Yu v Australian Community Pharmacy Authority

REASONS FOR JUDGMENT 1 Mr Simon Yu seeks to restrain the Australian Community Pharmacy Authority ("the Authority") from considering an application (which had been due to be considered on 28 June 2013) by Messrs Steven Barlow and Shane Weller (together referred to as "the second respondent" [sic]) 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 to enable proper consideration of the issues in dispute. The second respondent contended that the Court lacked jurisdiction to make the orders sought by Mr Yu although the Court had granted injunctions of the kind sought by Mr Yu in other proceedings. In Issa v Australian Pharmacy Community Authority [2012] FCA 36 ("Issa") Jacobsen J had at 2[4] granted an interlocutory injunction to restrain the Authority from making a recommendation under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth) ("the Rules") in circumstances where an application had been due to be heard by the Authority the day after the hearing before his Honour. In doing so his Honour said at [4]: The effect of the decision of Katzmann J in Commonwealth v (2010) 185 FCR 66 is that if the application by the second pharmacy is successful, Mr Issa's application for review in the Tribunal would be bound to fail. Thus the present application seeks to preserve the subject matter of the review of Mr Issa 's application in the Tribunal. I am satisfied, although with some reservations, that there is a prima facie case within the approach stated by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] and that the balance of convenience favours the grant of relief. In that case, his Honour ordered that the Authority be restrained from determining or making any recommendation in relation to the approval application. The solicitor for Mr Yu, Mr Holzberger, also gave evidence of another proceeding in which this Court had ordered an injunction of the type sought by Mr Yu. Mr Holzberger's affidavit exhibited orders by Middleton J dated 23 February 2012 in Kent v Australian Community Pharmacy Authority (proceeding no. VID 146/2012) containing orders of the kind sought by Mr Yu in this case although Mr Holzberger did not exhibit the transcript of the proceedings before Middleton J nor did he set out what he understood to have been his Honour's reasons for making the orders or the circumstances in which they were made. Mr Yu also relied upon observations which had been made by Katzman J in Commonwealth v Horsfall (2010) 185 FCR 66 ("Horsfall") at 73 [32] and 82 [87] which Mr Yu contended established that he was entitled to the injunction he sought. The second respondent, in contrast, 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 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ("Lenah Game Meats"). In this case the Authority had scheduled its consideration of the second respondent's application on 28 June 2013 whilst Mr Yu had an application for review of a decision pending in the Administrative Appeals Tribunal (in which directions were scheduled to be given on 31 July 2013). 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. An injunction until 22 July 2013 would prevent the Authority from considering the application by the second respondent on 28 June 2013 but would enable the application to be rescheduled for its next scheduled meeting if Mr Yu was not successful in obtaining the substantive injunction he sought. I now turn to whether the substantive orders sought by Mr Yu should be made. 2 The injunction sought by Mr Yu was described as interlocutory but its effect, if granted, is likely to have permanent and substantial commercial consequences. 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. 3 Mr Yu, as I have said, already conducts a pharmacy in Kilmore but seeks approval to conduct a second pharmacy in that locality. Until 18 October 2011 it was not possible for prescribed benefits to be dispensed from two pharmacies in Kilmore. On 18 October 2011 the Rules governing the approval of pharmacies were changed and they now permit prescribed benefits to be dispensed from two pharmacies. The changes were notified publicly on 13 September 2011 by a determination made by the then Minister under s 99L of the National Health Act 1953 (Cth) ("the NH Act") and came into effect on 18 October 2011. 4 On 17 October 2011, one day before the changes to the Rules, Mr Yu made an application to relocate his existing premises from 20 Sydney Street, Kilmore to 92 Sydney Street, Kilmore. Mr Yu's application on 17 October 2011 was not, and could not have been, an application for approval for a second pharmacy because the Rules to permit approval of a second pharmacy were not to come into effect until the next day. Approval of a relocation application, however, had the effect under the Rules of there being two approved pharmacies. The relocation application was recommended by the Secretary for approval by the Authority with the effect that there were then two approved pharmacies in Kilmore. The applicant's purpose in making the relocation application was the subject of cross examination in earlier proceedings before Jessup J in which his Honour found that the applicant had "frankly said that it was his attempt, devised with the assistance of his solicitor, to navigate his way through the regulatory issues associated with the introduction of the 2011 Rules. The point to which he was navigating, of course, was the achievement of a second pharmacy approval for himself in Kilmore, and the exclusion, to the extent possible, of other pharmacists from securing that approval": Yu v Minister for Health [2013] FCA 261 at [49]. 