Slopen Main Pty Ltd (Trustee) v Hope [2017] FCAFC 203

Slopen Main Pty Ltd (Trustee) v Hope [2017] FCAFC 203

The appellant was denied procedural fairness because the primary judge set aside the Authority's approval recommendation on the basis that the appellant, through its solicitor, deliberately or recklessly provided false or misleading information, when the respondents' pleaded and conducted case was at most one of misleading by omission and the appellant was not given a meaningful opportunity to meet the active-misleading allegations. The denial could have made a difference. However, relief was refused as futile because the Authority had already reconsidered the application after remittal and recommended against approval on grounds confined to the Determination criteria, so the appeal was...

Jurisdiction
Australia
Judgment Date
12 December 2017
Procedural Posture
Administrative Law Appeal Concerning Approval to Supply Pharmaceutical Benefits and Procedural Fairness / Appeal From Orders Setting Aside the Australian Community Pharmacy Authority's Recommendation Decision
Outcome
Appeal dismissed.
Legal Topics
['procedural Fairness' 'public Law Fraud' 'pharmaceutical Benefits Approvals' 'australian Community Pharmacy Authority Recommendations' 'discretion to Refuse Relief for Futility' 'costs Following the Event']
['administrative Law' 'costs'] ['procedural Fairness' 'public Law Fraud' 'pharmaceutical Benefits Approvals' 'australian Community Pharmacy Authority Recommendations' 'discretion to Refuse Relief for Futility' 'costs Following the Event']

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Procedural Posture

Administrative Law Appeal Concerning Approval to Supply Pharmaceutical Benefits and Procedural Fairness / Appeal From Orders Setting Aside the Australian Community Pharmacy Authority's Recommendation Decision

Legal Issues

  1. 1 ['Whether the primary judge denied the appellant procedural fairness by making adverse findings of fraud in a public law sense based on alleged provision of false or misleading information that was not part of the pleaded or argued case.' "Whether the denial of procedural fairness could have made a difference to the primary judge's decision." 'Whether relief should be refused as futile because, after remittal and without a stay, the Authority made a second recommendation against approval.' "Whether the respondents should pay part of the appellant's appeal costs despite the appeal being dismissed on discretionary grounds."]

Ratio Decidendi

The appellant was denied procedural fairness because the primary judge set aside the Authority's approval recommendation on the basis that the appellant, through its solicitor, deliberately or recklessly provided false or misleading information, when the respondents' pleaded and conducted case was at most one of misleading by omission and the appellant was not given a meaningful opportunity to meet the active-misleading allegations. The denial could have made a difference. However, relief was refused as futile because the Authority had already reconsidered the application after remittal and recommended against approval on grounds confined to the Determination criteria, so the appeal was...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs and the second respondent's costs of and incidental to the appeal, as assessed or agreed."]