Bryon Issa and Paul Krassaris and Australian Community Pharmacy Authority Sarah Deas, John Forsyth and Robert Wood OTHER PARTIES
[2013] AATA 292
[2013] AATA 292
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0196
Re
Bryon Issa and Paul Krassaris
APPLICANTS
And
Australian Community Pharmacy Authority
RESPONDENT
And
Sarah Deas, John Forsyth and Robert Wood
OTHER PARTIES
DECISION
Tribunal Deputy President J W Constance
Date 14 May 2013 Place Melbourne 1.The decision of the Australian Community Pharmacy Authority made 3 January 2012, recommending to the Secretary of the Department of Health and Ageing that the application of the Byron Issa and Paul Krassaris made 18 October 2011 be not approved, is set aside.
2.In substitution for the decision set aside it is decided that, in accordance with subsection 99K(1) of the National Health Act 1953 (Cth), it is recommended to the Secretary of the Department of Health and Ageing that the application of Byron Issa and Paul Krassaris made 18 October 2011 be approved.
......................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
AUSTRALIAN COMMUNITY PHARMACY AUTHORITY – application for approval to supply pharmaceutical benefits – whether there was and are at least the equivalent of four full-time prescribing medical practitioners practising – whether there were and are one or two supermarkets which occupied a combined total gross leasable area of at least 2,500 sq. m – whether applicants had and have the legal right to occupy the proposed premises – information to be considered by the Authority – decision under review set aside – recommendation that the application be approved.
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15AB
National Health Act 1953 (Cth) ss 90(3A), 90(3B), 99K
CASES
Alcan (NT) Alumina Proprietary Limited v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Issa and Australian Community Pharmacy Authority and Anor [2012] AATA 374
SECONDARY MATERIALS
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 Explanatory Statement, pt 1, ss 5, 9; pt 2, schs 1, 2, items 132, 211
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
In October 2011 Mr Issa and Mr Krassaris applied for approval to supply pharmaceuticals under the Pharmaceutical Benefits Scheme from a new pharmacy they propose to open in Myrtleford, a country town in Victoria. To do this they need the approval of the Secretary, Department of Health and Ageing, under the National Health Act 1953 (Cth).
As required by the Act, the Secretary referred the application to the respondent Authority, which recommended that the approval not be granted. The Secretary can only grant approval if it is recommended by the Authority.
Mr Issa and Mr Krassaris are seeking a review of the decision of the Authority to recommend that approval not be granted.
Ms Deas, and Messrs Forsyth and Wood, the proprietors of an existing pharmacy business in Myrtleford, have been made parties to the application as their interests are affected by the decision under review.
By reason of the number of parties involved they will be referred to as the Applicants, the Respondent and the Other Parties.
For the reasons which follow the decision under review will be set aside and a decision that it is recommended that the approval be granted, will be substituted.
LEGISLATION
Section 90 of the National Health Act 1953 (Cth) provides for the Secretary of the Department of Health and Ageing to grant approvals to pharmacists to supply pharmaceutical benefits. Subject to provisions that are not relevant here, on receipt of an application the Secretary must refer it to the Authority (s 90(3A)). The Secretary cannot grant approval without the Authority’s recommendation to do so, but he or she may refuse a grant contrary to the Authority’s recommendation (s 90(3B)).
Section 99K of the Act provides:
Functions
(1) The functions of the authority are:
(a) to consider applications under section 90; and
(b) to make, in respect of an application under section 90:
(i) a recommendation whether or not the applicant should be approved under that section in respect of particular premises; and
(ii) if an approval is recommended--recommendations as to the conditions (if any) to which the approval should be subject; and
(2) In making a recommendation under subsection (1), the Authority must comply with the relevant rules determined by the Minister under section 99L.
(3) All recommendations of the Authority under subsection (1) are to be made to the Secretary.
