B Hon & K Quach & S Stephen & N Zafiropoulos and Australian Community Pharmacy Authority
[2025] ARTA 2157
•9 October 2025
B Hon & K Quach & S Stephen & N Zafiropoulos and Australian Community Pharmacy Authority [2025] ARTA 2157 (9 October 2025)
ReviewNumber: 2024/9802, 2025/2342
Applicant/s: B Hon & K Quach & S Stephen & N Zafiropoulos
Respondent: Australian Community Pharmacy Authority
Tribunal Numbers: 2024/9802
2025/2342
Tribunal:General Member J Ross
Place:Canberra
Date:9 October 2025
Decision:The Tribunal affirms the decisions under review.
Statement made on 09 October 2025 at 12:25pm
Catchwords
PHARMACIST – approval to supply pharmaceutical benefits – new additional pharmacy – 4 full-time prescribing medical practitioners practising – at all relevant times
Legislation
National Health Act 1953 (Cth) ss 90, 99K, 99L, 105AD
National Health (Australian Community Pharmacy Authority Rules) Determination 2018
s 5, s 10, s 11, Schedule 1 Part 2 – Item 132Cases
St Mary Health & Community Services Pty Ltd and Australian Community Pharmacy Authority [2016] AATA 673
Wong and Australian Community Pharmacy Authority [2017] AATA 646
Issa and Australian Community Pharmacy Authority [2012] AATA 374
Ranallo v Australian Community Pharmacy Authority [2009] FCA 113
Secondary Materials
Explanatory Statement to the National Health (Australian Community Pharmacy Authority Rules) Determination 2018
Statement of Reasons
INTRODUCTION
The Applicants seek the review of two decisions made by the Australian Community Pharmacy Authority (Respondent or Authority) to recommend that the Secretary of the Department of Health and Aged Care (Secretary) not approve their applications to supply pharmaceutical benefits under s 90 of the National Health Act 1953 (NH Act) because the relevant requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2018 (Cth) (Rules) were not met.
(a)In respect of the first decision dated 15 November 2024 (First Reviewable Decision) the Authority found that items 10(3)(b), 10(3)(e) and item 132(b) of Part 2 of Schedule 1 of the Rules were not met.
(b)In respect of the second decision dated 21 February 2025 (Second Reviewable Decision) the Authority found that item 132(b)(i) of Part 2 of Schedule 1 of the Rules was not met.
ISSUE FOR DETERMINATION
By the time of the hearing, only one requirement remained to be met which was item 132(b)(i) of the Rules – that there were at least four full-time equivalent prescribing medical practitioners practising in the same town as the proposed premises in Bright, Victoria.
The Authority was satisfied that items 132(a) and 132(b)(ii) of the Rules and the general criteria at s 10(3) of the Rules had been met.
I have decided that this requirement that, in the same town as the proposed premises, there are at least the equivalent of four full-time prescribing medical practitioners practising is not met.
RELEVANT LEGISLATION
Section 90(1) of the NH Act provides that upon application by a pharmacist the Secretary may approve the supply of pharmaceutical benefits at a particular premises.
Section 90(3A) of the NH Act provides that subject to limited exceptions an application must be referred to the Authority. The exceptions do not apply in this matter which means that under s 99K of the NH Act, the Authority was required to consider the applications and make a recommendation about whether or not they should be approved.
Section 99K(2) of the NH Act requires the Authority to comply with rules determined by the Minister under s 99L of the NH Act when making its recommendations.
Section 90(3B) provides that the Secretary can only approve an application if the Authority has recommended that the application be granted.
Section 10(2) of the Rules provides that for an application that does not involve the cancellation of an existing approval, the Authority must recommend that an application be approved under s 90 of the NH Act, if relevantly for this matter, the requirement in item 132 of Schedule 1 Part 2 is met:
(a) the proposed premises are:
(i) in the same town as an approved premises; and
(ii) at least 200 m, in a straight line, from the nearest approved premises; and
(iii) at least 10 km, by the shortest lawful access route, from any
approved premises other than the approved premises mentioned
in subparagraph (ii); and
(b) the Authority is satisfied that, at all relevant times, in the same town as
the proposed premises are:
(i) the equivalent of at least 4 full-time prescribing medical practitioners practising; and
(ii) one or 2 supermarkets that have a combined total gross leasable area of at least 2,500 m2
Section 11 of the Rules provides that the Authority must recommend that an applicant not be approved if a requirement in s 10 that applies in relation to the application is not met.
Section 5 of the Rules contains definitions for ‘all relevant times’, ‘full-time’ and ‘prescribing medical practitioner’:
all relevant times, in relation to an application, means:
(a) the day on which the application was made; and
(b) the day on which the application is considered by the Authority.
full‑time means:
(a) for a prescribing medical practitioner—providing the services of a prescribing medical practitioner for 38 hours in a week; or
(b) for a PBS prescriber—providing the services of a PBS prescriber for 38 hours in a week.
prescribing medical practitioner means a medical practitioner who provides general practice services to the community in which the medical practitioner practises, including the issuing of prescriptions for pharmaceutical benefits.
proposed premises, in relation to an application, means the premises at which the applicant proposes to supply pharmaceutical benefits.
Note 2 to s 5 refers readers to the definition of medical practitioner in s 4(1A) of the NH Act and s 3(1) of the Health Insurance Act 1973 (Cth). Medical practitioner in the latter Act means a person who is registered under the National Law in the medical profession.
EVIDENCE BEFORE THE TRIBUNAL
The evidence put before the Tribunal by the Respondent in relation to the issue for determination was documents produced under summons from Bright Medical Centre Pty Ltd (BMC) in the form of an email dated 28 May 2025.[1]
[1] Exhibit R1.
The evidence put before the Tribunal by the Applicant in relation to the issue for determination is:
(a)contract for Public Patient Services 2022-2025 between Alpine Health and BMC[2]
[2] Exhibit A1.
(b)letter from Health Legal to the Tribunal regarding summons issued to Alpine Health to produce documents dated 2 July 2025[3]
[3] Exhibit A2.
(c)Alpine Health VMO roster information for week commencing 2 September 2024, 21 October 2024 and 12 May 2025[4]
[4] Exhibit A3.
(d)BMC email containing details of on call roster for 14–27 October 2024[5]
[5] Exhibit A4.
(e)BMC email containing details of on call roster 5–18 May 2025[6]
[6] Exhibit A5.
(f)Screenshot of BMC website ‘General Practitioners’ page taken 20 July 2025[7]
(g)Letter sent from the Applicants to BMC regarding number of full-time prescribing medical practitioners dated 8 March 2025[8]
(h)BMC newsletter dated October 2024 to November 2024 which lists practice doctors[9]
(i)Response from BMC advising that no further information will be provided dated 11 March 2025[10]
(j)Copy of the summons to produce documents at or before 2 April 2025[11]
(k)BMC response to summons to produce documents dated 12 May 2025[12]
(l)Copy of the summons to produce documents at or before 4 June 2025[13]
(m)Documents produced under summons from BMC email dated 28 May 2025[14]
(n)Email to the Respondent from the Applicant attaching the summons documents dated 9 June 2025[15]
(o)The Authority’s response to the email.[16]
[7] Exhibit A6.
[8] Exhibit A7.
[9] Exhibit A8.
[10] Exhibit A9.
[11] Exhibit A10.
[12] Exhibit A11.
[13] Exhibit A12.
[14] Exhibit A13.
[15] Exhibit A14 also Exhibit R1.
[16] Exhibit A15.
Relevant aspects of the evidence before the Tribunal will be analysed and referred to below.
PARTIES’ SUBMISSIONS
Applicants
The Applicants contend that the combination of the information received by summons from BMC and Alpine Health ‘when read together’ is probative evidence in support of their application. The Applicants contend that the evidence they have provided displays that BMC is indisputably a 10 general practitioner medical centre.[17]
[17] Exhibit A8 and Exhibit A6.
The Applicants contend that the information on the number of hours providing services provided by BMC is incomplete as it consisted of ‘consulting hours’ and not ‘general practice hours’ leaving out scheduled leave and hours spent engaged in patient administration.[18] It is also contended that there is no exclusion in the Rules on counting general practising hours involved in administration in relation to patients and that in Wong and Australian Community Pharmacy Authority[19] the Tribunal found scheduled leave is included in the definition of general practising hours.[20] It is further contended that the Respondent has accidentally equated consulting hours with general practice hours and that the Rules distinguish between clinical administration which is included in the calculation and non-clinical administration which is not.[21]
[18] Updated Applicant’s Statement of Issues, Fact and Contentions (ASIFC), p. 6–7.
