Watson v Australian Community Pharmacy Authority

[2011] FCA 343

FEDERAL COURT OF AUSTRALIA

Watson v Australian Community Pharmacy Authority [2011] FCA 343

Citation:		Watson v Australian Community Pharmacy Authority [2011] FCA 343
Parties:		CRAIG WATSON v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY and PAUL MASON AND ROBERT BELE
File number:		QUD 565 of 2010
Judge:		REEVES J
Date of judgment:		1 April 2011
Date of hearing:	1 April 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Counsel for the Applicant:	G Gibson QC
Solicitor for the Applicant:	Walsh Halligan
Solicitor for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	D Favell
Solicitor for the Second Respondent:	Gadens

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 565 of 2010

BETWEEN:

CRAIG WATSON
Applicant

AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

PAUL MASON AND ROBERT BELE
Second Respondents

JUDGE:	REEVES J
DATE OF ORDER:	1 APRIL 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Secretary of the Department for Health and Ageing be joined to these proceedings as a respondent.

2.The Secretary of the Department for Health and Ageing be restrained from making a decision regarding the application of the second respondents to supply pharmaceutical benefits at 107 Dalley Street, Mullumbimby in New South Wales until following the determination of the application for review in these proceedings.

3.Costs of this application be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 565 of 2010

BETWEEN:

CRAIG WATSON
Applicant

AND:

AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First Respondent

PAUL MASON AND ROBERT BELE
Second Respondents

JUDGE:	REEVES J
DATE:	1 APRIL 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In my view, the applicant has made out a prima facie case in the sense described in Australian Broadcasting Corporation v O’Neill (2006) 80 ALJR 1672; [2006] HCA 46, namely that if the evidence remains as it is there is a probability that at trial of the ADJR proceedings the applicant will be entitled to the relief he seeks. I note that the applicant does not need to show that he will succeed, only that there is a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the hearing of the ADJR application. In my view, the applicant has established on the evidence that there is a sufficient likelihood that his construction of the relevant rule, namely, 201(a) is correct. That rule provides:

   The applicant had on the date of the application, and has on the date on which the authority makes a recommendation in respect of the application, a right to occupy the proposed premises.

2. That involves a number of other related issues that have been raised in addresses and upon which I do not need to elaborate.

3. As to the balance of convenience, given the undertaking as to damages that the applicant has offered, I consider the balance lies in favour of the relief sought, namely, an injunction to maintain the status quo pending the hearing of the ADJR application.  The respondents’ loss, if any, will be met by that undertaking should the applicant be wrong in his construction of the rule I just referred to.  For these reasons, I propose to grant the relief sought.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        8 April 2011