The Rules determined by the Minister are the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 as amended, which came into effect on 18 October 2011. These Rules set out the requirements which must be met before the Authority can recommend that approval be granted. It is not in dispute that if an application meets all the requirements of the Rules the Authority must recommend approval; also it is not in dispute that if the requirements of the Rules are not met the recommendation must be that the application be refused.
It is agreed by all parties that the Applicants have complied with all but three of the relevant requirements of the Rules. I am satisfied on the evidence before me that this agreement is appropriate.
The provisions of the Rules in question are:
(a)Part 2, Schedule 1, Part 2, Item 132, 2(a);
(b)Part 2, Schedule 1, Part2, Item 132, 2(b);
(c)Part 2, Schedule 2, Item 211(a).
Part 2, Schedule 1, Part 2, Item 132, 2(a) provides:
132 New additional pharmacy (at least 10 km)
…
Requirements
2. The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are:
(a) at least the equivalent of 4 full-time prescribing medical practitioners practising;
Part 2, Schedule 1, Part2, Item 132, 2(b) provides:
132 New additional pharmacy (at least 10 km)
…
Requirements
2. The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are:
…
(b) one or 2 supermarkets which occupy a combined total gross leasable area of at least 2500 m2.
Part 2, Schedule 1, Part2, Item 132, 3 provides:
132 New additional pharmacy (at least 10 km)
…
3. For this item, all relevant times means:
(a) on the day on which the application was made; and
(b) the day on which the application is considered by the Authority.
Part 2, Schedule 2, Item 211(a) provides:
Requirements
211 The Authority is satisfied that:
(a) the applicant had, on the day the application was made, and has, on the day the Authority makes a recommendation in relation to the application, a legal right to occupy the proposed premises on or after the day the application was made;
ISSUES FOR DETERMINATION
The following issues arise for determination.
(1)On the day on which the application was made to the Authority, were there located in Myrtleford at least the equivalent of four full-time prescribing medical practitioners practising?
(2)On the day on which the application was considered by the Tribunal, were there located in Myrtleford at least the equivalent of four full-time prescribing medical practitioners practising?
(3)On the day on which the application was made to the Authority, were there one or two supermarkets which occupied a combined total gross leasable area of at least 2,500 sq. m?
(4)On the day on which the application was considered by the Tribunal, were there one or two supermarkets which occupied a combined total gross leasable area of at least 2,500 sq. m?
(5)On the day on which the application was made to the Authority, did the Applicants have a legal right to occupy the proposed premises on or after the day the application was made?
(6)On the day the Tribunal makes a recommendation in relation to the application, do the Applicants have a legal right to occupy the proposed premises?
CONSIDERATION OF THE ISSUES
Issue 1: On the day on which the application was made to the Authority, were there located in Myrtleford at least the equivalent of four full-time prescribing medical practitioners practising?
Prescribing medical practitioner is defined in Part 1 section 5 of the Rules as:
a medical practitioner who provides general practice services to the community in which he or she practises, including the issuing of prescriptions for pharmaceutical benefits.
Full-time is also defined in section 5. The relevant part of the definition reads:
(a) for a prescribing medical practitioner, providing the services of a prescribing medical practitioner for at least 38 hours each week.
Evidence and findings of fact
In a statutory declaration provided with the original application, Mr Issa stated that on 17 October 2011 (the day before the application was made) he was informed by Ms Ryder, the Practice Manager of the Standish Street Surgery, that there were more than four full-time equivalent general practitioners working within the Clinic.[1]
[1] Exhibit A1 p.167.
On the basis of the evidence of Mr Issa I am satisfied that on 18 October 2011 (the day the application was made to the Authority) there were at least the equivalent of four full-time prescribing medical practitioners practising in Myrtleford.
On 18 April 2012 during the hearing of this application the Applicants provided to the Tribunal a statement by Mr Wain dated 17 April 2013.[2] Mr Wain also gave oral evidence.
[2] Exhibit A7. This statement was taken into evidence noting the objection of the Other Parties to the admission of part of that statement.
