Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales

Supreme Court of NSW|2023-10-31|Before: Campbell J, Commission J

Background to the dispute

In general terms, the Council is the regulator of the pharmacy profession under the National Law. Clause 5 of Schedule 5F of the National Law limits those who may have a financial interest in a pharmacy business to pharmacists, partners in pharmacists' partnerships or a pharmacists' body corporate or member of a pharmacist's body corporate. Clauses 5(2) and (3) create exceptions not presently relevant, but contravention of cl 5(1) is an offence carrying a maximum penalty of 100 penalty units. Under cl 3(1)(b), a person must not carry on a pharmacy business unless all holders of a financial interest in the pharmacy business are registered in the Register of Pharmacies kept by the council under cl 14. The Register of Pharmacies must contain particulars of approved premises and registered holders of financial interests. Financial interest is exhaustively defined in cl 2. It is unnecessary for the definition to be set out in full for present purposes. I am not required to decide the merits of the case.

Blooms' case

In support of its application the Council read the affidavit of its solicitor, Beverley Ruth Newbold of 29 August 2023 ("Newbold affidavit"). Blooms read the affidavit of its Chief Financial Officer, Andrew Peter Crawford ("Crawford affidavit") of 21 July 2023 [18] - [19] and tendered other applications referred to in that affidavit relating to other pharmacy businesses where the arrangements between Blooms and the relevant pharmacists were said to be substantially to the same effect as those between it and Tran Pharmacy. However, as I am principally dealing with an application for summary dismissal, it is sufficient to refer to Blooms statement of its case in its summons under the heading, "Details and Grounds for Declarations". What follows is my summary of the narrative appearing in the summons: (1) Tran Pharmacy has an agreement to purchase an interest in the pharmacy business. (2) Tran Pharmacy, together with its principal pharmacists, David Tran and Renai Ross, is a party to the OSL Agreement. (3) Pursuant to the OSL Agreement certain goods and services can be supplied by Blooms to the pharmacy business, at the request of the pharmacy business (my emphasis). (4) Tran pharmacy, with David Tran as guarantor, is a party to the Loan Agreement under which Tran Pharmacy has borrowed money for the purpose of acquiring an interest in, and as working capital for operating, the pharmacy business. (5) Tran Pharmacy, in anticipation of acquiring an interest in the pharmacy business, sought approval from the Council under the National Law for a change in ownership of the pharmacy business, for the acquisition by Tran Pharmacy of a financial interest in the pharmacy business and for registration of its financial interest. (6) The Pharmacy Council denied Tran Pharmacy's application on 24 February 2023 on the basis that by virtue of the OSL Agreement and Loan Agreement, Blooms would have acquired a financial interest in the pharmacy business, contrary to cl 5 of Sch 5F of the National Law. (7) Tran Pharmacy sought internal review of the Council's decision and the Council's decision was affirmed on 25 May 2023. (8) Tran Pharmacy has sought external merits review in NCAT. (9) Blooms is not a party to the NCAT proceedings "and has no right to seek review of the decision" of the Council. (10) Blooms is aggrieved by the decision and seeks declaratory relief in order to clarify the entitlement of the parties to the OSL Agreement and the Loan Agreement to proceed with those transactions without contravention of the National Law; (11) Blooms is a party to agreements with other pharmacy business operators which are substantially the same as the OSL Agreement and the Loan Agreement and which are apt to give rise to the same issues about compliance with the National Law. (12) Neither the OSL Agreement nor the Loan Agreement operate, or would operate when Tran Pharmacy acquired an interest in the pharmacy business, to give Blooms an interest in the pharmacy business that constitutes a financial interest within the meaning of Sch 5F of the National Law; (13) Contrary to the reasoning adopted by the Council and the internal reviewer, Blooms does not under the OSL Agreement: (a) have the ability to control the buying functions of the pharmacy business (either when Blooms Own Brand products are supplied or otherwise) including determining demand and arranging for the acquisition of merchandise; (b) generate revenue from the operation of the pharmacy business other than pursuant to a normal contractual arrangement for the provisions of goods or services; (c) obtain a financial interest by virtue of its rights in relation to the supply of marketing services; or (d) obtain a financial interest by virtue of its right to terminate the OSL Agreement. (14) Blooms would not, by reason of any of the matters raised at [13(a) - (d)] obtain a financial interest in the pharmacy business within the meaning of Sch 5 of the National Law if the proposed financial interest of Tran Pharmacy were required and registered. (15) Blooms does not under the Loan Agreement: (a) share in a proportion of the pharmacy business annual profit; or thereby or otherwise obtain a financial interest in the pharmacy business within the meaning of Sch 5F to the National Law if Tran Pharmacy's financial interest were required and registered.

