Darnell v Stonehealth Pty Ltd

LOGAN J: 1 Mr Ross Darnell (Mr Darnell) has sought the judicial review under either or each of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) or s 39B(1A) of the Judiciary Act 1903 (Cth) of a decision made by the Australian Community Pharmacy Authority (the Authority) on 11 December 2020 to recommend to the Secretary to the Department of Health (Secretary) that an application made by Stonehealth Pty Ltd (Stonehealth) to supply pharmaceutical benefits at premises located at Shops 6 and 7, Flagstone Village Shopping Centre, 6-24 Gates Road, Flagstone, Queensland should be approved, and also the Secretary's consequential decision to grant Stonehealth such an approval under the National Health Act 1953 (Cth) (National Health Act). The Authority and the Secretary have, as is appropriate, adopted the stance of being a submitting party. Stonehealth is the only active party respondent. 2 At Mr Darnell's request, the proceeding was listed today for further case management. It has already been set down for trial. The occasion for the listing was twofold: to seek leave to amend the originating application; and to seek leave for the issuing of a subpoena directed to the proper officer of Coles Group of Property Developments Limited (Coles). 3 The granting of leave to amend proved uncontroversial, although it must necessarily be recorded that although Stonehealth did not oppose the granting of leave to amend, it reserved its rights in respect of the amenability of what appears to be the target of the new ground 6 in the originating application as amended, to judicial review, at least under the AD(JR) Act. The point foreshadowed on behalf of Stonehealth was that ground 6 appeared to be directed not to the decision of the Authority on 11 December 2020 or the Secretary's consequential decision, but rather to an anterior, procedural decision made by the Authority on 13 November 2020. The point foreshadowed was that such a decision may well be one which lacked the necessary quality of finality to amount to a decision under an enactment for the purposes of the AD(JR) Act. 4 Necessarily, the application for leave to issue the subpoena must be decided by reference to the issues raised in the originating application as amended today. The draft subpoena is annexed to an affidavit of Mr Darnell's solicitor, Mr Stoddart. It seeks the production by the proper officer of Coles of the following: 1. Copies of all communications (whether written or electronic) between: • Coles Group Property Developments Pty Limited or its servants or agents; and • Stonehealth Pty Ltd or its servants or agents, including but not limited to Ann Mihulka and Associates in respect of: (a) the opening of the Coles Supermarket located within the Flagstone Village Shopping Centre (the "Coles Flagstone"); and (b) any application by Stonehealth Pty Ltd to supply pharmaceutical benefits from premises within the Flagstone Shopping Centre. 2. Copies of all communications (whether written or electronic) in relation to the decision to open Coles Flagstone on 20 March 2020 pertaining to, in consideration of or as a result of the COVID-19 pandemic; and 3. Copies of all Point of Sale data recording sales made by the Coles Flagstone for the period up to and including 20 March 2020. The sales data to include sales made by number and value and what time they occurred. 5 Mr Darnell took the course, which was, in effect, contemplated by case management directions earlier made, of giving notice of the application for leave to issue the subpoena to each of the respondents. Stonehealth, for its part, has opposed the granting of leave. Consistent with their submitting appearance, the Authority and the Secretary have not sought to be heard on the merits of whether or not leave to issue the subpoena should be granted. 6 A helpful summary of principles which generally attend the question of whether or not to grant leave to issue a subpoena is to be found in a judgment of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785, at [35]: 35 In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge: (a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536. (b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: Adelaide Steamship Co v Spalvins; Commissioner for Railways v Small (1938) SR (NSW) 564; Diddams v Commonwealth Bank of Australia [1998] FCA 9497. The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery. (c) Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia. (d) The documents for production must be identified with reasonable particularity: Commissioner for Railways v Small (1938) SR (NSW) 564 at 574-5 per Jordan CJ. The category of documents must not be so wide as to be oppressive. (e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of "fishing" or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence (Griebart v Morris [1920] 1 KB 659 at 666). (f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave: [8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed. (g) The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents. (h) In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Second, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena? (i) Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. (j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding. (k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay at [34]. (l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 9497. (m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be "seriously unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Hamilton v Oades (1989) 166 CLR 486 at 502; 85 ALR 1 at 11; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; 79 ALR 9; Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [12]. (n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541. (o) In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at [18]: [18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Ltd], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive. 7 One of the authorities cited by Greenwood J is Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 (Australian Gas Light) in which French J, then a judge of this Court, summarised at [8] matters which his Honour considered relevant to the grant of leave: 8 It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed. [emphasis added] 8 His Honour's observations in Australian Gas Light, and, in particular, the sentence emphasised, have given me much pause for thought about the disposition of this application. It is certainly readily possible to find Authority that the test of apparent or adjectival, as it is sometimes termed, relevance by which one measures whether or not to grant leave to issue a subpoena is a low threshold. The test is not one which entails determining whether it appears that the party seeking the issue of a subpoena could or could probably tender the document in evidence. It is enough to establish the requisite apparent or adjectival relevance if the document or class of documents gives rise to a line of inquiry relevant to the issues before the Court, and that extends also for the purpose of meeting an opposing case by way of cross-examination: see, for example, Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, at 374 and Stanley v Layne Christensen Co [2004] WASCA 50, at [9]. 9 In this particular case, the applicant seeks, in one way or another, to advance, in many of its grounds of review, a case that there was on the day in question just no supermarket, as that word has come to be construed by the Full Court in Stonehealth Pty Ltd v ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust [2020] FCAFC 188, at all. It is quite plain, as, indeed, it was at the earlier case management hearing, but certainly as a result of submissions made today on behalf of Stonehealth, that whether or not it is in any way lawfully possible for the Court to embark upon a consideration of whether there was a supermarket on the day in question is very much an issue in the proceedings. 10 Stonehealth's submission can hardly, with respect, be dismissed as idle or frivolous, having regard to the language employed in item 130 of Pt 2 of Sch 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) (the Rules) made relevant to the Authority's deliberation by s 99K of the National Health Act. That item provides: Item Column 1 Column 2 Application kind Requirements 130 New pharmacy (at least 1.5 km) (a) the proposed premises are at least 1.5km, in a straight line, from the nearest approved premises; and (b) the Authority is satisfied that, at all relevant times, there is, within 500 m, in a straight line, from the proposed premises, either: (i) both the equivalent of at least one full-time prescribing medical practitioner and a supermarket that has a gross leaseable area of at least 1,000m2; or (ii) a supermarket that has a gross leasable area of at least 2,500 m2

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