Choice Pharmacy Vincentia Pty Ltd v Australian Community Pharmacy Authority

Choice Pharmacy Vincentia Pty Ltd sought judicial review of a decision by the Australian Community Pharmacy Authority (Authority) to recommend and the Secretary to approve a supply of pharmaceutical benefits from particular premises. The primary legal issue was whether the Authority's recommendation and the Secretary's approval were authorised by the National Health Act 1953 (Cth). Another significant issue was whether there was evidence to justify the Authority's recommendation and the Secretary's approval that the premises met the definition of "large medical centre" under the National Health (Australian Community Pharmacy Authority Rules) Determination 2011.

The Court found that the Authority's recommendation and the Secretary's approval were not authorised by the Act because the Authority based its recommendation on a critical fact that did not exist. The Court held that the requirement that a medical centre operate at least 70 hours each week must be interpreted as requiring the medical centre to operate at least 70 hours each and every week, including public holidays. Since there was evidence that the medical centre was not open on public holidays, it did not meet the definition of "large medical centre". Consequently, the Authority should have recommended that the Secretary not approve the application. As a result, ground 2A of the amended originating application was made out.

The Court allowed the parties a period of 14 days to bring in agreed draft orders reflecting these reasons and addressing the issues of relief and costs or, alternatively, to provide the Court with the orders for which each party contends in light of these reasons and to make short submissions on the appropriate relief and as to costs.