Freedom Pharmaceutical Pty Ltd v Minister for Health (No 2) [2021] FCA 1250

Freedom Pharmaceutical Pty Ltd v Minister for Health (No 2) [2021] FCA 1250

The Hardiman principle did not disentitle the Minister from the usual costs order. Ms Rouchdi, the apparent natural contradictor, filed a submitting appearance, making it desirable for the Minister to appear and assist the Court. Given the seven review grounds, including legal unreasonableness, irrelevant consideration and statutory construction issues, the Minister could not properly assist merely by explaining powers and procedures. The Minister's role was appropriate in the absence of another contradictor, a Minister is not directly analogous to a tribunal, and Freedom had not objected to the Minister's active participation during the proceedings. Costs therefore followed the event and...

Jurisdiction
Australia
Judgment Date
15 October 2021
Procedural Posture
Costs Determination Following Dismissal of Application for Judicial Review / Determined on the Papers After Submissions as to Costs
Outcome
The applicant was ordered to pay the first respondent's costs of the proceedings.
Legal Topics
['costs Following the Event' 'hardiman Principle' 'judicial Review of Ministerial Decision' 'pharmaceutical Benefits Approval Under the National Health Act 1953 (cth)']
['administrative Law' 'costs' 'health Law'] ['costs Following the Event' 'hardiman Principle' 'judicial Review of Ministerial Decision' 'pharmaceutical Benefits Approval Under the National Health Act 1953 (cth)']

Case Brief

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Procedural Posture

Costs Determination Following Dismissal of Application for Judicial Review / Determined on the Papers After Submissions as to Costs

Legal Issues

  1. 1 ["Whether the applicant should pay the Minister's costs after its judicial review application was dismissed." 'Whether the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman disentitled the Minister from obtaining costs because the Minister actively defended the judicial review proceeding.' "Whether the Minister's participation was appropriate where the second respondent filed a submitting appearance and did not act as a contradictor."]

Ratio Decidendi

The Hardiman principle did not disentitle the Minister from the usual costs order. Ms Rouchdi, the apparent natural contradictor, filed a submitting appearance, making it desirable for the Minister to appear and assist the Court. Given the seven review grounds, including legal unreasonableness, irrelevant consideration and statutory construction issues, the Minister could not properly assist merely by explaining powers and procedures. The Minister's role was appropriate in the absence of another contradictor, a Minister is not directly analogous to a tribunal, and Freedom had not objected to the Minister's active participation during the proceedings. Costs therefore followed the event and...

Court Disposition

The applicant was ordered to pay the first respondent's costs of the proceedings.

Orders

  • ["The applicant pay the first respondent's costs of the proceedings."]