Banias, Chris & Anor v Australian Community Pharmacy Authority & Anor [1997] FCA 170

Banias, Chris & Anor v Australian Community Pharmacy Authority & Anor [1997] FCA 170

A stay was granted in favour of the first applicant because there was a serious question to be tried about the construction of clause 6(a) of the Determination and whether the access route used was "lawful access", and the balance of convenience favoured the first applicant. The second applicant did not establish sufficient likely detriment to justify relief. The issues concerning reasons and production of documents under s135A were not finally determined and were adjourned for written submissions.

Jurisdiction
Australia
Judgment Date
14 March 1997
Procedural Posture
Administrative Law Application Concerning a Recommendation for Approval to Supply Pharmaceutical Benefits Under the National Health Act 1953 / Interlocutory Notice of Motion Seeking Suspension of the Decision and Stay of Proceedings Under It, With Related Requests for Reasons and Production of Documents
Outcome
Decision suspended and proceedings stayed until hearing and determination of the application or further order, upon the first applicant giving the usual undertaking as to damages; further issues concerning reasons and production of documents adjourned.
Legal Topics
['interlocutory Stay' 'serious Question to Be Tried' 'balance of Convenience' 'national Health Act 1953 Pharmacy Approval' 'reasons for Decision' 'secrecy Provision' 'notice to Produce']
['administrative Law' 'health Law'] ['interlocutory Stay' 'serious Question to Be Tried' 'balance of Convenience' 'national Health Act 1953 Pharmacy Approval' 'reasons for Decision' 'secrecy Provision' 'notice to Produce']

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Procedural Posture

Administrative Law Application Concerning a Recommendation for Approval to Supply Pharmaceutical Benefits Under the National Health Act 1953 / Interlocutory Notice of Motion Seeking Suspension of the Decision and Stay of Proceedings Under It, With Related Requests for Reasons and Production of Documents

Legal Issues

  1. 1 ['Whether the first respondent\'s decision involved an error of law in the construction of clause 6(a) of the Determination, particularly the phrase "measured door to door by the shortest lawful access route".' 'Whether access through the Target car park was "lawful access" for the purpose of measuring distance between the existing and proposed pharmacy premises.' 'Whether the balance of convenience favoured relief for the first applicant and/or the second applicant.' 'Whether delay by the first applicant should prevent the grant of a stay.' 'Whether s135A of the National Health Act 1953 justified the respondents in not providing reasons and not producing documents.']

Ratio Decidendi

A stay was granted in favour of the first applicant because there was a serious question to be tried about the construction of clause 6(a) of the Determination and whether the access route used was "lawful access", and the balance of convenience favoured the first applicant. The second applicant did not establish sufficient likely detriment to justify relief. The issues concerning reasons and production of documents under s135A were not finally determined and were adjourned for written submissions.

Court Disposition

Decision suspended and proceedings stayed until hearing and determination of the application or further order, upon the first applicant giving the usual undertaking as to damages; further issues concerning reasons and production of documents adjourned.

Orders

  • ['The decision made by the first respondent on 9 June 1995 pursuant to s90(3B) of the National Health Act 1953 to recommend to the second respondent that an approval be granted pursuant to s90(3) of the Act to Messrs Weir and Alexander to supply pharmaceutical products at or from premises at 870 Plenty Road,...