5 On 18 October 2011 the second respondent applied for approval to supply prescribed benefits from 61-63 Sydney Road, Kilmore under s 90 of the NH Act. That application was recommended for approval by the Authority and was subsequently approved by the Secretary. Mr Yu challenged those decisions in earlier proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that there were already two approved pharmacies in Kilmore in consequence of the approval of his relocation application. The Authority's recommendation and approval in favour of the second respondent was set aside, by consent, in the proceedings in this Court and the application that had been made by the second respondent were remitted to the Authority for reconsideration. On 27 April 2012 the Authority rejected the second respondent's first application for approval on the basis that the effect of the Rules at the time (in consequence of Mr Yu's relocation application) was that there were two approved premises in Kilmore. On 25 May 2012 the Secretary rejected the application (as he was bound to do) given the recommendation for rejection by the Authority: NH Act s 90(3B). The formal rejection by the Secretary under s 90 of the NH Act, however, permitted the second respondent to apply to the Minister and seek to have the Minister substitute a decision approving the second respondent's pharmacy for the Secretary's decision of rejection: NH Act s 90A. On 20 July 2012 the Minister exercised her discretion in favour of the second respondent. Mr Yu, however, successfully challenged that decision in proceedings before Jessup J with effect from 24 April 2013 on the basis that the Minister had failed to accord procedural fairness to Mr Yu: Yu v Minister for Health [2013] FCA 261; Yu v Minister for Health (No 2) [2013] FCA 367. The application which had been made to the Minister was remitted by his Honour to the Minister and is still pending for determination by the Minister. On 26 April 2013, however, the second respondent made a second application for approval, and it was that application which the Authority was to consider in the ordinary course of its business on 28 June 2013 and which Mr Yu seeks to prevent from being considered. 6 In the meantime, on 24 May 2012, Mr Yu withdrew his relocation application and simultaneously submitted an application to approve a second pharmacy in Kilmore. On 27 July 2012 the Authority considered Mr Yu's approval application and recommended to the Secretary that it not be approved. On 3 August 2012 the Authority wrote to Mr Yu informing him that it was not satisfied that his approval application met the requirements of rule 132 and recommended under s 99K(1) of the NH Act that the approval application not be approved. The Authority's decision was made at a time when the decision of the Minister approving the pharmacy of the second respondent as the second pharmacy in Kilmore was still operative. The Authority's letter to Mr Yu said: The Authority was advised that the Minister for Health had exercised her discretion to approve a pharmacy for the supply of pharmaceutical services at 61-63 Sydney Street, Kilmore. On this basis, the Authority found that there were two approved premises within the town of Kilmore. The Authority was not satisfied that the proposed premises are located in the same town as only one approval premises. On 24 September 2012, the Secretary rejected Mr Yu's approval application in accordance with s 90(3B). 7 Mr Yu's approval application had been rejected by the Authority on 27 July 2012 and by the Secretary on 24 September 2012 but no proceeding was commenced by Mr Yu to have those decisions reviewed by the Tribunal. However, on 21 May 2013, namely after the orders made by Jessup J on 24 April 2013, Mr Yu applied under the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time in which to bring applications to review the Authority's decision of 27 July 2012 and the Secretary's consequential decision of 24 September 2012. The second respondent's second application for approval which the Authority was due to consider on 28 June 2013 had already been made when Mr Yu decided to apply to the Tribunal for an extension of time in which to have reviewed the decisions which had been made adversely to him by the Authority on 27 July 2013 and by the Secretary on 24 September 2012. The applications for extensions of time to bring the Tribunal proceedings were granted on 7 June 2013 and it is that proceeding which is listed for direction on 31 July 2012. It is that proceeding which Mr Yu wishes to have heard and determined before the Authority (and subsequently the Secretary) considers and determines the competing application by the second respondent. Mr Yu contends, and confidently expects, that a reconsideration of his application will succeed unless the second respondent's application is determined earlier in their favour. The basis of Mr Yu's confidence was explained in an affidavit made by Mr Holzberger on 29 May 2013. In that affidavit he explained that the basis upon which the Authority had given an unfavourable recommendation no longer exists. The recommendation made by the Authority on 27 July 2012, as explained in the affidavit, had been based on the fact that the Minister had exercised her discretion on 20 July 2013 to approve the pharmacy of the second respondent, but that decision was set aside by Jessup J with effect from 24 April 2013. 