Darnell v Stonehealth Pty Ltd [2022] FCAFC 76

Federal Court of Australia

Darnell v Stonehealth Pty Ltd [2022] FCAFC 76 Appeal from: Darnell v Stonehealth Pty Ltd (No 4) [2021] FCA 823

File number: QUD 263 of 2021

Judgment of: MARKOVIC, THOMAS AND STEWART JJ

Date of judgment: 11 May 2022

Catchwords: ADMINISTRATIVE LAW – appeal from Federal Court of Australia – where primary judge dismissed an application for judicial review brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) – where appellant seeks to quash the decisions of the Australian Community Pharmacy Authority (Authority) and the Secretary of the Department of Health to approve the first respondent's application under the National Health Act 1953 (Cth)(Act) to supply pharmaceutical benefits at certain premises – whether the primary judge erred in finding that the premises occupied by Coles at Flagstone Village Shopping Centre, Flagstone, Queensland (Coles Flagstone) was on 20 March 2020 operating as a "supermarket" for the purposes of s 5 and Item 130 of Sch 2 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Rules) – where Coles Flagstone was operating as a supermarket as required by the Rules – where the role played by "primary" in the definition of "supermarket" is only to identify the primary business of the retail store in question, namely selling groceries as opposed to selling other goods or providing services – whether the primary judge erred in failing to hold that the decision of the Authority was affected by materially false or misleading information – whether the primary judge's finding that the Authority's decision was not affected by misleading or false statements made by the first respondent was "glaringly improbable" or contrary to compelling inferences to be drawn having regard to the underlying facts – where primary judge's findings were open on the evidence – whether the opening of Coles Flagstone was a sham – where strategy devised by the first respondent was permitted under s 90 of the Act and did not "cross the line" – whether the primary judge erred in finding that the Authority was entitled to take into account information provided to it on 11 November 2020 (11 November Letter), despite the operation of s 9 of the Rules – where it was open to find that the 11 November Letter was provided to the Authority at the request of the first respondent rather than on its behalf or as its agent – appeal dismissed