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY

First Respondent

SHAFALI GROVER
Second Respondent

REASONS FOR JUDGMENT
(EX TEMPORE EDITED FROM THE TRANSCRIPT)

Application

On 12 February 2008 an application was filed with the Court to review a decision of the First Respondent. That decision was in fact a recommendation to the Secretary of the Department of Health and Ageing to grant approval to the Second Respondent to supply pharmaceutical benefits from premises in Albany Highway in Cannington. It is unnecessary to set out the grounds for the original application in detail for it is now conceded by the Applicants that those grounds cannot be made out if the hearing were to proceed today. It is sufficient to note that those grounds were heavily reliant upon an allegation that the Second Respondent had no legal right to occupy the premises.
On 7 March 2008 the Court made orders. Those orders were made by consent and included orders that:
a)the First Respondent shall file and serve a list of documents, and file an indexed court book;
b)that the Respondents file and serve affidavits by 9 April 2008;
c)that the Applicants file and serve any reply and affidavits in response by 23 April 2008; and
d)that the hearing be held on 1 May 2008.
On 28 April 2008, less than three days before the listed hearing, the Applicants made an application in the case, seeking orders which included:
a)that the hearing be adjourned until further order pending determination by the Secretary of the Department of Health and Ageing as to whether to approve the Second Respondent’s application to supply pharmaceutical benefits from the premises; and
b)that costs be reserved.
In relation to the grounds for the application to adjourn (the application in the case), the Applicants conceded that there were insufficient grounds to:
a)make out grounds for review of the decision of the First Respondent; or
b)require production of documents relevant to the challenge.
The Applicants acknowledge that notwithstanding:
a)present concerns and uncertainty about the basis for the First Respondent’s determination that the Second Respondent had a legal right to occupy the premises for the purposes of the present applications; and
b)the fact that they had written to the Secretary concerning the exercise of his discretion as to whether or not to approve the First Respondent’s recommendation to him, that the Secretary may nevertheless grant approval of the application notwithstanding that the ordinary precondition for doing so, the First Respondent’s positive recommendation, might have been liable to be set aside.
The Applicants further contend that the Applicants ought not to be shut out of the prospect of a rejuvenated application based on all the relevant circumstances, and in particular, the Secretary’s ability to inquire or find out or have produced evidence that might sustain what is described as the Applicants’ apprehension that there is no evidence of a legal right to occupy the premises.
It is on that basis that the Applicants seek to maintain their challenge to the First Respondent’s decision pending the outcome of any inquiry that may be undertaken by the Secretary in the course of the Secretary’s consideration of the application for approval. Therefore, the Applicants seek or suggest that the appropriate course is to adjourn these proceedings pending any inquiry or decision undertaken by the Secretary. It is noteworthy that there is no application at all to amend the grounds of the application.
In determining applications for adjournment this Court is required to afford justice to and balance the prejudice for all parties.[1] The Court is also obliged to manage cases in the Court’s list appropriately but case management does not override any manifest prejudice.[2] However, s.3 of the Federal Magistrates Act[3] and r.1.03 of the Federal Magistrates Court Rules[4] require the just, efficient and economical resolution of proceedings in this Court. They require the Court to proceed informally in the exercise of the Commonwealth’s judicial power but in a streamlined way and in a way which provides that the parties must avoid undue delay and expense.
[1] Myers v Myers [1969] WAR 19; Mahmoud v The Owners Corporation Strata Plan 811 (No. 2) [2006] FMCA 1711.
[2] State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 and 155 per Dawson, Gaudron and McHugh JJ, at 166 per Kirby J (“JL Holdings”).
[3] “FM Act”.
[4] “FMC Rules”.
In this case, it is suggested that the proceedings be adjourned pending the Secretary’s decision. That involves a somewhat circular proposition because the evidence discloses that the Secretary has delayed making a decision pending the outcome of the substantive application.
It is the Court’s view that were the proceedings to be adjourned the Secretary’s position, if not invidious, might be somewhat uncomfortable and the Court, in considering the adjournment application, is entitled to have regard to the fact that an administrative decision-maker should be able to make those types of decisions in an environment of as much certainty as is possible. Were the Court to accede to the application to adjourn pending the Secretary’s decision, that decision would involve further delay and further expense in circumstances where the Applicants acknowledge that the Secretary may approve the supply of pharmaceutical benefits from the premises notwithstanding the First Respondent’s existing recommendation.
Secondly, it involves, in the Court’s view, an abdication of this Court’s role to speedily determine applications and especially so in a case where the Applicants admit that their application cannot succeed, as presently framed, and in respect of which there is no application to vary. The fact that there are no grounds on which this application can succeed as presently framed is conceded and in the Court’s view is fatal to the application for adjournment. It is simply not proper, in the Court’s view, that an application which is otherwise dead should be allowed to be adjourned on the basis that it might at some future point in time be revived. That is so particularly in circumstances where, on the basis of the submissions that have been made, it is fair to say that it is put on the basis that the Secretary’s inquiry “might” produce evidence to sustain the application and there is “an apprehension”, and it is put no higher than that, that further investigation might reveal a lack of a legal right to occupy on the part of the Second Respondent.
