Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority

1. Grounds 1, 2 and 2A of the amended originating application for judicial review have been established.
2. Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): (a) the recommendation made by the first respondent to the second respondent on 9 June 2017 to approve an application made by the third respondent pursuant to s 90 of the National Health Act 1953 (Cth) to supply pharmaceutical benefits from a medical centre located at 5 Halloran Street Vincentia in New South Wales (Application), and (b) the decision to approve the Application made by the second respondent on 4 December 2017, are set aside with effect from 8 April 2020.
3. Pursuant to s 16(1)(b) of the ADJR Act, upon Order 2 coming into effect, the Application be referred to the first and second respondents for further consideration according to law.
4. The third respondent pay the applicant's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 11 February 2020, the Court delivered reasons in relation to a partial hearing of an amended originating application for judicial review filed by Choice Pharmacy Vincentia Pty Ltd (amended application). Choice Pharmacy sought judicial review of a decision of the Australian Community Pharmacy Authority to recommend to the Secretary of the Department of Health to approve an Application made by Vincentia MC Pharmacy Pty Ltd pursuant to s 90 of the National Health Act 1953 (Cth) to supply pharmaceutical benefits from a medical centre located at 5 Halloran Street Vincentia in New South Wales (Medical Centre). In the amended application, Choice Pharmacy sought orders setting aside the Authority's recommendation and the Secretary's decision to approve the Application: see Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority [2020] FCA 93 (Reasons). 2 The Court ordered the parties to provide draft orders reflecting the Reasons in relation to grounds 1, 2 and 2A of the amended application and with respect to relief and costs. If the orders were not agreed, each party was to provide draft orders for which they contend and submissions supporting the party's position. When judgment was delivered, the Court told the parties that if any party considered that the matters the subject of the submissions required an oral hearing, they should say so in their submissions. 3 The parties did not agree orders. 4 Choice Pharmacy provided draft orders with respect to relief and costs but no orders reflecting the Reasons. Choice Pharmacy addressed contentions made by MC Pharmacy in its submissions. 5 MC Pharmacy provided draft orders reflecting the Reasons but not in relation to relief and costs. MC Pharmacy submitted that: (1) It wishes to appeal the Reasons and had sought to file a notice of appeal. However, it had been advised by Registry that it could not do so until the Court has made orders. Accordingly, all that was required was for the Court to make orders reflecting the Reasons; that is, to respond to the questions posed by Grounds 1, 2 and 2A of the amended application. (2) Rule 30.02 of the Federal Court Rules 2011 (Cth) allows a party to apply to the Court for judgment or an order dismissing proceedings, but only where the "case stated" substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary. MC Pharmacy submitted that that is not the present case. (3) Paragraphs [3]-[11] of the amended application (referred to as ground 3) contain serious allegations which, in fairness, MC Pharmacy needs to have clearly addressed and disposed of. Further, whether the validity of the Secretary's decision to approve the Application is infected by any invalidity of the Authority's recommendation needs to be addressed, as no discrete grounds are raised in the amended application against the Secretary's decision. Most importantly, there is a substantial question as to whether the Court should decline relief on a discretionary basis and issues of costs will turn on whether the Court decides whether to decline relief. (4) In the absence of an appeal, the Court should make orders for the proper disposition of the remaining matters which would allow the parties to be heard on ground 3 and on the discretion to grant relief and costs. The submissions go on to say (at [3.3]-[3.4]): 3.3 … In particular, the Third Respondent seeks a reasonable opportunity to make written and oral submissions in relation to the discretion to claim relief, on the basis of delay, acquiescence, futility, unreasonable prejudice and disproportionate inconvenience and injustice. 3.4 However, as indicated above, the Third Defendant intends to file a notice of appeal from the order made by the Court that determine the case stated. For that reason, it is inappropriate for the Third Defendant to make submissions now on the remaining issues in the proceedings including relief, the discretion to decline relief and costs. If the Third Respondent did so, it would give the erroneous appearance that the Third Respondent acquiesces in the order reflecting the Judgment in the case stated. (5) If the Court were to make an order by way of final relief quashing the Authority's recommendation and the Secretary's decision to approve the Application, it should do so from a date later than the date of the Court's order pursuant to the power conferred under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), for instance, 21 days. 6 The Authority provided draft orders and submissions. The Authority said that it had no interest in the question of whether final orders setting aside the decisions under review should be made at this point in the proceeding, nor did it have any interest in whether, if such orders were made, those orders should be stayed. It accordingly made no submissions on those points. 7 The Authority submitted that it did have an interest in the form of any final orders, should they be made, because that is a question that, potentially, affects the administration of the National Health Act and the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) (ACPA Rules). 8 In particular, the Authority supported MC Pharmacy's submission that any orders quashing the Authority's recommendation and the Secretary's decision to approve the Application take effect 21 days after the orders pursuant to s 16(1)(a) of the ADJR Act are made, relying on the decision in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 and Mortimer J's discussion in a similar legislative context in Stambe v Minister for Health (No 2) [2019] FCA 479 at [32]-[100] (especially at [78]-[83]). The Authority supported MC Pharmacy's contention that this form of relief avoids significant practical inconvenience and legal complexity that may arise if the relief operated to render the decisions under review void ab initio. The Authority submitted that the deferral of relief appropriately reflects the reality that MC Pharmacy and third parties have acted on the basis that MC Pharmacy had in fact obtained approval to supply pharmaceutical benefits from the Medical Centre. 9 The Authority noted that, at the substantive hearing, it made the following submissions with which no party then took issue: (1) It did not seek any order for its costs in relation to the substantive proceeding, relying on Alexander v Australian Community Pharmacy Authority (No 3) [2010] FCA 506 at [8]; Assarapin v Australian Community Pharmacy Authority [2015] FCA 268 at [49]; and (2) For the same reason, it should not be made to pay costs in the event that the decision is found to be affected by error, relying on Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) [1987] FCA 393; 77 ALR 609 at 612. 10 The Authority submitted that MC Pharmacy appeared as an active contradictor and the Authority's propositions reflect its limited role in the proceedings so that no order for costs should be made against it. The Court notes that Choice Pharmacy appears to accept that position: see Choice Pharmacy's submissions on relief and costs at [22].