8 The nub of Mr Yu's case is that he is entitled to orders restraining the consideration by the Authority of the application by the second respondent until there is first determined his proceeding for review pending in the Tribunal. The basis for his claim is said to be the Court's jurisdiction to preserve the subject matter of the proceeding in the Tribunal which would otherwise be rendered nugatory if the application to the Authority by the second respondent is determined in favour of the second respondent. The provisions of the NH Act do not contemplate, or make provision for, what is to occur when there are on foot competing applications made at different times. The legislation provides for the application by Mr Yu to the Tribunal. Section 105AD(2)(a) of the NH Act gave Mr Yu an entitlement to seek review by the Tribunal of a recommendation made by the Authority under s 99K(1)(b)(i) that an applicant under s 90 not be approved under that section in respect of particular premises. Recommendations under s 99K(1) must be made by the Authority in conformity with the relevant rules determined by the Minister under s 99L. Section 105AB(7) confers a comparable right to that in s 105AD(2)(a) to apply for review by the Tribunal of a decision of the Secretary under s 90 rejecting an application under that section. 9 Although the legislation provides for Mr Yu's application for review to the Tribunal it also permits the second respondent's approval application but makes no provision giving either priority nor provides any mechanism for one to override the other. Section 90(1) permits the Secretary to approve a pharmacist for the purpose of supplying pharmaceutical benefits from particular premises. An application to the Secretary is, relevantly, required to be referred to the Authority for its recommendation: NH Act s 90(3A). The Secretary may refuse to grant approval even if recommended by the Authority, but it is a pre-condition to the Secretary granting an application that the Authority has recommended the grant: NH Act s 90(3B). The Secretary may not grant approval under s 90(3D) if satisfied of certain matters. For present purposes it is sufficient to note that the factors to be considered by the Secretary under s 90(3D) are not the same as those to be considered by the Authority under s 99K(2) or by the Minister under s 90A(2). The Minister, for example, may substitute for the Secretary's decision a decision approving the pharmacist for the purpose of supplying pharmaceutical benefits at the particular premises if satisfied about such matters as the public interest and whether the Secretary's decision will result in a community being left without reasonable access to pharmaceutical benefits: NH Act s 90A(2). 10 The Tribunal does not have jurisdiction to issue an injunction to prevent the Authority from considering the second respondent's approval application. This Court however, in an appropriate case, may grant an injunction in aid of a statutory right. The Federal Court is constituted as a superior Court of record (see Federal Court of Australia Act 1976 (Cth) s 5 (2)) with broad powers within its jurisdiction to make orders, including interlocutory orders, as the Court thinks appropriate: Federal Court of Australia Act 1976 (Cth) s 23. The original jurisdiction of the Court under s 39B(1A) of the Judiciary Act 1903 (Cth) includes jurisdiction in any "matter", relevantly, "arising under any laws made by the Parliament". In Fejo v Northern Territory (1998) 195 CLR 96 it was observed at 123 [33] in a joint judgment that "[n]o doubt there are cases in which injunction will go in aid of statutory rights": see also Duchess of Argyll v Duke of Argyll [1967] Ch 302, 346 per Ungoed-Thomas J. In Williams v Minister for the Environment and Heritage (2003) 199 ALR 352 Lindgren J said that the Court had power to grant an injunction directed to preserving the subject matter of litigation, preventing the court's process from being frustrated or preventing an available form of proceeding from being rendered nugatory, provided the Court is seized of a juridical dispute within its jurisdiction. His Honour said at 356[16]-[17]: It is important to identify the basis of my power to grant the interlocutory injunction now sought by Mr Williams. A "superior court of record and ... a court of law and equity", such as this Court (FCA Act subs 5(2)), has inherent or implied power to make an interlocutory order which is necessary to enable it to perform its function as such a court. An example of that power is the power to make an order directed to preserving the subject matter of litigation or to preventing its processes from being frustrated and an available form of proceeding from being rendered nugatory. The power is available whether the court is exercising original or appellate jurisdiction (including jurisdiction to grant leave to appeal). In the case of an appellate court, the order may take the form of a stay of