Yu v Australian Community Pharmacy Authority - [2013] FCA 713

FEDERAL COURT OF AUSTRALIA
Yu v Australian Community Pharmacy Authority [2013] FCA 713

Citation: Yu v Australian Community Pharmacy Authority [2013] FCA 713

Parties: SIMON YU v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ANOR

File number: VID 427 of 2013

Judge: PAGONE J

Date of judgment: 23 July 2013

Catchwords: PRACTICE AND PROCEDURE – injunctions – applicant to establish pre-existing legal right capable of protection – need to balance risk of doing injustice where there are claims for competing entitlements.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 5(2), 23
Judiciary Act 1903 (Cth) s 39(1A)
National Health Act 1953 (Cth) ss 90, 90(3B), 90(3D), 90A, 99K(1), 99L, 105AB(7), 105AD(2)(a)
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth)

Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Commonwealth v Horsfall (2010) 185 FCR 66
Duchess of Argyll v Duke of Argyll [1967] Ch 302
Fejo v Northern Territory (1998) 195 CLR 96
Issa v Australian Pharmacy Community Authority [2012] FCA 36
Kolback Securities v Epoch Mining NL (1987)
8 NSWLR 533
Paringa Mining & Exploration Company v North Flinders Mines Limited (1988) 165 CLR 452
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Williams v Minister for the Environment and Heritage (2003) 199 ALR 352
Yu v Minister for Health [2013] FCA 261
Yu v Minister for Health (No 2) [2013] FCA 367

Date of hearing: 26 June 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the Applicant: P J Flanagan QC with D M Favell

Solicitor for the Applicant: Gadens Lawyers

Counsel for the First Respondent: A Dillon

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: M J Hoyne

Solicitor for the Second Respondent: Best Hooper

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 427 of 2013

BETWEEN:
SIMON YU
Applicant

AND:
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ANOR
Respondents

JUDGE:

PAGONE J

DATE OF ORDER:

23 JULY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be and is hereby dismissed.
2.Order 3 of the orders made on 26 June 2013 be vacated.
3.The applicant pay the respondents’ costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 427 of 2013

BETWEEN:
SIMON YU
Applicant

AND:
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY & ORS
Respondents

JUDGE:

PAGONE J

DATE:

23 JULY 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Simon Yu seeks to restrain the Australian Community Pharmacy Authority (“the Authority”) from considering an application (which had been due to be considered on 28 June 2013) by Messrs Steven Barlow and Shane Weller (together referred to as “the second respondent” [sic]) for approval to supply pharmaceutical benefits from 61-63 Sydney Street, Kilmore. The proceeding came on for hearing on 26 June 2013 and a…

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: [2013] FCA 713
Decision Date

CaseChat Overview and Summary

Simon Yu sought to restrain the Australian Community Pharmacy Authority from considering an application by Steven Barlow and Shane Weller for approval to supply pharmaceutical benefits from 61-63 Sydney Street, Kilmore. The proceeding came on for hearing on 26 June 2013 and a limited interim injunction was granted until 22 July 2013. The second respondent contended that the Court lacked jurisdiction to make the orders sought by Mr Yu. The second respondent contended that the Court lacked jurisdiction to make the orders sought by Mr Yu, that Katzman J had not been called upon to decide, and had not decided, that an injunction would have been granted had an application been made, and that, in any event, the observations in Horsfall were obiter, were made without argument and were submitted to be contrary to the decision of the High Court in Lenah Game Meats. The parties each contended that whichever process was determined first would also probably determine adversely the outcome of the other. The parties plainly needed a reasoned decision but it was not desirable for that to occur in the limited time available between the hearing on 26 June 2013 and the then scheduled meeting of the Authority on 28 June 2013 to deal with the application by the second respondent. The order made on 26 June 2013 to restrain the Authority until 22 July 2013 would preserve the status quo and was limited to permit proper consideration of whether the injunction sought by Mr Yu could, and should, be granted. The application for an injunction arises in the context of Mr Yu and the second respondent each seeking approval to conduct a second pharmacy in Kilmore and considerable previous litigation. Mr Yu has conducted a pharmacy in Kilmore for some time and until October 2011 only one pharmacy could be conducted in the locality. In September 2011 the Rules were changed to permit two pharmacies to be approved and both Mr Yu and the second respondent wish to secure that approval. Only one of them is presently able to secure that entitlement and much may turn upon whether Mr Yu’s proceeding in the Tribunal is determined before the second respondent’s application pending for consideration by the Authority which Mr Yu seeks to restrain. Mr Yu’s proceeding before the Tribunal may, as matters currently stand, succeed unless the second respondent’s application to the Authority is first determined in favour of the second respondent. The second respondent similarly confidently expects the approval of the Application which Mr Yu seeks to restrain unless Mr Yu’s proceeding pending in the Tribunal is first determined in his favour. The Court noted that in an appropriate case, the Court’s power to issue an injunction may be exercised “pending the hearing of a case in another Court which has no injunctive power, so that the other Court can fairly deal with the matter properly before it”: see Young P W, Croft C, Smith M L On Equity (Thomson Reuters, 2009), 1053; see also Mason K, QC “The Inherent Jurisdiction of the Court” (1983) 57 Australian Law Journal 449, 456. An applicant for an injunction, however, must establish a pre-existing right which the applicant is entitled to have protected. The justice in maintaining the status quo “depends upon restraining [a person] from doing something which, by hypothesis, the [other party] has no right to prevent”: Lenah Game Meats at 218 [16] per Gleeson CJ. Mr Yu must establish an existing right to prevent the Authority from considering the second respondent’s application for him to secure the injunction he seeks. The Court held that Mr Yu’s case was put in terms of seeking an injunction to preserve the status quo, but the issue engaged in this proceeding was whether there is some basis for the court preferring the interests of Mr Yu over those of the second respondent. Each has invoked an administrative process calling for a decision which may create rights which do not yet exist. A decision in favour of the second respondent by the Authority may alter the status quo from the point of view of Mr Yu, but the injunction sought by Mr Yu would alter the status quo from the viewpoint of the second respondent since the approval application to be considered by the Authority would then be considered with whatever rights may have been created by the Tribunal. The absence of statutory priority being given to either party may be unsatisfactory but is not a sufficient reason for the Court to prefer one party over another where neither party can point to a pre-existing legal right sought to be preserved by injunction. The Court also declined to make the orders sought as a matter of discretion. The application in this Court was in form seeking interlocutory relief but its effect was that any injunction, if granted, would make possible a decision creating new rights in Mr Yu which would permanently deprive the second respondent of rights under s 90. In such cases, for the purpose of seeing where the balance of risk of doing an injustice may lie, it is desirable for the Court to evaluate the strength of the plaintiff’s case as one for final relief: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 53 per McLelland J. In that context the applicant’s wish to prevent the creation of entitlements in the second respondent must be weighed against the second respondent’s right for that to occur. The Court certified that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. The Court ordered that the application be dismissed, Order 3 of the orders made on 26 June 2013 be vacated and that the applicant pay the respondents’ costs.

Orders