Servier Laboratories (Aust.) Pty Ltd v Commonwealth of Australia [2009] FCA 31

Servier Laboratories (Aust.) Pty Ltd v Commonwealth of Australia [2009] FCA 31

Because the applicant abandoned all claims for relief, including its challenge to the validity of the retrospective amendments and its remaining claims for declarations or injunctions, there was no controversy left for determination and the amended application had to be dismissed. Given the applicant's abandonment of the proceeding, it was appropriate to order it to pay the respondents' costs incurred after 29 April 2008, when proceeding no. VID 859 of 2007 was recorded as settled and it would have been reasonable for the applicant to discontinue this proceeding as well; otherwise there was no order as to costs.

Jurisdiction
Australia
Judgment Date
28 January 2009
Procedural Posture
Judicial Review Proceeding Under the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B of the Judiciary Act 1903 (cth), With a Constitutional Challenge to Retrospective Amendments Later Raised and Abandoned / Final Judgment After the Applicant Abandoned All Claims for Relief
Outcome
Amended application dismissed.
Legal Topics
['pharmaceutical Benefits Scheme' 'substitution of Pharmaceutical Benefits' 'retrospective Legislation' 'acquisition of Property on Just Terms' 'choses in Action' 'judicial Review of Administrative Decisions or Conduct' 'costs Following Discontinuance or Abandonment']
['administrative Law' 'constitutional Law' 'health Law' 'costs'] ['pharmaceutical Benefits Scheme' 'substitution of Pharmaceutical Benefits' 'retrospective Legislation' 'acquisition of Property on Just Terms' 'choses in Action' 'judicial Review of Administrative Decisions or Conduct' 'costs Following Discontinuance or Abandonment']

Case Brief

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Procedural Posture

Judicial Review Proceeding Under the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B of the Judiciary Act 1903 (cth), With a Constitutional Challenge to Retrospective Amendments Later Raised and Abandoned / Final Judgment After the Applicant Abandoned All Claims for Relief

Legal Issues

  1. 1 ["Whether the Department exceeded any power under s 103(2A) of the National Health Act 1953 (Cth) by stating in the Schedule of Pharmaceutical Benefits that the applicant's products and other products were equivalent." 'Whether retrospective amendments made by the Health Legislation Amendment Act 2007 (Cth) deprived the applicant of relief or effected an acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution.' 'Whether leave to amend should be revoked in part so as to exclude allegations concerning choses in action underlying proceeding no. VID 859 of 2007.' 'What costs order should be made after the applicant abandoned the proceeding.']

Ratio Decidendi

Because the applicant abandoned all claims for relief, including its challenge to the validity of the retrospective amendments and its remaining claims for declarations or injunctions, there was no controversy left for determination and the amended application had to be dismissed. Given the applicant's abandonment of the proceeding, it was appropriate to order it to pay the respondents' costs incurred after 29 April 2008, when proceeding no. VID 859 of 2007 was recorded as settled and it would have been reasonable for the applicant to discontinue this proceeding as well; otherwise there was no order as to costs.

Court Disposition

Amended application dismissed.

Orders

  • ['The amended application be dismissed.' "The applicant pay the respondents' costs of the proceeding incurred after 29 April 2008." 'Otherwise, there be no order as to costs.']