execution of the order appealed from. Provided the court is seized of a juridical dispute in respect of which it has jurisdiction and that dispute remains to be finally determined, the court has the power mentioned. It is appropriate that the power be stated in broad terms of the kind set out in the preceding paragraph. The reason is that the power derives from the nature of a "court" and the unique role of courts in our society as the repositories of judicial power. It would be inconsistent with the rule of law if courts could be denied their role of resolving judicial disputes in accordance with law. Whether the power mentioned is described as "inherent" or "implied" is immaterial. In the case of a court created by statute, such as this court, it can be said that the power is implied because it is inherent in the legislature's use of the concept of "a superior court of record and ... a court of law and equity." It may also be accepted for present purposes that in an appropriate case within its jurisdiction, 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. The possibility of an appeal being rendered nugatory is a matter to be considered in determining whether to refuse interim relief in such cases: see Paringa Mining & Exploration Company v North Flinders Mines Limited (1988) 165 CLR 452, 458, 460 per Mason CJ, Brennan and Gaudron JJ. 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. 11 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. In Lenah Game Meats Gleeson CJ said at 218 [15]-[16]: There could be no justification, in principle, for granting an interlocutory injunction here other than to preserve the subject matter of the dispute, and to maintain the status quo pending the determination of the rights of the parties. If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears. In a context such as the present, a proposition that the respondent has a "free-standing" right to interlocutory relief is a contradiction in terms. This is demonstrated, not only by the purpose for which interlocutory relief is granted, but by the form of the relief. The Full Court granted the injunction sought "until further order". A more usual form of interlocutory injunction would be "until the hearing of the action or further order", but the effect is the same. If there were a "free-standing" right to injunctive relief, why would the injunction be limited in time? If there is no serious question to be tried because, upon examination, it appears that the facts alleged by the respondent cannot, as a matter of law, sustain such a right, then there is no subject matter to be preserved. There is then no justice in maintaining the status quo, because that depends upon restraining the appellant from doing something which, by hypothesis, the respondent has no right to prevent. Gummow and Hayne JJ said at 240-1[89]-[91]: Where interlocutory injunctive relief is sought in some special statutory jurisdiction which uses the term "injunction" to identify a remedy for which it provides, that term takes its colour from the statutory regime in question. Nor should the references in the authorities to legal or equitable rights obscure the significant and traditional use of the injunction in the administration of public trusts, being trusts for charitable purposes, and in ensuring the observance of public law at the suit of the Attorney-General, with or without a relator, or at the suit of a person with a sufficient interest. Further, as was pointed out in Cardile v LED Builders Pty Ltd, the injunctive remedy is still the subject of development in courts exercising equitable jurisdiction. This is true in public law, as Enfield City Corporation v Development Assessment Commission illustrates. The treatment of the requirement for a legal right that is proprietary in nature, and of negative stipulations, referred to in Cardile, are other examples. In addition, as the general law develops in such fields as the economic torts and the protection of confidential information, there is an increase in the scope of the legal and equitable rights for which an injunctive remedy may be available. Similar development of equity is to be observed in England. Lord Millett has said that in England equity is not only "now fully awake" and "on the march again", but "[i]ndeed it is rampant". However, his Lordship also emphasised that "the essential basis for principled advance" lies in "analytical exposition of traditional doctrine". The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature. In Muschinski v Dodds, Deane J said that an equitable remedy "is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles." (citations omitted; see also 232[61]-[62] per Gaudron J). In this case the statutory right which Mr Yu seeks this Court to preserve by an injunction is the merits review by his application to the Tribunal. However, the process in that proceeding is not to preserve an existing legal right but, rather, to confer upon Mr Yu a new right he does not yet enjoy in the exercise of the Tribunal's function of making administrative decisions. In discharging that function the Tribunal will need to consider the facts existing at the time of making its decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286) and there is nothing in the NH Act to suggest that the second respondent is not, or should not be, entitled to exercise any rights pending the hearing of another person's application to the Tribunal for review of a decision. The NH Act does not purport to effect a freeze upon the rights of others by virtue of a person having sought the review by the Tribunal of a decision which of its nature is not declaratory of existing legal rights. 