NSW Supreme Court judge decides Pharmacy Guild plaintiffs will not see a 50% reduction in costs as requested
The Pharmacy Guild will pay usual costs after legal proceedings brought against Ramsay Health Care to test the application of pharmacy ownership laws were summarily dismissed by the Supreme Court of NSW in August.
The Guild and three pharmacist owner co-plaintiffs sought declarations that Ramsay Health Care and Ramsay Pharmacy Retail Services held financial interests in certain pharmacies, which would have amounted to a contravention of the Health Practitioner Regulation National Law (NSW).
This would have amounted to a declaration as to past and continuing commission of a criminal offence, found Justice Julie Ward, Chief Judge of the Supreme Court NSW Equity Division.
In her August decision, Justice Ward said it was “not appropriate” for the proceedings to be brought in the context of a civil suit.
“There is jurisdiction for a civil court to make a declaration in relation to criminality … however the making of such a declaration is a matter of discretion and, as the case law suggests, is only in ‘exceptional cases’.”
Justice Ward was not persuaded that the Pharmacy Guild had special interest to seek declaratory relief beyond that of the general public.
“Its role as a representative of the community pharmacy members it represents does not persuade me otherwise,” she said.
This month, the Guild plaintiffs sought a reduction in costs they be ordered to pay, arguing that the costs be apportioned across the different issues raised in the proceedings.
“They submit that an appropriate order would be that they pay 50% of the defendants’ costs on the agreed ordinary basis,” said Justice Ward.
The plaintiffs submitted that the significant majority of costs incurred in the proceedings were associated with two issues—standing and abuse of process—on which they maintain in substance they would have succeeded, but for the determination made as to the third issue in the proceedings—the appropriateness of declaratory relief, she explained.
The Guild sought orders reducing costs payable, such that they not be required to pay the portion of costs related to the defendants’ complaints about standing and abuse of process.
The Ramsay defendants objected, maintaining there were no special circumstances to warrant departure from the general rule.
“It is noted that the proceedings were dismissed following an interlocutory hearing which lasted only one day of court time,” said Justice Ward.
“It is submitted [by the Ramsay defendants] that this was not a lengthy trial, appeal or other hearing which might justify the close examination of the different issues in order to determine whether to exercise a discretion to depart from the usual rule as to costs.”
Ramsay also argued there was no evidential basis for the 50% reduction the plaintiffs proposed, and no identification of the time taken or costs referable to the issues upon which the defendants did not succeed.
Justice Ward said she was “not persuaded” that the case warranted an apportionment of costs.
She ordered the plaintiffs to pay the defendants’ costs of the proceedings “on the ordinary basis”.