The Court also notes as a consideration relevant to the question of adjournment that if the Secretary does make a decision that there are alternative remedies seemingly available on the basis of the submissions put to the Court today, although those remedies may not be as efficacious as the current remedy is perceived to be. Nevertheless, they are remedies and to hold the matter over in circumstances where there would be other remedies available if the Secretary is to make a decision is simply to give the Applicants a choice of action or a choice of forum in circumstances where the application is otherwise dead.
There is, as already indicated, no application to amend either specifically or generally. That combined with the submission that effectively the application ought to be adjourned indefinitely to a time after the Secretary has made her decision, assuming that the Secretary is prepared to do so, and to a time after any appeal from the Secretary’s decision has been determined, if there is an appeal, is inconsistent with the Court’s obligations to determine matters speedily and efficiently and with the obligation of the parties to avoid undue expense and delay.
It is also inconsistent with the principles of case management applied in this Court, which have regard to the principles expressed by the High Court in JL Holdings, and also the specific legislative objectives set out in ss.3 and 42 of the FM Act and r.1.03 of the FMC Rules, which especially provide that proceedings ought not be unduly protracted. The Applicants also suggest that if the application is not adjourned they will seek leave to discontinue the proceedings. That, for the purposes of the adjournment application is, in my view, a wholly irrelevant consideration especially in circumstances where no application for leave to discontinue was filed prior to the proceedings today.
With respect to the issue of prejudice there does not appear to be, on the basis of the evidence or the submissions made today, any prejudice able to be properly raised by the Applicants. By contrast the Second Respondent does suffer prejudice by the ongoing delay in the finalisation of the application and the ability to recoup the pharmaceutical benefits subsidies, the latter of which was quite properly conceded to be a prejudice by Counsel for the Applicants. In all the circumstances it seems to the Court that all of the factors which fall for consideration weigh against the granting of the application for adjournment. In those circumstances the application in the case for adjournment of these proceedings will be dismissed.
With respect to the application to discontinue which the Court granted leave to be instituted orally today, it is relevant to note, however, that there was no application for leave to discontinue under r.13.01 of the FMC Rules prior to today, not even in the alternative to the adjournment application which was made on 28 April 2008. It is fair to say on the evidence that it has been evident for some time, and ought to have been evident to the applicants, that the current application had no prospects of success. That is evident from the correspondence post-dating 9 and 10 April 2008 and is consistent with the affidavit of the First Applicant who gives evidence with respect to the advice sought from Senior Counsel and the advice that she had been given about the application being untenable or being redundant, that advice being given during the course of the week, it would seem, from 10 to 17 April 2008.
Suffice to say, that the application for discontinuance, if it was to have been made, ought to have been made prior to today and in those circumstances the application for leave to discontinue the proceedings is also dismissed.
Counsel for the Applicants confirmed at the end of his submissions in reply that the application proper is not pressed if the adjournment application is dismissed. In those circumstances it is appropriate that the application itself also be dismissed.
That leaves the question of costs to be determined. At the outset the Court makes two commonplace observations:
a)it is the usual rule that costs follow the event; and
b)that the Court has a wide discretion as to costs.
In the circumstances of this case the Applicants have been wholly unsuccessful both in relation to the substantive application and to the application in the case for an adjournment. Their substantive application, it is conceded, has grounds which are wholly untenable and as the Court has found, the application for adjournment was also based on grounds which were not, at the end of the day, successful. The Court notes that the application is arguably brought on grounds said to be speculative. That in some respects, is correct. However, in cases of this nature it might well be the case that speculative cases are sometimes brought by reason of the nature of the matters which are the subject of review, and the nature of the documents and the statements of reasons that are available. That will not always be the case, but the Court does consider that there may be circumstances, and this case may be an example of them, where someone might start an AD(JR) Act application on grounds which could be characterised as speculative. The Court accepts that the Applicants operated in initiating the applications on a belief or an assumption that they thought was correct, and assuming for present purposes the Applicants’ contention that that is not unusual in litigation, it is not of itself and does not amount to a reason why costs against the unsuccessful litigant ought not be granted. It does seem to the Court that the original basis for the application was, as already said, possibly speculative, and in circumstances where ultimately it has been unsuccessful, and notwithstanding what would appear to be the beliefs or assumptions genuinely held by the Applicants, it is not a ground for not awarding costs when the application is unsuccessful at the end of the day.