12 Mr Yu's case was put in terms of seeking an injunction to preserve the status quo, but the issue engaged in this proceeding is 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. 13 Mr Yu also contended that his application for an injunction against the Authority was supported by observations of Katzmann J in Horsfall, by the decision of Jacobsen J in Issa and by the orders made by Middleton J in Kent. In Horsfall Katzmann J at 72-73[32] said in reciting the facts: "On the same day Horsfalls' solicitor wrote to the Authority notifying it of the AAT application and requesting, in effect, that the Authority not make a decision about the Carter application. At no time did the Horsfalls approach the Court for an order restraining the Authority from doing so". At [87] her Honour said: "The reason the Horsfalls have found themselves in this position is, at least in part, of their own making. Had they submitted the necessary documentation in the first place to prove their legal right to occupy the premises, they would have trumped Ms Carter. To protect the status quo it was open to them to seek an injunction to restrain the Secretary from considering the Carter application before their appeal was finalised." [Emphasis added]. Her Honour's observation in the second passage quoted assumes that an injunction would have been granted had one been sought but her Honour was not called upon to decide whether an injunction could have been granted and, significantly, her Honour was not referred to Lenah Game Meats Pty. Further, the observations do not appear to have been the subject of any argument about whether the Court would have had jurisdiction had an application been made. The critical issue that was not put to her Honour was whether the Horsfalls had established a pre-existing right capable of protection in light of the decision in Lenah Game Meats. It is that issue which the second respondent raised squarely in this proceeding against Mr Yu and which, in my view, Mr Yu has failed to establish. Neither in the case before her Honour in Horsfall nor the case before Jacobsen J in Issa had the parties engaged the issue of whether the Court had jurisdiction to make orders of the kind sought in this proceeding. There is no reason to assume that the position was otherwise when Issa came before Jacobsen J or when Kent came before Middleton J. The decision in Issa was given ex tempore with his Honour expressing reservations. His Honour had not been called upon to consider whether the applicant in that case had demonstrated a right capable of supporting a final injunction. In this case the injunction sought, although described as "interlocutory", is only "interlocutory" in the sense that it would (if granted) have no further effect after the Tribunal's proceeding concluded. The injunction in this case, however, unlike that in Issa, would otherwise defeat the entitlement of the second respondent. The second pharmacy owner in Issa, unlike the second respondent in the case before me, did not oppose the application. The orders made in Kent do not indicate what issues were engaged in dispute and whether the injunction was granted over the objection of a party affected. It may be that Mr Yu has a right to seek review by the Tribunal of the adverse decisions by the Authority and by the Secretary, but he has not established a right for that review to be conducted upon the facts and circumstances as frozen at the point in time at which the review was sought. In my view he has not established a pre-existing legal right capable of protection as explained in Lenah Game Meats. 14 I would also decline 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. Mr Yu claimed to have had a superior entitlement because his proceeding was said to have been earlier than that made by the second respondents, but that assertion gives no weight to the fact that the second respondents' first application had been made on 18 October 2011 as compared with the commencement of Mr Yu's approval application on 24 May 2012. Nor does it take into account the propriety of the applicant having caused the second respondent's first application to fail by the dubious device of making a relocation application for what appears to have been a collateral purpose. Nor does it take into account that the second respondent's second application (the consideration of which Mr Yu seeks to restrain) was made before Mr Yu commenced proceedings for review by the Tribunal and before Mr Yu had sought an extension of time in which to commence that proceeding. The second respondent's second approval application was made before Mr Yu applied to the Tribunal, and the latter's application was only made after the time allowed for making such applications. Mr Yu's application to the Tribunal in respect of his approval application, in other words, was only made after the second respondent had been free to make the new application with whatever rights might accrue. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.