In his statement of 17 April 2013, which he confirmed when he gave evidence, Mr Wain said that he had reviewed the practice’s documentation with respect to the doctors employed at the surgery as at 18 October 2011. He stated further that as at that date there were seven doctors providing the services of a prescribing medical practitioner and that in the week commencing 17 October 2011 the doctors worked a total of 163 consulting hours.
The Other Parties have objected to this additional evidence being taken into account. For reasons which I will set out later I have decided to accept this evidence. It supports my finding that there were the required number of prescribing medical practitioners in Myrtleford as at the date the application was lodged. However I confirm that I have reached this conclusion without the additional evidence.
Issue 2: On the day on which the application was considered by the Tribunal, were there located in Myrtleford at least the equivalent of four full-time prescribing medical practitioners practising?
Evidence and findings of fact
Mr Wain gave evidence that as at 17 April 2013 eight doctors provided the services of a prescribing medical practitioner from the Standish Street Surgery and that each held a Pharmaceutical Benefits Scheme prescriber number. In the week commencing 15 April 2013 the total hours for which the doctors were rostered to work was 154.5. Included in the total rostered hours was a period of 14 hours to be spent by the doctors consulting at two local aged care facilities. This is a regular weekly occurrence.[3]
[3] Exhibit A7 para. 13.
Mr Wain also stated that each of the seven doctors employed at the surgery is required to work at least 28 hours per week apart from periods of sick leave and annual leave. The eighth practitioner, Dr Shute, is the owner of the practice. Since 17 October 2011 he has worked 21 hours per week in the absence of sick leave and/or annual leave. On the basis of the evidence of Mr Wain I am satisfied that the normal working hours of prescribing medical practitioners practising in Myrtleford as at 18 April 2013 (being the date on which I considered the matter) totalled 177. The difference between this figure and the figure referred to in the preceding paragraph is accounted for by the absence of one practitioner on sick leave and the time spent by another practitioner in training during the week commencing 15 April 2013.
The requirement of the Rules is that I be satisfied that there be “at least the equivalent of four full-time prescribing medical practitioners practising” (emphasis added). The Oxford Dictionary defines “to practise” to include “to be engaged in the profession of law or medicine.”This accords with the ordinary meaning of the word “practising” as meaning that a medical practitioner is normally engaged in carrying out his or her profession rather than meaning that he or she being actually employed in treating patients at a particular time. In my view the correct test in applying Item 132 (2)(a) of the Rules is to determine the number of medical practitioners engaged in the profession of a “prescribing medical practitioner” in the particular town at the time of the application rather than to embark upon a detailed analysis of the precise number of hours those practitioners are rostered to work at that particular date. To adopt the alternative interpretation would mean that even if there were four practitioners, each engaged in full-time practice in a town, an application for the approval under the Rules would fail if one of those practitioners was on short-term leave on the day an application was made or the application was lodged on a public holiday.
However in this case it does not matter whether one looks at the actual hours rostered in a particular week or the normal working hours of the practitioners. On either basis the hours exceed 152, being the equivalent of four full-time practitioners.
I am satisfied that on the day on which the application was considered by the Tribunal there were located in Myrtleford at least the equivalent of four full-time prescribing medical practitioners practising.
The argument on behalf of the Other Parties
It was argued by Counsel for the Other Parties that I should look to the actual hours for which the practitioners were rostered at the time of considering the application, namely 154.5 hours per week. It was argued further that the time spent by practitioners at nursing homes (a total of 14 hours per week) should be deducted, giving a total of hours spent “practising” of 140.5 per week which is less than the equivalent of four full-time practitioners (152 hours per week).
Although I have found that this is not the proper interpretation of the Rule, it is appropriate that I consider this argument further.
Counsel argued that in interpreting the Rules, which are determined by a legislative instrument, I should look to the Explanatory Statement issued by authority of the Minister for Health and Ageing in relation to those Rules.
Section 15AB of the Acts Interpretation Act 1901 (Cth) provides, in part:
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
…
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
I do not accept the argument that I should look to the provisions of the Explanatory Statement. The words “full-time prescribing medical practitioners practising” are neither ambiguous nor obscure and the ordinary meaning of the text does not lead to a result which is either manifestly absurd or unreasonable. There is nothing in wording of the Rules to suggest that any particular aspect of the prescribing practitioners’ practices should be excepted.
In Alcan (NT) Alumina Proprietary Limited v Commissioner of Territory Revenue (Northern Territory)[4] the High Court observed:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[5]
[4] (2009) 239 CLR 27.
[5] (2009) 239 CLR 27, 46-7.
Even if it was appropriate to seek assistance from the Explanatory Statement, in my view it provides no such assistance. It was argued that an example given in relation to the words “full-time PBS prescriber (including medical practitioner)”, which relate to Item 136 of the Rules requires that the words “full-time prescribing medical practitioners practising” (which appear in Item 132) should be read down to exclude time spent by those practitioners practising in a nursing home.
The example relied upon reads:
Full time PBS prescriber (including medical practitioner), means providing the services of a PBS prescriber for at least 38 hours each week. For example, for a medical practitioner, 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. 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.
This example specifically refers to the requirements of Item 136(4). There is no justification for limiting the clear language of Item 132(2) in the same way. Had it been the intention of the Legislature to so limit the words in Item 132 it would have been a simple matter to have said so.
Issue 3: On the day on which the application was made to the Authority, were there one or two supermarkets in Myrtleford which occupied a combined total gross leasable area of at least 2,500 sq.m.?
Supermarket is defined in section 5 of Part 1 of the Rules to mean:
a retail store or market the primary business of which is the sale of a range of food, beverages, groceries and other domestic goods.
In the same section gross leasable area … for a supermarket is defined to mean:
the total floor area of the supermarket excluding loading docks.
Evidence and findings of fact
It is not in dispute that at all relevant times there were two supermarkets operating in Myrtleford, a Coles Supermarket and a Foodworks.
In a statement dated 21 September 2012[6] Mr Gavin Smith, Surveyor, stated that:
·he has estimated the floor area of the Coles and Foodworks supermarkets in Myrtleford using an electronic instrument from outside the premises;
·in his opinion each estimate is accurate to within ten square metres.;
·he estimates the ground floor area of the Coles Supermarket (excluding the loading dock of 65 square metres) to be 1,645 square metres;
·he estimates the ground floor area of the Foodworks supermarket to be 1,040 square metres; he was unable to identify a loading dock on these premises.
[6] Exhibit A2.
The Applicants provided other statements which estimated the combined gross leasable area to be in excess of 2,500 square metres and more than the estimate provided by Mr Smith. In a submission to the Authority the Other Parties stated that they had consulted unspecified planning authorities and that their consultations indicated that the total leasable area of Coles Supermarket is 1,387 sq.m. and that of Foodworks supermarket is 971 sq.m., a total of 2,358 sq.m.[7]
[7] Exhibit A1, p.145.
Having considered all of the evidence I prefer the opinion of Mr Smith. He is a surveyor by profession holding the qualification of Masters of Surveying. He formed his opinions with the assistance of scientific measurement. Although he was unable to identify a loading dock on the Foodworks premises, the evidence provided by the Other Parties is that the loading dock on those premises comprises 140 sq.m. Taking this into account the combined gross leasable area of the supermarkets based on the evidence of Mr Smith is 2,545 sq.m.
Mr Neal, to whose further statements I will refer later, stated on 16 April 2013 that he lives in Myrtleford and is familiar with both supermarkets. He said that since 18 October 2011 he has not observed any construction as to suggest that the floor area size of either supermarket has been altered.[8] The Other Parties objected to the acceptance of this evidence. I will give my reasons for accepting it later in these reasons for decision.
[8] Exhibit A8.
I am satisfied that as at the date the application was made to the Authority, there were two supermarkets in Myrtleford which occupied a combined total gross leasable area of at least 2,500 sq.m.
Issue 4: On the day on which the application was considered by the Tribunal, were there one or two supermarkets in Myrtleford which occupied a combined total gross leasable area of at least 2,500 sq.m.
On the basis of the evidence I have already referred to I am satisfied that on the day on which this application was considered by the Tribunal there were two supermarkets in Myrtleford which occupied a combined total gross leasable area of at least 2,500 sq.m.
Issue 5: On the day on which the application was made to the Authority, did the Applicants have a legal right to occupy the proposed premises on or after the day the application was made?
In a document entitled Letter of Intention to Lease dated 17 October 2011[9] F Neal Superannuation Pty offered to lease to “Paul Krassaris and or Nominees” premises being Shop 151 Myrtle Street, Myrtleford. The lease commencement date was stated to be 1 January 2012. The offer was subject to a number of conditions, one of which was that the offer was subject to Authority approval before 30 December 2011.
[9] Exhibit A1 p.164
In a statement made 25 September 2012[10] Mr Krassaris stated that before he received the Letter of Intention from Mr Neal by email he advised Mr Neal that he and Mr Issa would be the tenants under the proposed lease.
[10] Exhibit A4.
In a statement made 25 September 2012[11] Mr Issa stated that the terms of the Letter of Intention to Lease accurately reflected the terms of an oral agreement made between Mr Neal and himself on 14 October 2011. When these terms were being negotiated Mr Issa told Mr Neal that he and Mr Krassaris would be the tenants under the lease. Mr Krassaris and himself have been in possession of the premises since 1 January 2012 and have paid rent to Mr Neal since that date. The conditions set out in the agreement have been waived or met.
[11] Exhibit A5.
In a statement made 26 October 2012 [12] Mr Neal stated, in part:
·he is a Director of F Neal Superannuation Pty Ltd which is the registered proprietor of the premises known as 151 Myrtle Street, Myrtleford, Victoria;
·at a meeting between Mr Issa and himself on 14 October 2011 an agreement was reached between Mr Issa and himself as to the terms of the lease to them of the premises;
·within two days of the meeting he was contacted by Mr Krassaris who told him that Mr Issa would not be available to sign a document setting out the terms of their agreement and who asked him to specify the tenant as “Paul Krassaris and/or nominees”;
·the agreed terms were later reduced to writing in the document entitled Letter of Intention to Lease;
·at all times during the discussions with Mr Krassaris and Mr Issa he understood that they were leasing the property and intended to operate the pharmacy business in partnership.
[12] Exhibit A6.
Counsel for the Other Parties has argued that I should not take into account the evidence of Mr Neal. Later in these reasons I will set out my reasons for rejecting this argument.
On the basis of the evidence of Mr Krassaris, Mr Issa and Mr Neal I am satisfied that on the day the application was made the Applicants did have a legal right to occupy the premises on and after 1 January 2012. I have reached this conclusion on the basis that at the time the application was made the Letter of Intention to Lease was an enforceable agreement to lease the premises. The Other Parties did not dispute that the agreement between Mr Krassaris and the landlord was enforceable.
Counsel for the Other Parties has argued that I should not be satisfied that both Applicants had a legal right to occupy the premises at the time the application was made. It was put that as the tenant referred to in the Letter of Intention to Lease is “Paul Krassaris and or Nominees”, as at 18 October 2011 Mr Issa had no legal right to occupy the premises.
I do not accept this argument. I am satisfied that at all relevant times it was the intention of all parties to the agreement that the Applicants would be the tenants of the premises and that it was agreed by all parties that the nominee of Mr Krassaris would be Mr Issa. On this basis I am satisfied that Mr Issa could have enforced his agreement with Mr Krassaris had it been necessary and that therefore he had a legal right to occupy the premises.
Issue 6: On the day the Tribunal makes a recommendation in relation to the application, do the Applicants have a legal right to occupy the proposed premises?
In his statement made 25 September 2012[13] Mr Krassaris stated that he and Mr Issa had been in possession of the premises since 1 January 2012 and had paid the rent since that date. The conditions in the Letter of Intention to Lease had been met or varied to allow them to continue in possession.
[13] Exhibit A4.
In a statement made 16 April 2013 [14] Mr Neal stated:
I have agreed with Paul Krassaris and Bryon Issa to extend the current lease arrangement and allow them until 31 December 2013 to obtain an approval to supply pharmaceutical benefits from the Proposed Premises, on the condition that they pay the rent and outgoings specified in the original letter of intention to lease. In the period in which they have been in occupation of the Proposed Premises, Mr Issa and Mrs [sic] Krassaris have continued to pay all rent and outgoings. As at the date of this Statement, there are no arrears as far as I am aware.
[14] Exhibit A8.
On the basis of the evidence to which I have referred in relation to Issue 5 and the additional evidence of Mr Neal I am satisfied that on 14 May 2013, being the date of the publication of the Tribunal’s decision in this matter, the Applicants have a legal right to occupy the proposed premises.
APPLICATION OF SECTION 9 OF THE RULES – INFORMATION TO BE CONSIDERED BY THE AUTHORITY / ADMINISTRATIVE APPEALS TRIBUNAL
Section 9 provides:
9 Information to be considered by Authority
The Authority may consider information provided by an applicant only if:
(a) the information was given at the time the application was made; or
(b) the Authority requested the information.
On 17 September 2012 the Tribunal made the following direction in this matter:
Whereas the applicant sought leave to produce additional material;
a. Leave to produce that material is granted.
b. The applicant must lodge in the Tribunal and serve on the respondent its additional material by close of business Wednesday, 26 September 2012.
It was argued on behalf of the Other Parties that taking into account the provisions of section 9 and the making of the Direction referred to, I should not consider any information relating to the situation at the time the application was made which was not provided to the Tribunal on or before 26 September 2012. I have identified that information in the course of these reasons.
On 8 June 2012 the Tribunal made the following decision in answer to the preliminary question set out:
Question: The preliminary question is whether the Tribunal may, when conducting the review, receive from the Applicant material which was not lodged with the approval application or later requested by the Authority?
Answer: The Tribunal may receive further material from the Applicant, but only if the Tribunal so requests. Whether the Tribunal makes such a request will depend on the circumstances of the particular case.[15]
[15] Issa and Australian Community Pharmacy Authority and Anor [2012] AATA 374.
In making this decision Logan J considered the relevant authorities and gave detailed reasons for his decision. I respectfully agree with the reasons stated and do not intend to canvass those reasons. I will apply them to the material before me.
In giving his reasons Logan J stated in part:
31. I do not read s 9, as the other parties would contend, as imposing what one might term an “evidential straitjacket” on the applicant, confining the applicant in the review proceeding in the Tribunal to that which the applicant gave at the time of the application or that which the Authority requested of the applicant prior to making its decision. Such a construction would be completely at odds with the merits review function consigned to the Tribunal. The Tribunal’s role is to consider the matter afresh, not just to consider in some truncated way making a decision on the merits based on that which was before the primary decision maker.
32. That said, s 9 has to be given some meaning, and that meaning in its application to the Tribunal does, in my opinion, mean that an applicant does not have an unrestricted ability to introduce on a review hearing material that was not in the initial application. It is just that, in the ordinary course of events, there will necessarily be quite some lapse of time between when the application is made initially and when the Tribunal comes to consider the matter on the review. Given that item 132 looks to a position both on the day on which the application was made and the day on which the application is considered by, materially now, the Tribunal, it necessarily follows that, in order completely to discharge its review function, the Tribunal will, in many if not most cases, necessarily have to request information from the applicant as to the present position.
