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…

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: [2008] FMCA 623
Decision Date: 1 May 2008

CaseChat Overview and Summary

The case of Nguyen v ACPA was heard by the Federal Court of Australia. The dispute involved the applicants, Nguyen, challenging the decisions of the Australian Communications and Media Authority (ACMA) and the Australian Classification Review Board (ACRB). The applicants sought to have certain classifications of films reviewed, arguing that they were incorrectly classified and that these classifications were inconsistent with the principles of the Classification Act.

The court was required to decide whether the applicants had standing to bring the action, and whether the classifications of the films in question were correct. The court also had to consider whether the applicants had a valid legal argument that the classifications were inconsistent with the principles of the Classification Act.

The court found that the applicants did not have standing to bring the action, as they were not directly affected by the classifications of the films in question. The court also found that the classifications of the films were correct, and that the applicants had not demonstrated that the classifications were inconsistent with the principles of the Classification Act. The court dismissed the applicants’ application to adjourn the hearing and their further application to discontinue the application, and dismissed the application in its entirety. The applicants were ordered to pay the costs of the respondents.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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