Watson v Australian Community Pharmacy Authority
[2012] FCA 1517
•12 March 2012
FEDERAL COURT OF AUSTRALIA
Watson v Australian Community Pharmacy Authority [2012] FCA 1517
Citation: Watson v Australian Community Pharmacy Authority [2012] FCA 1517 Parties: CRAIG WATSON v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, PAUL MASON AND ROBERT BEALE and THE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING File number: QUD 386 of 2011 Judge: DOWSETT J Date of judgment: 12 March 2012 Date of hearing: 12 March 2012 Place: Brisbane Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 Counsel for the Appellant: Mr G Gibson with Mr DD Keane Solicitor for the Appellant: Walsh Halligan Douglas Solicitor for the First and Third Respondents: Australian Government Solicitor Counsel for the Second Respondent: Mr PJ Flanagan SC with Mr DM Farell Solicitor for the Second Respondent: Gadens Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 386 of 2011
BETWEEN: CRAIG WATSON
AppellantAND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First RespondentPAUL MASON AND ROBERT BEALE
Second RespondentTHE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Third Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
12 MARCH 2012
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the interlocutory application for a stay filed 1 November 2011 be dismissed;
2.the appellant pay the second respondents’ costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 386 of 2011
BETWEEN: CRAIG WATSON
AppellantAND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First RespondentPAUL MASON AND ROBERT BEALE
Second RespondentTHE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Third Respondent
JUDGE:
DOWSETT J
DATE:
12 MARCH 2012
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an application for a stay of a judgment pending determination of an appeal. The appeal is to be heard on 22 May next. The judgment in question was delivered on 29 September 2011. The matter arises out of legislation regulating the dispensing of medicines in this country, the National Health Act 1953 (Cth) (the “Act”). The Act is designed to ensure that only appropriate persons dispense certain medications. It is fair to say that the Act is, to some extent, also concerned with the protection of the interests of practising pharmacists.
Pursuant to s 90, the Secretary may, upon application by a pharmacist for approval to supply pharmaceutical benefits from particular premises, grant such approval. Division 4B contains various provisions relating to the Australian Community Pharmacy Authority (the “Authority”). For present purposes it is sufficient to say that pursuant to s 99K, the Authority makes recommendations to the Secretary as to approvals pursuant to s 90. Subsequent provisions provide for the establishment of various criteria and factors to be considered in the course of making such decisions. The Authority and the Secretary are, respectively, the first and third respondents in these proceedings.
In 2010, the second respondents proposed to establish a pharmacy in premises located in the town of Mullumbimby in northern New South Wales. On or about 6 March 2010, the second respondents applied for approval pursuant to s 90. On 30 April 2010 the Authority decided not to recommend the application. In June 2010 an application was made to the Administrative Appeals Tribunal for review of that decision. The Tribunal remitted the matter to the Authority for further consideration. On 29 October the Authority decided to recommend to the Secretary that the application be approved.
On 17 December the present appellant filed an application for an order of review of that decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). The appellant, as I understand it, presently operates the only pharmacy in Mullumbimby. On 1 April 2011, Reeves J made an order restraining the Secretary from making a decision pending determination of the application for an order of review. The matter was heard on 8 June 2011. On 29 September, Reeves J published his reasons for dismissing the application. On 21 October 2011, the appellant filed a notice of appeal and subsequently made the application for a stay, which application I am presently considering.
For present purposes, I accept that generally, an appellant should not be exposed to the risk that his or her appeal will be rendered nugatory by conduct which may occur during the appeal process. I also accept that the two major factors for consideration in deciding whether to grant or refuse a stay are firstly, the risks to which each side will be exposed in the event that a stay is either granted or not granted, and secondly, the prospects of success on appeal. I accept that it is not for me, sitting at first instance, to pre-judge the appeal. However there would be the risk of serious injustice if the prospects of success on appeal were not at least considered. The hearing before me has focussed on those two issues.
The appellant concedes that he is unable to identify in monetary terms the damage which he may suffer in the event that a stay is refused, and the appeal is eventually successful. He points to the fact that he is presently in a monopolistic position within the relevant community, and that any competition is likely to have a financial impact upon him. I accept that. On the other hand, the absence of any evidence as to the extent to which such competition may effect his trade cannot be overlooked.
The second respondents point to three broad categories of loss. First, there are holding charges associated with moneys they have already invested in identifying and fitting out the premises. Second, there is lost rental which they have been incurring for some time now. They will presumably continue to incur such loss until the matter is finally resolved. Third, Mr Bele, one of the second respondents, has quit his employment in the expectation of being able to commence practice in the pharmacy and so is also losing substantial amounts of money. I accept that both sides have identified cogent grounds for anticipating continuing loss dependent upon whether the stay is granted or refused and the ultimate outcome of the appeal. I note that the second respondents are substantially protected by the fact that the appellant has previously granted an undertaking as to damages in the usual form, and offers the same undertaking again in support of the present application. Although the appellant has offered an undertaking as to damages, the second respondent may have difficulty in quantifying any loss caused by the delay in opening their pharmacy. I am inclined to conclude that the risk of loss is fairly evenly balanced, or perhaps weighted slightly in the appellant’s favour given the undertaking as to damages.
I turn to the question of the prospects of success. In effect, the appellant submits that the Authority ought not to have made the recommendation that it did because one of the matters of which it was required to be satisfied was that the second respondents had a legal right to occupation of the relevant premises. The evidence before the Tribunal demonstrated that the second respondents had held a short-term lease over the premises which had expired on 8 December 2009, but had been extended by an agreement for lease dated 9 December 2009, and a further agreement for extension dated 22 October 2010. Thus there may have been short periods during which there was no lease. However I do not understand the appellant’s case to rely on those short periods. Rather the appellant asserts that the two extensions were not signed by all of the registered proprietors of the property, Paul Victor Haselgrove, Anne Maree Haselgrove, Alexandria Gay Evans and Lionel Scott Evans. The first extension was signed by Mr Evans and the second, by Mr Evans and Mr Haselgrove. In each case the document is said to have been made:
On behalf of Paul Victor Haselgrove, Anne Maree Haselgrove, Alexandria Gay Evans and Lionel Scott Evans.
The Authority apparently acted on these documents. The appellant submits that there is no evidence that either Mr Evans or Mr Haselgrove was authorized to execute the agreement on behalf of the other co-owners, and that the Authority was therefore not entitled to act upon the documents in considering whether it was satisfied that the second respondents had a legal right of occupation.
At first instance, the primary Judge considered this argument and rejected it, holding that the Authority was entitled to act on the material that was put before it. I see no error in that conclusion. To my mind, the appellant’s argument fails to distinguish adequately between the proposition that an agent cannot cloak himself with authority, and the rules of evidence which deal with the establishment of authority.
If I were of the view that there was an issue that had sufficient merits to justify its being ventilated before the Full Court, I would be inclined to grant the stay. However I am not so satisfied. The application for a stay will be dismissed. I order that the appellant pay the second respondent’s costs of the interlocutory application today.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 26 June 2013
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