Yu v Australian Community Pharmacy Authority

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.