FEDERAL COURT OF AUSTRALIA
Slopen Main Pty Ltd (Trustee) v Hope [2017] FCAFC 203
Appeal from: Hope v Australian Community Pharmacy Authority [2017] FCA 669 File number(s): TAD 26 of 2017 Judge(s): GRIFFITHS, MORTIMER and BROMWICH JJ Date of judgment: 12 December 2017 Catchwords: ADMINISTRATIVE LAW – appeal against orders setting aside decision recommending grant of approval to supply pharmaceutical benefits from premises – alleged denial of procedural fairness in relation to adverse findings of fraud in a public law sense – whether appellant had had opportunity to respond to issue that could have altered findings – held: procedural fairness denied to appellant – discretion not to set aside order of primary judge exercised on grounds of futility
COSTS – whether respondents should pay half of appellant’s costs of appeal upon appeal being rendered nugatory – held: appellant took no steps to seek adjournment of appeal or stay of third respondent’s reconsideration process – held: preparation of appeal could have been avoided by adequate communication by appellant – held: respondents entitled to order that costs follow outcome of appeal – held: appeal dismissed with appellant to pay respondents’ costs
Legislation: Federal Proceedings (Costs) Act 1981 (Cth), s 6
National Health Act 1953 (Cth), ss 90, 99J, 99K, 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (PD 65 of 2011) (Cth), s 5(1), 7, 8, 9, 10(b), 11, Sch 1, Pt 2, item 133
Cases cited: Ashby v Slipper [2014] FCAFC 15; 219 FCR 322
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Stead v State Government Insurance Commission (1986) 161 CLR 141
Yu v Minister for Health(No 2) [2013] FCA 367; 216 FCR 188
Date of hearing: 6 November 2017 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr G Gibson QC with Mr D Chesterman Solicitor for the Appellant: Bennett & Philp Lawyers Counsel for the First and Second Respondents: Mr C Gunson SC with Mr A Walker Solicitor for the First and Second Respondents: Robert James Lawyers Counsel for the Third and Fourth Respondents: The Third and Fourth Respondents filed submitting notices save as to costs ORDERS
TAD 26 of 2017 BETWEEN: SLOPEN MAIN PTY LTD ATF THE SLOPEN MAIN DISCRETIONARY TRUST
AppellantAND: GEOFFREY PETER SPRINGFORD HOPE & ELIZABETH JANE HOPE T/AS ELIZABETH HOPE PRICELINE
First RespondentROHAN BILL TARGETT T/AS BRIGHTON PHARMACY
Second RespondentAUSTRALIAN COMMUNITY PHARMACY AUTHORITY
Third RespondentSECRETARY, DEPARTMENT OF HEALTH
Fourth Respondent
JUDGE:
GRIFFITHS, MORTIMER and BROMWICH JJ
DATE OF ORDER:
12 DECEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs and the second respondent’s costs of and incidental to the appeal, as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The legislative scheme
[4]
The appellant’s plan…
Keep reading for free
Create a free CaseChat account to read Slopen Main Pty Ltd (Trustee) v Hope and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] FCAFC 203
- Decision Date
CaseChat Overview and Summary
The court determined that the appellant had indeed been denied procedural fairness, as it had not been given the opportunity to respond to the issue that the appellant had actively misled the Authority by providing false or misleading information. This was crucial because the primary judge based his decision on this basis, which was not part of the respondents' pleaded case. The court further held that the preparation of the appeal could have been avoided if the appellant had engaged in adequate communication. Therefore, the appeal was dismissed with the appellant ordered to pay the respondents' costs.
The court's reasoning was that the appellant was not given any opportunity to adduce evidence or make submissions on proposed adverse findings concerning the conduct or state of mind of the appellant's solicitor, Mr Hannan, as attributed to the appellant in relation to the information found to be deliberately or recklessly false. This denial of procedural fairness to the appellant's solicitor was necessarily a denial of procedural fairness to the appellant. Furthermore, the court found that the appeal was rendered nugatory, and the appellant took no steps to seek an adjournment of the appeal or a stay of the third respondent's reconsideration process.
In conclusion, the appeal was dismissed, and the appellant was ordered to pay the first and second respondents' costs of and incidental to the appeal. The court accepted the respondents' submissions on costs and found that the appeal could be determined on the narrow version of the appeal grounds of denial of procedural fairness, without any need to determine the substantive issues between the parties raised by the remaining appeal grounds.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs and the second respondent’s costs of and incidental to the appeal, as assessed or agreed.
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
Ratio Decidendi
Legal Principle Established
By a Notice of Appeal filed on 14 July 2017, the appellant pleaded six grounds of appeal. Grounds 1 to 3 concern findings of fraud in public law, while grounds 4 to 6 allege a denial of procedural fairness. This appeal is able to be determined upon a narrow version of the appeal grounds of denial of procedural fairness, without any need to determine the substantive issues between the parties raised by the remaining appeal grounds. Consideration The pleadings in [17] and [18] of the FASOC reproduced at [26] above describe the means sought to be used by the appellant to circumvent the 500-metre restriction on new approvals. The case as developed at trial complained that this strategy was not disclosed to the Authority, being a circumstance that was said to make good the allegation of lack of bona fides in applying for approval of the temporary premises. The appellant’s defence denied both the allegation as pleaded and the relevance of any such allegation in any event. The appellant’s case before the primary judge was that the legislative scheme did not preclude its two-stage strategy, irrespective of whether that strategy was disclosed or not. The respondents’ pleaded case was therefore, at most, one of the appellant misleading the Authority by omitting reference to its strategy, including by omitting disclosure of facts that would or might have revealed that strategy. It is not necessary on this appeal to decide whether, on the face of all the material, there was such an omission, nor whether any such omission would have vitiated the Authority’s approval recommendation. That is because the primary judge did not base his decision upon such an omission, but rather upon his Honour finding that the appellant deliberately or recklessly provided false or misleading information. As that was not the pleaded case, it was only open to the primary judge to decide the judicial review application upon that basis if this was otherwise clearly part of the case that the appellant was called upon to meet, and the appellant was given sufficient opportunity to do so. Senior counsel for the respondents quite properly conceded that their case before the primary judge had never extended to any allegation that the appellant had actively misled the Authority by the provision of false or misleading information, as opposed to, at worst, a case of passive omission which concealed the appellant’s true strategy. The case for the respondents did not, in substance, go beyond circumstances of the kind considered by Jessup J in Yu. A case of misleading the Authority by commission was never part of the respondents’ case. Accordingly, it was not a case that the appellant was ever called upon to meet, or had any other meaningful opportunity to meet. As the acts attributed to the appellant in actively misleading the Authority were the acts of its solicitor, Mr Hannan, a denial of procedural fairness to him was necessarily a denial of procedural fairness to the appellant. That link obviates any need to consider his position separately as a non-party to the proceedings. The appellant was not given any opportunity to adduce evidence or make submissions on proposed adverse findings concerning Mr Hannan’s conduct, or state of mind, as attributed to the appellant, in relation to the information in Ms Bowkett’s statutory declaration found by the primary judge to be not just false, but deliberately or recklessly so.