Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales [2024] NSWSC 296

Blooms the Chemist Management Services Ltd v Pharmacy Council of New South Wales [2024] NSWSC 296

The Court dismissed the application for summary dismissal because it was not satisfied, to the requisite high degree of certainty, that the proceedings must fail or amount to an abuse of process: the question raised by the plaintiff is real, the Council is a proper contradictor, and the discretionary considerations do not compel refusal of relief at this stage despite the availability of alternative merits review.

Parties
Plaintiff: Blooms the Chemist Management Services Ltd; First Defendant: Pharmacy Council of New South Wales; Second Defendant: Tran Pharmacy (Cronulla South) Pty Ltd
Jurisdiction
Australia
Judgment Date
22 March 2024
Procedural Posture
Application for Judicial Review / Declaratory Relief / Interlocutory; Application for Summary Dismissal
Outcome
Summary dismissal application dismissed; orders for costs; matter to proceed to directions hearing for final hearing preparation
Legal Topics
Summary Dismissal, Declaratory Relief, Supervisory Jurisdiction, Abuse of Process, Merits Review, Judicial Review, Pharmacy Regulation
Civil Procedure Administrative Law Summary Dismissal Declaratory Relief Supervisory Jurisdiction Abuse of Process Merits Review Judicial Review +1 more

Case Brief

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Parties

Blooms the Chemist Management Services Ltd

Plaintiff

Pharmacy Council of New South Wales

First Defendant

Tran Pharmacy (Cronulla South) Pty Ltd

Second Defendant

Procedural Posture

Application for Judicial Review / Declaratory Relief / Interlocutory; Application for Summary Dismissal

Legal Issues

  1. 1 Whether the plaintiff's proceedings for a declaration should be summarily dismissed or stayed given pending NCAT merits review proceedings
  2. 2 Whether the Court should refuse a discretionary public law remedy where merits review is available
  3. 3 Whether the proceedings are an abuse of process as duplicative proceedings

Ratio Decidendi

The Court dismissed the application for summary dismissal because it was not satisfied, to the requisite high degree of certainty, that the proceedings must fail or amount to an abuse of process: the question raised by the plaintiff is real, the Council is a proper contradictor, and the discretionary considerations do not compel refusal of relief at this stage despite the availability of alternative merits review.

Court Disposition

Summary dismissal application dismissed; orders for costs; matter to proceed to directions hearing for final hearing preparation

Orders

  • The first defendant's application for summary dismissal made by Notice of Motion of 31 July 2023 is dismissed.
  • The first defendant is to pay the plaintiff's costs.