Outline of Council's decision

It is sufficient for present purposes, in my view, to refer to the conclusions reached by the internal reviewer (Ms Joanne Muller) who affirmed the Council's decision. Ms Muller was in substantial agreement with the Council's reasons (Joint Court Book ("JCB") p 258, [76]). It is apparent that her reasoning is based substantially on her interpretation of the OSL Agreement and Loan Agreement, perhaps coupled with a degree of understanding of the nature of a retail pharmacy business selling prescription drugs and other products to the public (JCB p 259, [82(c)]). There was no separate body of evidence about that latter matter. In broad summation, the internal reviewer considered that the OSL Agreement gave Blooms the ability to control the buying functions of the pharmacy business. She observed that under the OSL Agreement, a minimum annual fee of $70,000 plus GST was payable for the provision by Blooms of merchandising support services whether the pharmacy business utilised those services or not. The reality was that the liability for these fees was "an overwhelming commercial imperative" to make maximum use of those services (JCB p 260, [84]). The second matter related to the supply of Blooms' Own Brand Products ("BOBP"). While the agreement did not require the pharmacy business to acquire BOBP, if it did, it was not permitted to stock and sell competitors' products without Blooms' consent. The internal reviewer considered this did not "reflect ordinary commercial terms" (JCB p 261, [91]). Blooms had the ability to stop the pharmacy business acquiring stock or equipment from other suppliers if it reasonably considered that offering those things for sale would damage its "brand".
The internal reviewer considered that the supply of marketing services by Blooms under the OSL Agreement, including by way of brochures and advertising products for sale, may give Blooms opportunities for "rebates and incentives" which are not required to be passed on to the pharmacy business. The internal reviewer considered this to be a factor suggesting Blooms would acquire a financial interest in the pharmacy business (JCB p 262, [97]).
The internal reviewer considered that Blooms' right to terminate the agreements if members of the pharmacy business act adversely to Blooms' interests created "a strong commercial incentive for [Tran Pharmacy] to conduct the pharmacy business in a way that caters to Blooms' interests and minimises the risk of the… termination power being exercised" including by requesting that Blooms provide the various services available under the OSL Agreement, even if the request was not legally mandatory.
The internal reviewer agreed with the primary decision-maker that "the effect of the loan agreement [allows] Blooms effectively to share in a proportion of the annual profits of the pharmacy business, by allowing the annual interest rate that is paid to vary in accordance with the underlying performance of the business". This includes the stipulation for the capitalisation of arrears as "deferred interest". In her view, the terms of the guarantee reinforced this conclusion.
I reiterate that it is clear that both the Council and the internal reviewer reached their conclusions principally upon their construction of the OSL Agreement and Loan Agreement in the context of their understanding of the commercial realities of conducting a pharmacy business. No other evidence was required. In other words, each decision involved an exercise in legal interpretation only.

Summary of the parties' positions on the application

I have been greatly assisted by the comprehensive written submissions of Ms K Richardson SC, who appears with Ms K Bones, for the Council; and of Mr S Free SC, who appears with Ms J Davidson, for Blooms. I do not propose to summarise the very detailed argument, rather I will record that issue has been well and truly joined on the following contentions formulated on behalf of the Council, all of which have been comprehensively amplified in the written submissions and orally at the hearing. The Council relies upon these contentions to discharge its onus of establishing to the high standard applicable in an application for summary dismissal that "the summons does not disclose a reasonable cause of action" and/or is an abuse of process: (a) the proceedings are not a judicial review proceeding, rather they seek a broad declaration of the lawfulness of proposed future conduct; (b) the declaration sought is addressed to a hypothetical question as there is no controversy between Blooms and the Council - the real controversy is between Tran Pharmacy and the Council in the NCAT proceedings; (c) the declaration sought will produce no foreseeable consequence for the parties, or at best, would only assist quelling a controversy between different parties (in the NCAT proceedings); (d) a declaration concerning the lawfulness of future conduct should not be made, including because there are facts in dispute and the declaration would impair the functioning of the regulatory scheme; (e) the proceedings seek to circumvent the merits review scheme provided for by the legislature, where Blooms is able to be joined as a party to the NCAT proceedings and, in truth, is actively involved in the NCAT proceedings through assistance given to Tran Pharmacy with whom Blooms have a common interest for present purposes; and (f) the proceedings do not have consequences for Blooms' arrangements with other pharmacy business operators.

