FEDERAL COURT OF AUSTRALIA

Issa v The Australian Pharmacy Community Authority [2012] FCA 36

THE COURT ORDERS THAT:

1.    Upon the Applicant by its counsel giving the usual undertaking as to damages, the First Respondent be restrained until the further order from determining or making any recommendation in relation to any application in relation to the grant of approval under s 90 of the National Health Act 1953 (Cth) with respect to premises located within a radial distance of 10 kilometres of 151 Myrtle Street, Mylteford, Victoria 3737 until further order or until the determination of the Applicant’s proceedings in the Administrative Appeals Tribunal.

2.    The parties have liberty to apply on seven days’ notice

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

1    The Applicants (collectively “Mr Issa”) seek an interlocutory injunction to restrain the Respondent (the “Authority”) from making a recommendation under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Cth).

2    Mr Issa is a pharmacist who wants to open a pharmacy in Myrtle Street, Myrtleford, Victoria (the “first pharmacy”).

3    Mr Issa applied to the Authority for permission to operate a pharmacy at those premises under the Pharmaceutical Benefits Scheme, but the application was rejected by the Authority. Mr Issa has a right of review by the Administrative Appeals Tribunal (the “Tribunal”) of the determination of the Authority and he has filed such an application. However, in the meantime, a second pharmacy (the “second pharmacy”) has applied to the Authority for approval of its pharmacy which would be located within 10 kilometres of the first pharmacy. That application is due to be heard by the Authority shortly and indeed it may be dealt with tomorrow.

4    The effect of the decision of Katzmann J in Commonwealth v Horsfall (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.

5    My reasons, very briefly, are as follows.

6    First it is true, as Mr Gouliaditis who appears for the Authority points out, that ordinarily injunctive relief would be granted to preserve the subject matter of a proceeding in this court. As Mr Gouliaditis has submitted, the Tribunal has power in certain circumstances under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to grant a stay, and it may be that the Tribunal would have power to grant relief under that provision. However, Mr Gouliaditis was not, in the short time available, able to refer me to authorities on the scope of the power under s 41(2). In my view, without the benefit of any relevant case law, there appears to be a real question as to whether s 41(2) would permit the Tribunal to grant effective relief in the circumstances of this case. It seems to me that I do have power to grant relief which would preserve the subject matter of a proceeding in the Tribunal and I am prepared to do so.

7    The second reason why I propose to grant interlocutory relief is that Ms Antonini who appears today, with leave, for the owners of the second pharmacy neither consents to nor opposes the interlocutory relief provided that Mr Issa gives the usual undertaking as to damages. Mr Woods who appears for Mr Issa has informed me that he has instructions to give that undertaking.

8    It seems to me that the attitude of the owner of the second pharmacy is a particularly relevant consideration in the present circumstances and as I have said I take that into account in my decision to grant relief this morning. I should add that consistently with the decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, Mr Gouliaditis neither consents to nor opposes the application.

9    I therefore propose to grant injunctive relief until further order. However, I am concerned to ensure that the matter not be allowed to drift indefinitely and I will therefore grant liberty to apply on seven day’s notice to the Court.

Associate:

Dated:    19 January 2012