The Commonwealth of Australia v Crowe, R.C

[1992] FCA 953

JUDGMENT No. ...?gx.i;!~a.&

IN THE FEDERAL COURT OF AUSTWIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 180 of 1992

1

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE COMMONWEALTH OF AUSTRALIA

Appellant

AND: REGINALD CHESTER CROWE, JOHN

LOUIS MARONESE, EXTENDED HOURS

PHARMACIES' ASSOCIATION

First respondents

J.M. RIORDAN, J.R. RICHARDSON,
G. MILLER, M. O'BRIEN and
I. McCAULRY (constitutina the

PHARMACEUTICAL BENEFITS

14 DEC 1992 REMUNERATION TRIBUNAL)

Second respondents

THE PHARMACY GUILD OF AUSTRALIA

Third respondent

MINUTE OF ORDER

36 of the Federal Court Rules.
THE COURT	Neaves, Gummow and French JJ.
DATE OF ORDER	11 December 1992
WHERE MADE	Sydney

THE COURT ORDERS THAT the application by the first respondents to vary Order 5 made by the Court on 27 November 1992 be dismissed.

Note:	Settlement and entry of orders is dealt with in Order
IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 180 of 1992

)

GENERAL DIVISION 1

ON APPEAL FROM A JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE COMMONWEALTH OF AUSTRALIA

Appellant

AND: REGINALD CHESTER CROWE, JOHN

LOUIS MARONESE, EXTENDED HOURS

PHARMACIES' ASSOCIATION

First respondents

Second respondents

THE PIWRJUiCY GUILD OF AUSTRALIA

Third respondent

=AM:  Neaves, Gummow and French JJ.

m: 11 December 1992

SUPPLEMENTARY REASONS FOR JUDGMENT

On 27 November 1992, the Court delivered judgment in an appeal against orders made by a Judge of this Court (Einfeld J.) on 18 March 1992. The Court allowed the appeal and made consequential orders. Included in those orders was an order (Order 5) that the first respondents, Reginald Chester Crowe, John Louis Maronese and Extended Hours Pharmacies' Association, pay the costs of the third respondent, The Pharmacy Guild of Australia, of the proceedings at first instance and, as a submitting party, of the appeal.

By leave, the first respondents have made written

submissions why Order 5 should be varied so that the third

respondent would be required to bear its own costs of the proceedings both at first instance and on appeal. The submissions refer to the circumstance that the third respondent had not been named as a party in the original application filed on behalf of the first respondents but was, on its application pursuant to s.12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), made a party respondent by order made by Morling J. on 5 March 1991. The submissions assert that the third respondent could not have played a part in the proceedings "since [it] was not a member of the administrative body" that made the decisions the subject of review; that .the third respondent was not "a necessary party to the proceedings and

Commonwealth"; and that the third respondent did not in fact	had no legal interest separate and apart from the
assist the Court with any submissions of law or fact either at first instance or on appeal. Lastly, it is said that if Order 5 be allowed to stand, "unnecessary costs and Court delays would be encouraged by the addition of 'interested' parties which in matters like the one presently before the Court could be every pharmacy in Australia".
We are unable to agree that Order 5 should be varied as proposed by the first respondents. In the proceedings at first instance, the first respondents challenged certain decisions made by the Pharmaceutical Benefits Remuneration Tribunal established by s.98A of the National Health Act 1953 (Cth) giving effect to an agreement dated 6 December 1990 made between the Minister of State for Aged, Family and Health Services and the third respondent under s.98BAA of that Act. As a party to that agreement, the third respondent was clearly a person interested in the decisions under review and, although its interests coincided with those of the Commonwealth, we are not satisfied that it should be deprived of the costs incurred by it in relation to the proceedings.
The question whether a person who is made a party pursuant to s.12 of the Judicial Review Act to an application under that Act should have an order for costs is, of course, a matter for the discretion of the Court. Nothing we have said in relation to Order 5 will operate to bind the Court as to
how that discretion should be exercised in other cases. We should add that it is not correct to say, as the first
respondents submit, that, if Order 5 be allowed to stand, "every pharmacy in Australia" could have been made a party to the application as being interested in the decisions under review. The situation of the third respondent clearly differed from those of "every pharmacy in Australia" because the third respondent was a party, and a necessary party, to the agreement that was the subject of the proceeding. Further, it is not correct to say that the third respondent did not assist the Court with any submissions of law or fact either at first instance or on appeal. It is true that the third respondent made no separate submissions on the hearing of the appeal but, at first instance, affidavit material was filed on its behalf and submissions were made to the primary Judge by counsel retained by it.

The application to vary Order 5 is dismissed.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of the Court.

Associate

Dated: 11 December 1992