The test for summary dismissal

As is well recognised, the test for summary dismissal, particularly on the ground of no reasonable cause of action being disclosed, is stringent. While the test has been formulated in various ways, it is sufficient for present purposes to refer to the following passage: "It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (Footnote omitted; Agar v Hyde (2001) 201 CLR 552; [2000] HCA 41 at [57], per Gaudron, McHugh, Gummow and Hayne JJ; Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 92, per Dixon J; and General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 130, per Barwick CJ.)
As the only relief sought is a declaration of right, a discretionary remedy, it is apposite also to refer to Commonwealth of Australia v BIS Cleanaway Ltd [2007] NSWSC 1075; 214 FLR 271. Brereton J (as his Honour then was) said at [6]: "I…. do not accept that summary dismissal is not available in a case in which it is asserted that the plaintiff must fail for discretionary reasons. However, summary disposal will be appropriate in such a case only where no reasonable judge could fail to decline relief for discretionary reasons, or alternatively put, where the only proper exercise of discretion would be to decline relief." (My emphasis.)
His Honour also observed that "summary disposal… is rarely granted where it is asserted that a plaintiff's claim will fail on discretionary grounds" because questions of the discretion to grant or withhold relief are judged according to the circumstances prevailing at the time of the hearing: "for the purpose of such an application, the plaintiff's case must be taken at its highest; and it may often be difficult to exclude the possibility that a judge may reasonably not decline relief": BIS Cleanaway at [5].
Whether in private or public law, a declaratory remedy is always discretionary as Brereton J makes clear in BIS Cleanaway: at [23] - [35]. The Council particularly relies upon the discretionary power to refuse a public law remedy where merits review of, or appeal from, an administrative decision is available; and indeed, here merits review is pending. That discretion subsists under the general law, quite apart from the specific provision made by s 34 CAT Act: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [54] - [58] per Gaudron and Gummow JJ; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508 - 512, per Kirby P (as his Honour then was); New South Wales Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal [2001] 53 NSWLR 559; [2001] NSWSC 494 at [46] - [49], per Barrett J; and Makowska v St George Community Housing Limited [2021] NSWSC 287 at [6] - [12], per Basten AJ.
But neither s 34 CAT Act nor the general law create an absolute rule that a public law remedy must be refused when an alternative avenue of review or appeal is available. Section 34(2) CAT Act by its express language makes clear that s 34 "permits, but does not require, the Supreme Court to refuse to conduct the judicial review of a decision" referred to in that section. Likewise, the general law principle is truly discretionary. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited (1949) 78 CLR 389, a mandamus case, Latham CJ, Rich, Dixon, McTiernan and Webb JJ, said at 400: "The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld." Their Honours did state that the writ "may be withheld if a more convenient and satisfactory remedy exists" (my emphasis).
I reiterate, at this interlocutory stage the bar the Council is required to clear is that stated by Brereton J in BIS Cleanaway: as a matter of discretion no judge acting reasonably could but refuse the remedy on the ground that the existence of the external appeal to NCAT requires the refusal of discretionary relief on that ground.
I have not overlooked that the Council also seeks summary dismissal on the ground that the proceedings are an abuse of process. The category of procedural abuse relied upon is that these proceedings are second proceedings calling the Council's decision into question. The first proceedings being the external appeal to NCAT. The Council argues that the commencement of second proceedings with respect to a matter when proceedings are already on foot is "prima facie vexatious": Australian Hardboards Limited v Hudson Investment Group Limited (2007) 70 NSWLR 201; [2007] NSWCA 104 at [34], per Campbell JA; UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [59].
In Burbank Australia Pty Ltd v Luzinat [2000] VSC 128 at [28] - [30] Beach J stated that the "principle applies to proceedings whether they be before a court, a board or a tribunal".