The Applicants did seek documents from the First and Second Respondents, which the First and Second Respondents refused to produce prior to order of this Court on 7 March 2008, and which the Applicants assert would have led to an earlier resolution of these proceedings. The First Respondent did not release documents without order of this court because of Privacy Act concerns and the Court notes also the provisions of s.135A of the National Health Act and in particular s.135A(2), which appears to be very restrictive in its terms providing for the provision of information to the Court, not necessarily between the parties themselves. That, with respect, would appear to be a complete defence to the First Respondent’s position of refusing to provide documents in advance of this Court’s order of 7 March 2008.
The Second Respondent did not release documents because it says that they were commercial documents which involved other parties and because it perceived the application to be entirely speculative and that it had no legal obligation to do so. The Second Respondent’s position is understandable, but probably did not contribute to an early resolution of the issues, nor, however, did the Applicants. They threatened pre-action discovery, but did not follow through. They did nothing about discovery post initiating the application. The Second Respondent says that the former was a consequence of time lines and the time of the year precluding a timely resolution of any such application. The Applicants say that in respect to the latter they had little choice but to acquiesce to the Second Respondent’s demands concerning discovery.
Neither is an excuse, in the Court’s view, for a lack of action. This Court was available throughout January 2008 to deal with matters and given the time of the year it probably had more time rather than less to deal with any urgent applications that were made to it. The Applicant took no proper steps to obtain either pre-action discovery or discovery post its correspondence with the First and Second Respondents seeking to obtain the relevant documents.
The Court also notes that the order of 7 March 2008 itself dealt with the question of documents by consent and that there was no contest with respect to the issue of documents at that stage. The Court accepts that since they became aware of the relevant documents after they were produced by order of this Court, the Applicants have acted in a timely and candid manner in their dealings with the First and Second Respondents. That is accepted, for example, in good measure by Counsel for the Second Respondent in submissions to the Court today, particularly with respect to the substance of discussions that he had had with Counsel for the Applicants, which have precluded the necessity for the Second Respondent’s Counsel to do work in preparation for any argument on the substantive application today. However, what the Applicants have not done is to discontinue or to seek leave to discontinue the proceedings at a time when they knew and were prepared to concede that there was no basis for these proceedings.
On an overall analysis, it appears to the Court that there is nothing in the conduct of the litigation which ultimately persuades the Court that the ordinary rule that costs follow the event ought not apply here.
The Second Respondent seeks indemnity costs against the Applicant. The law with respect to indemnity costs and circumstances warranting indemnity costs orders are well known and a summary of the relevant circumstances for consideration, which are not a closed set of circumstances, are set out in this Court’s judgment in Genovese v BGC Construction Pty Ltd (No. 2).[5]
[5] [2007] FMCA 601 at para. 47 per Lucev FM.
The Court is not generally satisfied that this is an appropriate case for an indemnity costs to be awarded on the basis of what it has already said in relation to the question of costs. The only reservation is with respect to the period from 10 April 2008 when it was apparent that the Applicants had no prospect of success on the application as it is presently before the Court. The Court does consider that it can be argued that:
a)the Applicants have persisted in making allegations that they ought not to have made or at the very least have unduly prolongated groundless contentions; and
b)that has been compounded by the application for adjournment being based on material said to be suggestive, and highly so, in support of the proposition that there was no surrender under the AMart lease.
However, the Court considers that that material is no more than suggestive. It is nothing more than one person’s unsigned notes of telephone conversations which are, without other explanation, vague and ambiguous. So the Court does consider that it is arguable that allegations that ought not to have been made or at the very least ought not to have been unduly prolonged, have been so and compounded by the basis on which the adjournment was sought today. The Court therefore considers that in respect of the applications before the Court, it is arguable that indemnity costs ought to be awarded. The Court needs to balance that view against some of the other considerations to which it has adverted in the course of its judgment on costs, in particular the fact that the Applicants have been candid about their position and that some costs have been saved, particularly costs for preparation concerning the substantive application today.

Having regard to all the facts, the Court considers that this is not a proper case for the award of indemnity costs and there will therefore be an order that the Applicants pay the First and Second Respondents costs which, if not agreed, are to be assessed by a Registrar of this Court in accordance with schedule 1 of the Court’s rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S Gough

Date: