Assarapin v Australian Community Pharmacy Authority

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FEDERAL COURT OF AUSTRALIA

Assarapin v Australian Community Pharmacy Authority [2016] FCAFC 9

Appeal from: Assarapin v Australian Community Pharmacy Authority [2015] FCA 268
File number: NSD 447 of 2015
Judges: BROMBERG, RANGIAH AND PERRY JJ
Date of judgment: 3 February 2016
Catchwords:

ADMINISTRATIVE LAW – where pharmacy approved under s 90 of the National Health Act 1953 (Cth) located in a building within a shopping centre which was demolished – where approval was “deactivated” pending relocation to new premises under s 98 of the National Health Act 1953 (Cth) – whether error of law in Secretary’s decision to grant approval for the new premises under s 90 of the National Health Act 1953 (Cth) and decision of the Australian Community Pharmacy Authority (the Authority) to recommend the grant of approval

STATUTORY INTERPRETATION - whether it was open to the Authority to find that the approved premises ceased to be “within a facility” within the meaning of item 124 of Sch 1 of Part 1 the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (the Rules) on demolition of the building where they were located – where no error in decision of the primary judge upholding the recommendation and grant of approval

ADMINISTRATIVE LAW – cross-appeal as to whether the appellants were “persons aggrieved” for the purposes of s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether it was necessary for the appellants to establish that they were financially worse off – where the Rules assume that other approved pharmacies proximate to the proposed premises will be adversely affected
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(4), 5, 13, 16

Community Services and Health Legislation Amendment Act 1990 (Cth)

Judiciary Act 1903 (Cth) s 39B

National Health (Australian Community Pharmacy Authority Rules) Determination 2011 ss 5, 10, 11, item 124 of Pt 1 of Sch 1, Pt 2 of Sch 1

National Health (Pharmaceutical Benefits) (Conditions of approval for approved pharmacists) Determination 2007 cl 8

National Health Act 1953 (Cth) ss 85, 87, 90, 98, 99, 99J, 99K, 99L

The Fifth Community Pharmacy Agreement between The Commonwealth and The Pharmacy Guild of Australia dated 3 May 2010
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27

Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462

Pharmacy Restructuring Authority v Chatfield (1993) 43 FCR 418

Pharmacy Restructuring Authority v Martin (1994) 53 FCR 589

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50

Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421
Date of hearing: 19 November 2015
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human…
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Details
Case
[2016] FCAFC 9
Decision Date

CaseChat Overview and Summary

The case of Assarapin v Australian Community Pharmacy Authority involved the appellants, a group of pharmacy owners, challenging the decision of the Australian Community Pharmacy Authority (the Authority) to recommend and the Secretary to grant approval for a new pharmacy to be established. The pharmacy in question was initially approved under the National Health Act 1953 (Cth) but was located in a building that was subsequently demolished within a shopping centre. The key legal issue before the court was whether the Authority was correct in its interpretation of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (the Rules) when it found that the approved premises had ceased to be "within a facility" upon demolition, thus satisfying the requirement of item 124 of Schedule 1 of the Rules. The court had to determine if this interpretation was a permissible one under the Rules and if the Authority's decision was lawful.

The court found that the Authority's interpretation of the Rules was correct and that there was no error of law in the Authority's decision. The court reasoned that the term "existing premises" in item 124 of the Rules could be understood as the premises subject to an existing approval, and since the premises were not within a facility at the time of the Authority's decision due to the demolition, the requirements of the Rules were satisfied. Furthermore, the court dismissed the appellants' cross-appeal regarding their standing to challenge the decision, holding that they did not need to establish financial detriment to be considered "persons aggrieved" under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The court ultimately dismissed both the appeal and the cross-appeal, affirming the Authority's decision to recommend and the Secretary's decision to grant approval for the new pharmacy premises. Costs were reserved for later determination.