Determination

I return then to the principal contentions advanced by the Council I have summarised at [18] above. It is obvious that there is some cross-over or interplay between some of the individual contentions. With respect they are not all consistent with one another, and some should be understood as put in the alternative.
Dealing with contention (a), two different ideas are advanced. First, that the proceedings are not a judicial review proceeding and, secondly, are legally impermissible because a declaration is sought about "the lawfulness of … future conduct". I bear in mind the high standard of persuasion borne by the Council (see [19] above) and the restraint this standard requires in its application. While in terms Blooms does not seek a "review" of either the original decision or of the internal review decision, the underlying controversy which by its summons Blooms seeks to resolve is the central conclusion arrived at by both decision-makers within the Council that the legal effect of the OSL Agreement and Loan Agreement is to endow Blooms with a financial interest within the meaning of Sch 5F of the National Law in the pharmacy business. It is well established that a declaration may be an available public law remedy: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 2, per Mason CJ, Dawson, Toohey and Gaudron JJ; at 595 - 6, per Brennan J (as the Chief Justice then was); AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 (cf [3], per the Court).
Turning to the second aspect of the contention, the Council is invoking the principle discussed in R (Rusbridger) v Attorney General [2004] 1 AC 357 where Lord Steyn said at [19]: "Normally, the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted. But in truly exceptional cases the court may allow such a claim to proceed". (My emphasis) This principle was fully discussed by Ward CJ in Eq (as the President then was) in The Pharmacy Guild of Australia v Ramsay Health Care Limited [2019] NSWSC 1045 at [152] - [166], relied upon by the Council.
I appreciate that Ward CJ in Eq applied the principle to summarily dismiss those proceedings. The Pharmacy Guild Case, however, is quite different from the present case. It did not involve judicial review of any decision of the regulator. Rather, the proceedings related to a dispute between commercial competitors in the pharmacy industry about whether the defendants were acting in contravention of cl 5 of Sch 5F of the National Law, thus raising directly whether their conduct was criminal.
Here, the regulator is a party, and its decision is at least indirectly challenged in as much as the terms of the declaration sought focus upon the legal interpretation of the OSL Agreement and Loan agreement. There is no suggestion at all that Blooms is engaging or will engage in criminal conduct.
The Council does not say any criminal conduct is being committed. There is nothing on the limited material appropriate to a summary judgment application read before me to suggest that any of the parties at any time are likely to be prosecuted for any contravention of cl 5. The dispute is about the legal meaning of commercial agreements already entered into by Blooms and Tran Pharmacy and in particular whether their legal effect is to endow Blooms with a financial interest in the pharmacy business within the meaning of Sch 5F of the National Law.
I am not satisfied to the requisite high degree of certainty that if these proceedings are allowed to continue, they must be unsuccessful because they offend the principle encapsulated in contention (a).
Next is contention (b). The Council submits the question is hypothetical, as there is no controversy between Blooms and the Council. The real controversy is between Tran Pharmacy and the Council. I will leave to one side for the moment the inconsistency between this formulation and contention (e). Brennan J considered this question in Ainsworth (at 596) by reference to Russian Commercial and Industrial Bank v British Bank for Foreign Trade [1921] 2 AC 438 at p 448 where Viscount Dunedin said: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought".
Each of these conditions is satisfied here. The question is real because it concerns the legal meaning of agreements actually entered into by Blooms and Tran Pharmacy. Given Blooms' commercial interests, it has "a real interest to raise" the correctness of the Council's interpretation. The Council is "a proper contradictor" as the regulator it has "a true interest to oppose the declaration sought". This is demonstrated by the decisions made under its auspices and its real interest in ensuring compliance with the National Law. These matters are at the very least arguable.
Bearing in mind the terms of s 75 Supreme Court Act 1970 (NSW) making clear the Court's power to make biding declarations of right whether or not any consequential remedy is or could be claimed, I tend to the view, without finally deciding, that, as Brereton J pointed out, the judgment of Barwick CJ in Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 applies. The Chief Justice said at 305: "The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion the present case was an apt case for its exercise. The respondent undoubtedly desired and intended to do as he asked the court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare the conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction."
As in that case, Blooms is in the business of supplying support and management services to pharmacy businesses, supplying goods for resale in those businesses and lending capital and working capital to registered pharmacists to enable them to acquire and operate pharmacy businesses. Blooms is desirous of supplying these services and goods to Tran Pharmacy in accordance with the OSL Agreement and the Loan Agreement. The Council is in actual opposition to the contracts that Blooms and Tran Pharmacy have entered into being performed as it regards them as producing a result which is contrary to law. It cannot be said to a high degree of certainty that the declaration sought must be refused.
To the extent to which the Council contends that the real controversy is between Tran Pharmacy (as applicant for registration) and the Council (as regulator), the interests of Blooms and Tran, if not identical are at least complementary, as is well illustrated by the Council's concession that Blooms would be a necessary, or at least proper, party to the proceedings in NCAT. In any event, Tran Pharmacy is a party, albeit a submitting party, to these proceedings.