33. The Tribunal might also, in so doing, be persuaded that a request ought also to be made of the applicant for material directed to the position as at the date of the application or requested by the Authority. There can be no hard and fast rule as to whether, if at all, in relation to the position as at that time, such a request ought to be made by the Tribunal. Doubtless, it will be relevant as to whether, having regard to all of the material before the Authority, there is a factual controversy, about whether, as at that time, a particular criterion was met, and if so, the nature of that controversy. As is the Authority itself, the Tribunal could, if it so chose, and may well, take account of an evident purpose of s 9 and, perhaps, also the guidelines in the handbook. I have already referred to the evident purpose of s 9. It may be, having regard to that, that the Tribunal would form the view that an applicant who had lodged but an application bare of supporting material ought not to be given an opportunity to convert what is, after all, merits review into the making of a primary decision.
34. In other words, it may be in a particular case that the Tribunal would form the view that an application devoid of supporting material ought to remain in that form with all the attendant consequences. On the other hand, it may be that in order to review the position as at the time of the application as well as at the time of consideration, that the only way of reviewing on the merits the position as at the time of the application, having regard to a controversy evident at Authority decision stage, is to request the applicant to furnish further information and then also to permit further information to be provided by other interested parties or, perhaps, the Authority itself.
In this matter I have come to the conclusion that I should request and consider all of the material put before the Tribunal by the parties and in particular the material put forward by the Applicants.
In this case the Other Parties have properly objected only to information tendered after the Direction of the Tribunal made on 17 September 2012. While I understand the reasons for the making of the Direction (which was made on the application of the Applicants) parties should expect that in normal circumstances it will be the Tribunal constituted to hear the matter which will decide on the information to be given consideration in reaching the final decision. In his reasons for decision Logan J addressed this issue:
35. None of the parties sought today, as a sequel to the construction of s 9, that I exercise the discretion implicit in s 9 to decide whether to request of the applicant further information. Particularly, as it by no means follows that the Tribunal will be likewise constituted as it is today for the hearing of the balance of the review, it would not be appropriate for me to make any observations as to whether or not, in the particular circumstances prevailing, the discretion to request information should or should not be exercised.
On any fair reading of the application made on 18 October 2011 it cannot be characterised as “an application bare of supporting material” as referred to by Logan J.[16] It is apparent that the application was lodged as soon as the new Rules came into effect. The Applicants were entitled to do so. The application was supported by a substantial amount of relevant information which addressed each of the matters required by the legislation.
[16] At para. 33.
I note that the last page of the Letter of Intention to Lease the subject premises was provided after the application was made. On this page were the signatures on behalf of the proposed landlord and of Mr Issa on behalf of the proposed tenants. I cannot ascertain any legitimate reason for a decision-maker in this application not to have requested this information before making a decision. The first page of the document was provided. It would be most unfortunate if an administrative decision of such consequence as this one was made on the basis of an apparent administrative error.
I note also that a statutory declaration of Mr Issa dated 17 October 2011[17] was inadvertently omitted from the original application. Again there is no apparent reason why that document should not have been requested prior to a decision having been made in respect of the application.
[17] Exhibit A1 p.167.
CONCLUSION
The decision of the Australian Community Pharmacy Authority made 3 January 2012, recommending to the Secretary of the Department of Health and Ageing that the application of the Applicants made 18 October 2011 be not approved, will be set aside.
In substitution for the decision set aside it will be decided that, in accordance with subsection 99K(1) of the National Health Act 1953 (Cth), it is recommended to the Secretary of the Department of Health and Ageing that the application of Byron Issa and Paul Krassaris made 18 October 2011 be approved.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
......................[sgd].................................................
Associate
Dated 14 May 2013
Date(s) of hearing 18 April 2013 Counsel for the Applicant Mr D Favell Solicitors for the Applicant Gadens Lawyers Advocate for the Respondent Mr D Lukic Solicitors for the Respondent Australian Government Solicitor Counsel for the Other Parties Ms R Henderson Solicitors for the Other Parties Meridian Lawyers
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