consideration
18 The law regarding a grant of an interlocutory injunction is well-settled. In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, Gleeson CJ and Crennan J observed at [19] that
…In all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.
(see also Gummow and Hayne JJ at [65])
19 I am not satisfied that the interlocutory injunctive relief sought by the applicants should be granted. This is primarily because I am not satisfied that, in ground 1(a) as pleaded by the applicants, the applicants have demonstrated that there is a serious question to be tried. As the second respondent correctly identified, that ground seeks to conflate merits review with judicial review, the former being impermissible.
20 That this is so is plainly demonstrated by reference to r 10(3) of the Rules. Under r 10(3)(c) the first respondent need only be satisfied that proposed premises could be used for the operation of a pharmacy under relevant regulations. Satisfaction in this sense is a highly subjective concept, and cannot easily be disproved.
21 The relevant regulations in this case were, as the applicant submitted, under the Planning Act 2016 (Qld)(Planning Act), in particular s 71 which relevantly provides:
When development approval has effect
71 WHEN DEVELOPMENT APPROVAL HAS EFFECT
(1) Generally, a development approval starts to have effect when the approval is given, or taken to have been given, to the applicant.
(2) However -
a) if an appeal about the approval is started, and subject to the outcome of the appeal - the approval starts to have effect when the appeal ends; or
22 Notwithstanding the submission of the applicants that the decision of the first respondent was affected by error of law because of some alleged failure of the first respondent to take into account s 71 of the Planning Act, this does not mean that the decision of the first respondent was affected by an "error of law" within the meaning of s 5(1)(f) of the ADJR Act.
23 As Logan J noted in Hallgath at [9]:
That does not mean that such decisions which are made by reference to such a criterion are unexaminable on judicial review. It does though mean that the grounds of review which relate to this particular aspect of the Authority's recommendation decision will not be met if there was some evidence before the Authority which was reasonably probative of the state of satisfaction which the Authority voiced in its reasons.
(emphasis added)
24 The applicants were not able to point to any evidence to demonstrate that the first respondent, in being satisfied for the purposes of r 10(3)(c) of the Rules, did not give proper consideration to all of the materials before it, or that those materials were not probative.
25 At the hearing Mr Gunson SC for the applicants further submitted that s 5(1)(f) of the ADJR Act encompassed a broader range of errors of law than those which gave rise to jurisdictional error. However, even if there were errors of fact in the decision of the first respondent, this does not necessarily mean that such alleged errors were errors of law as distinct from errors of fact such as to enliven s 5(1)(f) of the ADJR Act. As Jagot J explained in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26:
84. The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being "no probative" evidence to support a finding or a finding not being "reasonably open" or "open" on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on "some probative material or logical grounds" and that a finding not be "completely arbitrary" (as in Australian Broadcasting Tribunal v Bond at 366 and 367, Kostas v HIA Insurance Services Pty Ltd at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula "some probative material or logical grounds" does not convert questions of fact into questions of law.
(emphasis added)
26 (See also for example Foster J in SPI Electricity Pty Ltd v Australian Energy Regulator [2014] FCA 1012 at [72]).
27 Earlier, in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22, a decision of the High Court examining an application pursuant to s 5(1)(f) of the ADJR Act, their Honours relevantly observed at 594-595:
In this way, both on the Minister's appeal and the respondents' defence of the Full Court's decision, the matter eventually comes down to the question whether an error of law is shown in the approach of the Tribunal to the performance of its statutory function. This was the way that Beaumont J approached the matter. He upheld the contention.
The applicable principles are not in doubt. The question whether facts, as accepted by a primary decision-maker, fall within or outside a statutory provision is itself a question of law. Whether a primary decision-maker has accurately considered and applied the relevant law may also present a question of law. If it appears that a donee of statutory powers is labouring under a misapprehension as to the requirements attaching to their exercise, it is the reality, and not the appearances, which matters. In Sinclair v Maryborough Mining Warden, Gibbs J explained:
"[It] appears from these reasons that in making his recommendation the warden was labouring under a misconception as to his duty, so that he did not apply himself to all the matters that the regulations required him to consider. There was thus a purported but not a real exercise of his functions and he has failed to perform his duty according to law".
Such questions are usually expressed in terms of whether the decision-maker "really" or "genuinely" or "truly" considered the matters essential to the exercise of the power invoked. But such adverbs add little or nothing to the legal requirement unless they help to emphasise that the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.
In the present case, Beaumont J asked himself "Did the Tribunal really address the correct legal question?" He considered that the issue was "a difficult one". He concluded:
"[To] adopt the language used in Sinclair, although the Tribunal may have purported to address this question, it did not really do so, with the consequence, I think, that there was a constructive failure by the Tribunal to exercise its jurisdiction".
(footnotes omitted, emphasis added)
28 In summary, for the purposes of the interlocutory relief sought by the applicants, any alleged error of the first respondent as pleaded in ground 1(a) could not be said to be an error of law such as to give rise to a serious question to be tried at this interlocutory stage.
29 However, even if I am wrong in finding that a serious question to be tried did not arise, I am not satisfied that the balance of convenience favours the applicants. Evidence currently before the Court, in particular in the affidavits of Ms Kristine Hall, sworn on 28 November 2022, and the affidavit of Mr Tavakol shows that, inter alia:
The relevant premises of the first and second applicants presently operate as a hairdresser and a pizza shop respectively (in other words, plainly not pharmacies);
It would appear that minimal fit-out of the applicants' premises has occurred to date;
As matters stand, it is unlikely that the applicants would be in a position to commence trading until February 2023; and
In contrast, the fit-out of the premises of the second respondent is well-advanced such that it would apparently experience detriment in the event that it was restrained from trading.
30 Further, I am not persuaded that, as the applicant's contended, allowing the second respondent to begin trading would somehow "lock up" 50 per cent of its potential client base. It is also impossible to quantify the damage to the first applicant's business, which is not yet trading as a pharmacy.