So far as contention (c) is concerned - no foreseeable consequences for the parties - I am not satisfied to the relevant standard that this argument has been made good. The Council is the repository of statutory power as the regulator of the pharmacy profession. It would be bound by the declaration, if made, and any authoritative statement of law by this Court underpinning the declaration. One could be confident it would act in obedience to those matters. I am not persuaded that the declaration, if made, would only assist quelling a controversy between Tran Pharmacy and the Council in NCAT. The dispute in NCAT is the underlying dispute or controversy which Blooms has brought to the Supreme Court. If the legal interpretation for which Blooms contends prevails, an issue estoppel will arise binding all parties including Tran Pharmacy and the Council. Moreover, NCAT, which has no jurisdiction to authoritatively state the law would necessarily regard itself bound by the ratio decidendi of this Court's decision, should Blooms prevail in the event.
In relation to contention (d) - the Council submits that the declaration should not be made "because there are facts in dispute and the declaration would impair the functioning of the regulatory scheme". Frankly, as I have attempted to make clear, the Council's ruling, including the internal review, under the cl 12(7) discretion turned wholly on its opinion as to the legal effect of the OSL Agreement and the Loan Agreement. To the extent to which the commercial context of the exigencies of carrying on a retail pharmacy was considered, this did not turn on the receipt of extraneous evidence. Given the rules of law governing the interpretation of commercial contracts, it could hardly be otherwise: Chappuis v Filo (1990) 19 NSWLR 490 at 509, per Priestley and Handley JJA.
The Council's understanding of the commercial realities of the conduct of a retail pharmacy business may be relevant context for the interpretation of the agreements, but with respect, it is hardly specialised knowledge given the high level of generality involved. The Court is well equipped to make such an evaluation, so far as it is relevant, for itself.
Moreover, should factual matters arise, this Court is just as well positioned to decide them as NCAT. That there may be disputed questions of fact is a reason to refuse summary dismissal rather than grant it.
The central aspect of contention (e) is that the Court should on discretionary grounds refuse to entertain these proceedings because they seek to circumvent the merits review regime established by the legislature. To recap, the essential elements of that scheme as pointed out by the Council are, first, decision by the Council with an opportunity for internal review under ADR Act; secondly, merits review in NCAT; thirdly, an internal appeal to an Appeal Panel under s 80 CAT Act, as of right on questions of law and by leave on factual questions; and, finally, a question of law appeal by leave to this Court from the decision of the Appeal Panel. For this contention, the Council points out that Blooms is indirectly involved in that process "through assistance given to Tran Pharmacy, with whom Blooms have a common interest for present purposes".
In substance, this contention is that the Court should exercise its discretion to withhold judicial review in its supervisory jurisdiction to allow the controversy, if necessary, to follow each of the steps prescribed for resolution of the administrative controversy I have outlined. By this means, if necessary, the controversy may make its way to this Court in due course.
As I have pointed out at [22] - [23] above, there is no absolute rule under the general law or established by s 34 CAT Act that a public law remedy, after judicial review, must be refused where a merits review or an appeal is available in a lower court or tribunal. The matter is one of discretion to be exercised judicially. By way of example only, the present case is quite different from Boral Gas. There the question was whether the Court of Appeal should stay its hand from interfering in proceedings in the Industrial Commission that had yet to run their course. The Industrial Commission was then constituted as a superior court of record whose judges had the status of judges of the Supreme Court. The decision of a single judge sitting alone was amenable to an appeal to the Full Bench, even in interlocutory matters. In that context, the Court of Appeal adopted a practice of withholding the exercise of its supervisory jurisdiction until the exhaustion of process in the Industrial Commission. I emphasise, this was a matter of practice not law.
Here the situation is different, and it is sufficient to point out, as I have already, that as an administrative tribunal NCAT has no power to authoritatively state, and therefore resolve, the questions of law which are central to the present dispute. But more significantly in the present context, which is not a final hearing, it cannot be said that the authorities to which I have been taken and to which I have referred would require this Court to refuse relief after a final hearing. To put it another way, I am not satisfied, applying the test stated by Brereton J in BIS Cleanaway, that as a matter of discretion no judge acting reasonably could but refuse the declaration sought by Blooms on the ground that the existence of the external appeal to NCAT by way of merits review requires the refusal of discretionary relief on that ground. And I am of this view even accepting that Blooms probably could successfully apply to be joined as a party to the NCAT proceedings under s 44 CAT Act. This brings me to Contention (f).
Contention (f) is that the proceedings do not have consequences for Blooms' arrangements with other pharmacy business operators. In a direct legal sense that may be so. But given the approach of the Council, I imply no criticism, it is obvious that the legal issues in the case extend well beyond the parties to the NCAT proceedings. While any future dispute amongst the Council, Blooms and another or others of the pharmacy businesses referred to at [18] - [19] of the Crawford affidavit will not be finally quelled by this Court's final decision in this case, undoubtedly any such controversy as may arise in an individual case will be quelled by reference to this Court's final decision, which it may be expected will provide authoritative guidance on the law to be applied and how it is to be applied in those cases. According to the Crawford affidavit [18], there are 15 other applications pending raising the same questions as are raised in this case. To my mind, that may well be a very significant reason why the Court after a final hearing would not exercise its undoubted discretion to withhold relief in its supervisory jurisdiction in this case.

