Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bardsley-Smith v Penrith City Council (No 2) [2013] NSWCA 284 Hearing dates: On the papers Decision date: 30 August 2013 Before: McColl JA at [1]; Barrett JA at [2]; Sackville AJA at [3] Decision: Confirm that Order 7 made by this Court on 4 July 2013 has effect. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ORDERS - form of declaration and injunction restraining the retail sale of items from certain premises subject to exceptions for "PBS items, Prescription drugs and OTC drugs" Legislation Cited: National Health Act 1953 (Cth), s 84 Poisons and Therapeutic Goods Act 1966, Schedules 2, 3, 4, 5, 6, 8 Cases Cited: Bardsley-Smith v Penrith City Council [2013] NSWCA 200 Category: Consequential orders Parties: Janis Margaret Bardsley-Smith (First Appellant) Ian Patrick Stubbs (Second Appellant) Penrith City Council (First Respondent) Administration and Marketing Solutions Pty Limited (Second Respondent) Damien Michael Gance (Third Respondent) Representation: Counsel: J Robson SC with C R Ireland (Appellants) N M Eastman (Second and Third Respondents) Solicitors: McPhee Kelshaw Solicitors (Appellants) Gadens Lawyers (First Respondent) Rotstein Lockwood Reddy Lawyers (Second and Third Respondents) File Number(s): 2012/154959 Decision under appeal Citation: Bardsley-Smith & Anor v Penrith City Council [2012] NSWLEC 79 Date of Decision: 2012-04-18 00:00:00 Before: Sheahan J File Number(s): 40565 of 2009 Judgment 1McCOLL JA: I agree with Sackville AJA. 2BARRETT JA: I agree with Sackville AJA. 3SACKVILLE AJA: This Court delivered judgment on 4 July 2013, allowing an appeal from the Land and Environment Court ("L&E Court"): Bardsley-Smith v Penrith City Council [2013] NSWCA 200. The appellants challenged the validity of a development consent ("Consent") permitting the use of premises located within the Penrith SupaCenta ("Premises") as a "Chemist Warehouse". The appellants also challenged the lawfulness of the continued use of the Premises insofar as it involved the conduct of a large-scale retail pharmacy. 4The Court reached the following conclusions: * the Consent was to be construed as permitting the use of the Premises as a retail pharmacy only for the supply to members of the public of PBS items and OTC drugs (at [87]); * so construed, the Consent was valid (at [94]); * the current use of the Premises included use for a purpose prohibited under the relevant local environmental plan ("LEP"), namely a shop (at [118]); and * the current use of the Premises as a large-scale retail pharmacy was prohibited under the LEP (at [123]). 5In considering the orders that should be made, the Court took a number of matters into account, including the following: * the use of the Premises would not be unlawful if the retail pharmacy was confined to the supply of items covered by the Pharmaceutical Benefits Scheme ("PBS" items) and over-the-counter ("OTC") drugs (at [119]); * in view of the conclusions reached on the appeal, it would be necessary for a discretionary defence pleaded by the Respondents, but not addressed by the primary Judge, to be dealt with by remitting the matter to the L&E Court (at [126]); * the notice of appeal was deficient because it sought orders only on the basis that the Consent was void and did not seek orders reflecting the conclusions actually reached by the Court (and which had been fully argued) (at [124]); and * subject to the Respondents' discretionary defence, the appellants were entitled to an injunction, but in order for the injunction to be framed with sufficient specificity it was necessary for the expression "OTC drugs" to be carefully defined (at [127]). 6The orders made by the Court were as follows: 1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 18 April 2012. 3. Direct the appellants to file an amended notice of appeal within seven days. 4. Direct the parties to file within 14 days an agreed draft of the proposed injunction referred to at [127] of this judgment. 5. In the absence of agreement, the appellants file within 14 days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 6. The Respondents file within a further seven days a draft of the injunction they propose, together with submissions in support not exceeding three pages in length. 7. Subject to the parties' compliance with Orders 3 - 6 above and to any further order of this Court, the matter be remitted to the Land and Environment Court to deal with paragraph 4(h) of the Amended Points of Defence and otherwise the matter to be dealt with in conformity with this judgment. 8. The Respondents pay the appellants' costs of the appeal. 9. The costs of the proceedings in the Land and Environment Court be determined by that Court. 10. The Respondents, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. 7After some delay, the parties filed the documents referred to in the Orders. The Respondents went beyond the terms of the Orders by filing an affidavit by a pharmacist which expresses opinions about the meaning of the expression "OTC drugs". 