[19] [2017] AATA 646 at [58].
[20] ASFIC, p. 7.
[21] Ibid, p9.
The Applicants also contend that the contract for Public Patient Services 2022-2025 between Alpine Health and BMC is evidence that the requirement in item 132(b)(i) of the Rules has been met as this legally binding contract has been in force during the entire period of all applications made by the Applicants.[22] It is contended that in Schedule 1 of the contract the terms of the working hours of BMC medical practitioners have been identified.[23] In addition, roster information for the periods of 2–8 September 2024, 14–27 October 2024 and 12–18 May 2025 and a table of practitioners providing on-call services and their provider numbers has been obtained from Alpine Health.[24] Further, an email with roster information from BMC details practitioner leave.[25] It is further contended that these hours are an activity of a kind described in Ranallo v ACPA [2009] FCA 113.[26]
[22] Exhibit A1.
[23] ASFIC, p5.
[24] Exhibit A2.
[25] Exhibit A3.
[26] Ibid.
The Applicants contend that the Authority’s insistence on having all evidence available at both the date of lodgement and the hearing is unreasonable where data collection is obstructed.[27] However, despite obstruction, the Applicants contend that the data that is available shows they crossed the 152-hour threshold at the time of hearing and within 72 hours of submission.[28] As such, they submit that the threshold test is met on both temporal benchmarks.[29] It is further contended that information provided shows there were 152.5 consulting hours during the week 12–18 May 2025.[30]
[27] Ibid, p. 9.
[28] Ibid, p. 17
[29] Ibid.
[30] Ibid.
The Applicants also put forward a number of public policy considerations in relation to their applications:
(a)that the intent of Act and the Rules is to make a genuine assessment of community need which should not grant veto power to a single medical practice
(b)that the ‘wilful obstruction’ by BMC should not deprive them of the ability to demonstrate that requirements are met, and
(c)the approval of a second pharmacy in Bright will support regional healthcare access and benefits the public interest.[31]
[31] ASIFC, p. 10.
Respondent
To satisfy item 132(b)(i) of the Rules, the Respondent contends that the Applicants must demonstrate that there was at least 152 hours (4 x 38 hours) spent by medical practitioners providing general practice services to the community of Bright, at each of the following times:[32]
(a)In respect of the First Reviewable Decision: the week of 2–8 September 2024 (being the week in which the application was made on 5 September 2024); and the week during which the Tribunal makes its decision.[33]
(b)In respect of the Second Reviewable Decision: the week of 21–27 October 2024 (being the week in which the application was made on 22 October 2024); and the week during which the Tribunal makes its decision.[34]
[32] Respondent Statement of Issues, Facts and Contentions (RSIFC), p. 7.
[33] Ibid, p. 8.
[34] Ibid.
The Respondent contends that based upon the information currently before the Tribunal, the Applicants cannot succeed because the information shows that the 99.75 and 101 hours worked by prescribing medical practitioners at BMC during the weeks the Applicants made their applications were substantially less than the 152 hours required to meet item 132(b)(i) of the Rules.[35]
[35] Ibid.
The Respondent contends there is no evidence before the Tribunal about the number of hours worked by prescribing medical practitioners at Alpine Health. In its Supplementary Statement of Issues, Facts and Contentions (SSIFC) the Respondent submits that the ‘Contract for Public Patient Services’ and the other information obtained from Alpine Health does not contain a record of the hours spent delivering medical services.[36] Further, it is contended that it is not open to the Tribunal to consider on a presumptive basis the hours that may have been worked by prescribing medical practitioners at Alpine Health during the relevant times.[37]
[36] Supplementary Statement of Issues, Facts and Contentions (SSIFC) at [12].
[37] Ibid.
The Respondent explains this is because Alpine Health delivers urgent care services under a nurse-led clinic model where general practitioners deliver urgent care services on an on-call basis and may be involved in the provision of care by phone, video or in-person.[38] The Respondent submits that, in this context only hours spent delivering medical services, such as treating patients, ought to contribute towards the 152 hours required to meet item 132(b)(i) of the Rules and hours spent on-call, but not delivering medical services, ought not contribute towards the requirements.[39]
[38] Ibid.