Abuse of process

I am not satisfied that the commencement of proceedings in the Supreme Court's supervisory jurisdiction, which, at least so far as jurisdictional error is concerned, is constitutional in nature, when proceedings are pending in an administrative tribunal subject to the Court's supervisory jurisdiction, falls into the category of a second set of proceedings claiming the same relief which must, after that evaluation is made, be dismissed as an abuse of process. As I think the Council's submissions themselves acknowledge, the remedies are different in nature and purpose. The determination of these proceedings will not of themselves finalise the NCAT proceedings. It will remain necessary for NCAT to exercise its jurisdiction, but it will undoubtedly do so in accordance with this Court's decision as to the law and all legal matters authoritatively determined by it.
I point out that the decision in Boral Gas was made as a matter of judicial discretion and practice, not on the ground of an abuse of process. For completeness I should say that the consideration that Blooms is not a party to the NCAT proceedings is not conclusive of the question of whether these proceedings are or may be an abuse of process, especially given the commonality, or at least complementary nature, of interest of Blooms and Tran Pharmacy in both proceedings.
For the same reasons I have already given, I am not of the view that it is appropriate to stay these proceedings under s 67 Civil Procedure Act pending the disposition of the NCAT proceedings. For the reasons I have given in relation to contentions (e) and (f) in particular, I do not, in the particular circumstances of this case, regard NCAT as a more appropriate forum for the determination of the central questions involved in the matter.

Orders

For these reasons, I make the following orders: 1. The first defendant's application for summary dismissal made by Notice of Motion of 31 July 2023 is dismissed. 2. The first defendant is to pay the plaintiff's costs. 3. Direct the parties to approach the Common Law Case Management Registrar within 7 days of today's date for a directions hearing listing to consider the readiness of the matter to proceed to a final hearing or for case management orders to facilitate the listing for final hearing as soon as may be practicable.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2024

tish Bank for Foreign Trade [1921] 2 AC 438 The Pharmacy Guild of Australia v Ramsay Health Care Limited [2019] NSWSC 1045 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 White v District Court of NSW (1998) 45 NSWLR 313 Category: Principal judgment Parties: Blooms the Chemist Management Services Ltd (Plaintiff) Pharmacy Council of New South Wales (First defendant) Tran Pharmacy (Cronulla South) Pty Ltd (Second defendant) Representation: Counsel: S J Free SC with J Davidson (Plaintiff/Respondent on the motion) K Richardson SC with K Bones (First Defendant/Applicant on the motion)

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