Darnell v Stonehealth Pty Ltd (No 4) [2021] FCA 823

Federal Court of Australia

Darnell v Stonehealth Pty Ltd (No 4) [2021] FCA 823 File number: QUD 51 of 2021

Judgment of: LOGAN J

Date of judgment: 21 July 2021

Catchwords: ADMINISTRATIVE LAW – application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth) to quash the decisions of the Australian Community Pharmacy Authority and the Secretary to the Department of Health to approve the first respondent's application under the National Health Act 1953 (Cth) to supply pharmaceutical benefits at a particular premises – where first respondent's application had been made at 12.04am on 20 March 2020 – where item 130(b) of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) (the Rules) required a "supermarket" within 500m from the proposed premises of the pharmacy on the day of application was made – where the relevant Coles supermarket had a "soft opening" the night of 20 March 2020 as a result of the COVID-19 pandemic – where the Coles supermarket had publicly advertised an opening celebration on 21 March 2020 – whether the Authority could be satisfied that a "supermarket" had commenced trading on 20 March 2020 – where definition of "supermarket" was considered by the Full Court in Stonehealth Pty Ltd v ZAA Ventures Pty Ltd as Trustee for the ZAA Investment Trust [2020] FCAFC 188 – where the Authority requested further information from the parties – where the Authority received a statutory declaration from a manager of Coles stating that the supermarket opened on 20 March 2020 – whether the Authority could consider a letter from that Coles manager pursuant to rule 9 of the Rules – where the letter was sent by a third party and the rule inapplicable – whether the decision of the Authority had been affected by the fraud of the first respondent and Coles – where the "soft opening" was alleged to be a "sham" by the applicant – where permissible to adopt "stratagems" and "clever tactics" in dealing with the Authority – where on a consideration of the evidence before the Court the applicant failed to prove allegation of fraud – application dismissed