8The orders proposed by the appellants in lieu of the orders made by the primary Judge are as follows: 3. ... (a) Declaration that Development Consent DA 08/1288 ("the Consent") granted by the First Respondent to the Second Respondent on 20 February 2009 does not permit the retail sale and supply to members of the public, at the Premises, of items other than PBS items, Prescription drugs and OTC drugs. (b) Order that the Second Respondent, the Third Respondent and any agent, servant or employee of either the Second Respondent or Third Respondent be restrained from doing any act that constitutes the retail sale and supply to members of the public of items, other than PBS items, Prescription drugs and OTC drugs, to members of the public, at the Premises. 4. In these Orders, the following terms have meanings as defined: "Premises" means "Tenancy 230" (located within the "Penrith SupaCenta", Jamisontown) "PBS items" has the same meaning as the term "pharmaceutical benefits" as defined in s 84 of the National Health Act 1953 (Cth). "Prescription drugs" means drugs listed on Schedules 4, 5 and 8 of the Poisons and Therapeutic Goods Act 1966. "OTC drugs" means drugs listed on Schedule 2 and 3 of the Poisons and Therapeutic Goods Act 1966. 9In their written submissions, the appellants explain by reference to the legislation and evidence given at the trial that: * Schedules 2 and 3 to the Poisons and Therapeutic Goods Act 1966 ("Poisons Act") list drugs that may be sold over the counter, generally with direct supervision by a pharmacist; and * Schedules 4, 5 and 8 comprise drugs which require a prescription from a medical practitioner, although they are not necessarily PBS items (that is, items subsidised under the Commonwealth's PBS scheme). 10The Respondents submit that the definition of "OTC drugs" for the purpose of any injunction should be remitted to the L&E Court. Failing that, they contend that: * "Prescription drugs" should be defined to mean the items in Schedules 4, 5 and 6 to the Poisons Act; and * "OTC drugs" should be defined to mean: any item that is an "OTC medicine" as defined in the Therapeutic Goods Regulations 1990 (Cth) as amended from time to time or is an item which is associated with the use of a Pharmaceutical benefit or a Prescription drug. 11Schedule 6 to the Poisons Act lists substances used for agricultural, industrial and other non-medical purposes. I assume, therefore, that the reference to Schedule 6 in the Respondents' submissions is an error. 12The judgment contemplated that this Court would settle the terms of an injunction, although no final order can be made until the L&E Court deals with the Respondents' discretionary defence. There is no good reason why this Court should not do what is proposed in the judgment. The issue left unresolved by the judgment was not what pharmacists would understand by the expression "OTC drugs", but how an injunction should be drafted so as to be sufficiently clear in its terms and reflect the Court's reasoning. 13The appellants' proposed orders meet these criteria, while the Respondents' proposed orders do not. The judgment made it clear that only a limited class of OTC drugs could be dispensed consistently with the Consent, namely those closely related to the supply of pharmaceutical benefits (see at [80], [82], [93]). The appellants' draft orders achieve both precision and the necessary connection with the supply of PBS items. 14By contrast, the Respondents' proposed orders are uncertain in scope and operation. The proposed orders also would permit them to sell products having little of nothing to do with PBS items. 15The only order I propose at this stage is as follows: Confirm that Order 7 made by this Court on 4 July 2013 has effect. 16If, however, the L&E Court rejects the Respondents' discretionary defence, the following orders and declaration should be made by the L&E Court: 1. Declare that Development Consent DA 08/1288 ("the Consent") granted by the First Respondent ("the Council") to the Second Respondent ("AMS") on 20 February 2009 does not permit the retail sale and supply to members of the public at Tenancy 230 within the "Penrith SupaCenta", Jamisontown ("the Premises") of items other than PBS items, Prescription drugs and OTC drugs. 2. Order that AMS, the Third Respondent ("Mr Gance") and any agent, servant or employee of either AMS or Mr Gance be restrained from doing any act that constitutes the retail sale and supply to members of the public of items other than PBS items, Prescription drugs and OTC drugs. 3. In these orders the following definitions apply: "PBS items" has the same meaning as "pharmaceutical benefits" as defined in s 84 of the National Health Act 1953 (Cth); "Prescription drugs" means any drug listed in Schedules 4, 5 and 8 to the Poisons and Therapeutic Goods Act 1966 ("Poisons Act"), as in force from time to time; "OTC drugs" means any drug listed in Schedules 2 and 3 to the Poisons Act as amended from time to time. 17If the Respondents' discretionary defence succeeds in the L&E Court, it will be a matter for that Court to decide whether it is appropriate to make a declaration in the terms set out above. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2013