[39] Ibid.
CONSIDERATION
The only issue for my consideration is whether on the day the applications were made to the Authority and on the day on which the application was considered by the Tribunal were there at least the equivalent of 4 full-time prescribing medical practitioners practising in Bright, Victoria. My task is to assess the evidence before me to determine if 152 hours were worked by prescribing medical practitioners at Bright at the relevant times.
The Parties referred me to several Court and Tribunal decisions:
(a)St Mary Health & Community Services Pty Ltd and Australian Community Pharmacy Authority (St Mary)[40]
(b)Wong and Australian Community Pharmacy Authority (Wong)[41]
(c)Issa and Australian Community Pharmacy Authority (Issa)[42]
(d)Ranallo v Australian Community Pharmacy Authority (Ranallo)[43]
[40] [2016] AATA 673.
[41] [2017] AATA 646.
[42] [2012] AATA 374.
[43] [2009] FCA 113.
The principles I glean from these decisions relevant to my assessment of the evidence are:
(a)Measurement of ‘full-time’ – the actual time prescribing medical practitioners spend in attendance, not the productivity or outputs of work attendance.[44]
(b)The kind of work – time spent consulting with patients at their home or in hospital is included when calculating the hours that a medical practitioner practises at a medical centre, however time spent consulting at other medical centres, working at a hospital (rostered duties), attending nursing homes and undertaking administration work for the medical centre/practice, such as staff rosters, is not counted towards the time spent practising at the medical centre/practice.[45]
(c)On call hours – when a medical practitioner is ‘on call,’ in the sense that they are making themselves available to see patients (when they could be doing other things) the time spent does not meet the legislative test for providing general practice services to the community.[46] However, once called those hours worked would need to be accurately recorded in order to eliminate the potential for overlap for when a medical practitioner is ‘on call’ and working in their surgery at the same time.[47]
(d)Leave – leave must be ‘genuine’ or ‘actual’ leave from work which is documented, rather than just time where the medical practitioner was not working.[48]
[44] Ranallo at [60]–[61].
[45] Wong at [61].
[46] Wong at [80].
[47] Ibid.
[48] Wong at [79] and [89].
The Parties also referred me to the Explanatory Statement to the Rules to explanations of the definition of ‘full-time’:
for a prescribing medical practitioner (or PBS prescriber), is intended to mean practising 38 hours in a calendar week. If one part-time medical practitioner practises 20 hours a week and another practises 18 hours a week, then they are considered equivalent to one full-time medical practitioner (i.e. combined they practice 38 hours). Similarly, if one medical practitioner practises 57 hours a week, then they are considered equal to one and a half full-time medical practitioners.
I am required to decide this issue on the evidence I have before me. I appreciate the significant efforts the Applicants have made to provide the Tribunal with probative evidence, however I find their evidence to be problematic for a range of reasons:
(a)The Schedule One to the Contract for Public Patient Services between Alpine Health and Bright Medical Centre[49] and the tabulated extracts from rosters and emails provided by Alpine Health[50] do not demonstrate the actual hours worked when on call nor provide details of how to account for the potential for overlap with other work performed. Further the BMC emails containing on call roster information do not detail the type of leave medical practitioners were taking.[51]
(b)The screenshot of BMC website ‘General Practitioners’ page[52] enables a headcount of medical practitioners to be made as at the date the screenshot was taken but not a calculation of the actual time those medical practitioners spend in attendance during the relevant period.
(c)Likewise, the BMC newsletter dated October 2024 to November 2024[53] enables a headcount calculation but not the calculation of actual hours spent consulting during the relevant period.
[49] Exhibit A1.
[50] Exhibits A3, A4 and A5.
[51] Exhibits A4 and A5.
[52] Exhibit A6.
[53] Exhibit A8.
I cannot be satisfied on the evidence present in the schedule to the contract, the documents containing roster information, the screenshot of the BMC website nor its newsletter that the medical practitioners: ‘individually worked 38 hours in any of the relevant weeks, or on average, or combined worked 152 hours in any of the relevant weeks, or on average’.[54]
[54] Wong at [81].