Orders

Orders of the court

1. The appeal is dismissed.

2. The cross-appeal is dismissed.

3. Costs are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Lin sought approval in accordance with item 124 of Part 1 of Schedule 1 to the Rules for the purpose of obtaining a recommendation as to whether or not the approval should be given under s 90. The Authority also received comments and supporting documents from what it described as “an interested third party pharmacists’ agent” on 26 August 2013. 2.4 The Authority’s decision to recommend approval and the decision of the Secretary On 30 August 2013, the Authority decided to recommend that Mr Lin’s application be approved. It gave written reasons on 24 September 2013 for its decision in response to a request under s 13 of the ADJR Act. It was not in dispute that when approval was given for Mr Lin to supply pharmaceutical benefits from the approved premises under s 90, those premises were in a facility. However, the Authority found at the time of its decision that “the existing premises are not in a facility” and therefore that the requirement in item 124(2)(a) of the Rules was met. Absent that finding, it was common ground that the requirements prescribed by item 124 would not have been satisfied and the new premises would not otherwise have satisfied the proximity requirements in the Rules because the new premises were not located at least 500m in a straight line from the appellants’ premises (item 124(2)(b)). In finding that item 124(2)(a) was met, the Authority explained that: 26.The Authority found that the Lessor gave the Lessee notice to vacate shops 2034, 2035, 2036 and 2036B and to quit and deliver up possession of the premises to the Lessor within 12 months of the date of the notice.… 28.The Authority found that the existing premises have been demolished and are unavailable for occupation and therefore no longer part of the Westfield Miranda Shopping Centre.29.The Authority considered the 10 photographs of the existing premises.30.The Authority found that the existing premises have been demolished.31.The Authority was satisfied that, based on the Lease between the Lessee and the Lessor, the Deed of Agreement between the Lessee and the Applicant, the letter from the Practice Manager of the Miranda Medical Centre, including the ‘Demolition Notice’ from the Lessor, the letter from the Applicant’s agent and the 10 photographs, the existing premises are not in a facility.32.As the Authority was satisfied that the existing premises are not in a facility, it did not go on to consider the distance from the proposed premises to the nearest approved premises. (Emphasis added.) In a letter to the Authority and referred to at [27] of its reasons, the solicitors for Mr Lin pointed to the difficulties posed in any event in characterising the former premises as being located within the shopping centre as it was in a building “located adjacent to (rather than in) what would reasonably and generally be described as the Westfield Miranda Shopping Centre”. However, the letter submitted that, irrespective of that issue, “there can be no doubt that, even if they were [within the shopping centre prior to demolition], the former premises are no longer located in Westfield Miranda Shopping Centre.”

Ratio Decidendi

Legal Principle Established

On 9 September 2013 following receipt of the Authority’s recommendation, the Secretary granted an approval to Mr Lin to supply pharmaceutical benefits at the new premises under s 90 of the Act.3. CONSIDERATION3.1 Construction of item 124 of Part 1 of Schedule 1 to the Rules As the primary judge held, the critical finding by the Authority was on a mixed question of fact and law, namely, that the approved premises no longer formed part of a shopping centre and therefore were not in a facility for the purposes of item 124 because they had been demolished and were unavailable for occupation. We also agree that the Authority did not hold that merely because the approved premises were demolished, it followed that they could not be within the shopping centre (reasons below at [35]). While the Authority’s reasons could have benefited from greater elaboration, it can fairly be inferred as did the primary judge, that the Authority applied the definition of “shopping centre” given, among other things, that the definition was attached to the Authority’s statement of reasons. The appellants initially contended in their written submissions that the effect of “deactivating” Mr Lin’s s 90 approval with respect to his existing premises under s 98(2) was to preserve the status quo as at the time of “deactivation” in relation to the second respondent’s existing approval for that period (see also grounds 1, 2 and 3, notice of appeal). As a consequence, the appellants submitted that, while the Rules must be applied as at the time of decision, the Authority must be satisfied that at the time of “deactivation” the requirement that the “existing premises are not in a facility” in item 124 was met. However, that argument had, with respect, little to commend it and was rightly abandoned at the hearing of the appeal. At the hearing, counsel for the appellants contended instead that the term “existing premises” in item 124 must be read as the premises subject to an existing approval in line with the definition of that phrase in s 10 of the Rules. As earlier mentioned, it was not in dispute that those premises, at the time of approval, were within a facility. As a consequence, the appellants submitted that the Authority wrongly held that the existing premises so defined were not within a facility because that part of the facility where the premises were located had subsequently been demolished. It was the approval which was said to be important; the fact of demolition was irrelevant. As the primary judge held at [37], it is implicit in this submission that if the approved premises were within a shopping centre when the s 90 approval was granted, they must be taken to remain within a shopping centre for the purposes of determining any later application for approval under item 124 of the Rules, subject to the qualification by the appellants that there remained a shopping centre in existence. Save, however, for that qualification, the appellants’ argument appears to be the same as that summarised by the primary judge at [32]-[33] of his reasons notwithstanding that ground 3 of the notice of appeal alleges that the primary judge erred in attributing that argument to the appellants.