This leaves the evidence provided under summons for the periods 2–8 September 2024; 21–27 October 2024 and 12–18 May 2025.
The summons requested the names and provider number of any medical practitioners who ‘delivered services’ at BMC and the number of hours spent by each medical provider ‘working’ at BMC during each week in the relevant period.[55]
[55] Exhibit A10.
In response, BMC provided the Tribunal with names of General Practitioners and their consulting hours for the requested periods.[56]
[56] Exhibit R1.
While I find this evidence to be probative it shows that on the day the Applicants made their applications to the Authority that the required number of hours were not worked either individually or combined by BMC’s medical practitioners.
At the hearing, the Applicants contended that the information provided by BMC has little probative value because it does not show the actual hours the medical practitioners ‘worked’ or ‘practising hours’ it only shows the time they spent consulting. It also does not show if any of the medical practitioners were on leave (unlike the evidence contained in the on-call rosters for October which shows this to be the case). The Applicants also contended that the information does not show clinical administrative tasks which in their view should count as work. To support their contentions the Applicants’ cite Wong as authority at [60] and make reference to the ARPA handbook.[57] The Pharmacy Location Rules Applicant’s Handbook states that the evidence should state among other things the hours medical practitioners are available for appointments and also state whether or not the time includes times spent consulting at other medical centres not within the same town, working at a hospital on rostered duties, attending nursing homes and undertaking administration work for the medical centre or practice’ presumably in order to know whether to count or not count this work.[58] As stated above Wong is authority for the proposition that ‘time spent consulting with patients at their home or in hospital is included when calculating the hours that a medical practitioner practises at a medical centre’. [59] Wong is not authority for making a distinction between clinical and non-clinical administration.
[57] ASIFC, page 9.
[58] Department of Health and Aged Care, Pharmacy Location Rule Applicant’s Handbook, v. 9, January 2024, p.40.
[59] Wong at [60].
While I appreciate this evidence may not be the best evidence, it is the only probative evidence available to the Tribunal. The information provided by BMC does show that in the periods 2–8 September 2024; 21–27 October 2024 the requirement of item 132b(i) was not met. However, the information provided by BMC does show that in the week of 12–18 May 2025 that the requirements of item 132b(i) of the Rules had been met. It is unfortunate for the Applicants that the days in this week are not a ‘relevant time’ in relation to their applications.
The Applicants further suggested that following St Mary that I should supplement this evidence with the only other evidence before me to reach the requirements of item 132(b)(i). In St Mary hearsay evidence was accepted by the Tribunal of the working hours of two medical practitioners as it was the only evidence before the Tribunal of the number of hours that two of the five medical practitioners were carrying out their duties or available to carry out their duties.[60] However, I find the situation in that case to be different because the evidence was of actual hours worked.[61] The Tribunal was not making a conjecture or attempting to assume the actual hours that were worked from generalised information.
[60] St Mary at [26]–[28].
[61] Ibid at [2]].
I appreciate the efforts both the Respondent and Applicants went to ensure that the Tribunal had relevant evidence before it on the issue of whether the requirements of item 132(b)(i) of the Rules had been met. I am particularly grateful to Ms Hill for admirably discharging her duty to assist the Tribunal.
Although I find the Applicant’s evidence to be problematic, I do not consider it to be through their own fault. I acknowledge the difficulties they encountered.
CONCLUSION
Subsection 10(b) and s 11 of the Rules provide that all of the necessary requirements of item 132(b)(i) must be satisfied in order for the Tribunal to give a favourable recommendation in relation to the application.
I find that the requirements in item 132(b)(i) of the Rules have not been satisfied because, on the available evidence, it appears that there were not the sufficient number of hours worked by prescribing medical practitioners at the time the applications were made.
In the circumstances, I am not required to determine the issue of whether on the day the applications were considered by the Tribunal if there were the sufficient number of hours worked by prescribing medical practitioners.
The decisions of the Authority dated 15 November 2024 and 21 February 2025 to recommend to the Secretary of the Department of Health and Aged Care to refuse the applications made on 5 September 2024 and 22 October 2025 to supply pharmaceutical benefits from a particular premises are affirmed.
Date(s) of hearing: 27 August 2025 Applicant: In person Respondent: In person
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